Court upholds states' rights to protect wild birds

EU: November 2, 2001

LUXEMBOURG - The European Court of Justice said France could prohibit the sale of macaw offspring bred in captivity from birds captured in the French Guyane if no less restrictive means could be found to protect and preserve the species there.

This issue was raised in criminal proceedings against Xavier Tridon for selling captive born and bred macaws raised from birds illegally captured in France's overseas department of Guyane.

At trial Tridon argued this prohibition violated European rules on trade as well as the Convention on international trade in endangered species of wild fauna and flora (CITES).

The object of CITES is to protect certain endangered species of wild fauna and flora by regulating international trade. It protects species based on category, according to how great the threat of extinction is for a species.

Appendix I to CITES includes the most endangered species, with the strictest rules on protection. Appendix II, which include those not necessarily now threatened with extinction, are subject to less stringent rules.

The CITES Convention allows signatories to impose stricter rules against the sales of wild animals but also permits species bred in captivity to be traded, even where the risk of extinction exists.

However, if a bird is captured in the wild illegally and then used for commercial breeding purposes, its offspring cannot be sold as birds bred in captivity.

In the French territory of Guyane, legislation was adopted to protect certain species of macaw by prohibiting the destruction or removal of eggs or nests, the mutilation, capture or removal or the preservation by taxidermy or, whether they are living or dead, the transport, door-to-door sale, use, offering for sale, or purchase.

Although the court noted that the Guyane decree was more restrictive than CITES and might restrict trade, it said "such a restriction may, however, be justified on grounds of the protection of endangered species."

The court said it did not have enough information to determine if the protection of macaws could be done with measures less restrictive on EU trade, as the European Commission argued, than an absolute ban on the sale of captive birds and left that issue to the French national court.

"It is clear that the assessment to be made of the proportionality of the prohibition of trade at issue in the main proceedings, in particular whether the objective sought could be achieved by measures having less effect on intra-Community trade, cannot be performed in the present case without additional information, and that such an assessment requires a specific analysis on the basis of scientific studies and of the factual circumstances of the main proceedings, it being for the national court to make that analysis," the court said.

The French court will now rule in light of the analysis provided by the Euro court.

**** EXCERPT FROM THE JUDGMENT Case C-510/99, REFERENCE to the Court under Article 234 EC by the Tribunal de grande instance de Grenoble (France) for a preliminary ruling in the criminal proceedings before that court against Xavier Tridon,third parties:

Fidiration dipartementale des chasseurs de l'Ishre and Fidiration Rhtne-Alpes de protection de la nature (Frapna), section Ishre, on the interpretation of Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC), Council Regulation (EEC) No 3626/82 of 3 December 1982 on the implementation in the Community of the Convention on international trade in endangered species of wild fauna and flora (OJ 1982 L 384, p. 1), in particular Articles 6 and 15, Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (OJ 1997 L 61, p. 1) and the Convention on international trade in endangered species of wild fauna and flora concluded in Washington on 3 March 1973, in particular Articles VII and XIV,

*** THE COURT hereby rules:

1. - As regards species covered by Appendix I to the Convention on international trade in endangered species of wild fauna and flora, concluded in Washington on 3 March 1973, Council Regulation (EEC) No 3626/82 of 3 December 1982 on the implementation in the Community of the Convention on international trade in endangered species of wild fauna and flora must be interpreted as not precluding legislation of a Member State which lays down a general prohibition in its territory of all commercial use of captive born and bred specimens.

- As regards species covered by Annex A to Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein, that regulation must be interpreted as not precluding legislation of a Member State which lays down a general prohibition in its territory of all commercial use of captive born and bred specimens.

2. - As regards species covered by Appendix II to the Convention, Regulation No 3626/82 does not prohibit the commercial use of specimens of those species, apart from the case referred to in Article 6(2) where the specimens have been introduced contrary to Article 5 of that regulation. - As regards species covered by Annex B to Regulation No 338/97, that regulation does not prohibit the commercial use of specimens of those species, provided that the conditions laid down in Article 8(5) of that regulation are met.

Those regulations preclude legislation of a Member State imposing a general prohibition in its territory of all commercial use of captive born and bred specimens of those species, in so far as it applies to specimens imported from other Member States, if it is apparent that the objective of protection of the latter, as referred to in Article 15 of Regulation No 3626/82 or Article 36 of the EC Treaty (now, after amendment, Article 30 EC), may be achieved just as effectively by measures which are less restrictive of intra-Community trade.

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