The European Union and wildlife trafficking

Article 7 of Regulation 338/97 provides for special treatment of specimens of species that are listed in Annex A of Regulation 338/97, but are born and bred in captivity (Article 54 of Regulation 865/2006) or cultivated. Such species are to be treated as Annex B-species; this has in particular the consequence that the prohibitions of Article 8 - purchase, offer to purchase, any commercial activity etc. - shall not apply to them. For cultivated plants, some more exceptions apply.

Another derogation concerns dead specimens, and parts or derivatives of species. Strict import, export and re-export requirements, which are laid down in Articles 4 and 5 of Regulation 338/97, shall not apply to them (Article 7(3)). This derogation may concern, for example, tourist trophies, stuffed animals or other non-commercial possessions. The Commission adopted implementing provisions in this regard (Articles 57 and 58 of Regulation 865/2006), but the application in concrete cases remains difficult, all the more as Regulation 338/97 is based on the present Article 192 Treaty on the Functioning of the European Union and allows Member States to maintain or introduce stricter environment protection provisions as regards animals born or bred in captivity (case C-510/99); it is not always clear, though, what "stricter" means in practice.

Some examples might illustrate this:

In case C-154/02, a Swedish citizen was accused of having purchased some stuffed Annex A-specimens, among others a brown bear, some owls, eagles and buzzards. The Court of Justice of European Union (further – the CJEU) held that stuffed animals came under the provisions of Regulation 338/97. This meant that the possession of stuffed animals belonging to Annex A-species was prohibited (Article 8(1)), unless the exception of Article 8(3)(b) applied which concerned animals that were acquired more than 50 years ago. It was up to the national court to decide whether this was the case; anyhow, according Article 8(3), the competent management authority had to issue a corresponding certificate, acknowledging the fact that the animal was stuffed more than 50 years ago.

In case C-219/07, a Belgian law was questioned as to its compatibility with EU law. That law also prohibited trade in some mammals that were not included in Annex A of Regulation 338/97. The CJEU considered the Belgian measure to be, in principle, possible under the present Article 193 TFEU. It was left to the national court to decide whether the legislation was disproportionate, as there were less restrictive means for protecting animals available, but fixed a number of criteria to answer that question.