Notable Cases and Useful Documents
The Court of Justice of the European Union (CJEU) interpreted Regulation (EC) No 338/97 in the following cases:
In Case C-154/02 (Nilsson), the CJEU interpreted the notion of worked specimen within the meaning of Article 2(w) of Regulation No 338/97. It concluded that the animals referred to in Annex A but which have been stuffed fall within the definition of worked specimens if four conditions are satisfied: first, it must be significantly altered from its natural raw state; second, the purpose of that alteration must be the production of jewellery, items of adornment, art or utility, or musical instruments; third, it must be clearly in one of those categories; and, fourth, no further carving, crafting or manufacture must be needed for it to effect its purpose.
The issue of whether the raw natural state has been significantly altered does not depend on the outer appearance of the specimen in question, but rather on whether its general state has undergone alteration. Both conventional stuffing, where the hide is stripped and the pelt is tanned and stuffed, and modern taxidermy methods alter the specimens in a complete and profound manner. Consequently, the first condition according to which a specimen, in order to be considered as worked, must be significantly altered, is certainly met in the case of a stuffed animal. As regards the three other conditions, it is clear that whether the animal was stuffed for jewellery, adornment, art, utility, or musical instruments, whether it must be clearly in one of those categories, and whether no further carving, crafting or manufacture is needed for it to effect its purpose depends on the individual case. It is for the national court to ascertain whether the criteria are met.
Furthermore, according to the CJEU, receiving specimens as a gift or inheriting them, and killing animals and then taking them into one's possession, makes them acquired within the meaning of Article 8(3)(b) of Regulation No 338/97. It is not necessary that the person who acquired the specimen more than 50 years previously be the present owner. Notwithstanding the provision in the second paragraph of Article 32 of Regulation No 1808/2001, Article 8(3)(b) of Regulation No 338/97 must be interpreted as meaning that the management authority of the Member State concerned must have been able to ascertain that the specimen in question was acquired in accordance with the conditions laid down in Article 2(w) of Regulation No 338/97.
In Case C-219/07 (Nationale Raad van Dierenkwekers en Liefhebbers and Andibel), the CJEU dealt with rules which prohibited any commercial use of certain specimens, save where those specimens were explicitly referred to in those national rules. More specifically, a Belgian national decree gave rise to an absolute prohibition on importing from another Member State, holding or trading in mammals belonging to species which are not included in the ‘positive’ list attached to the decree. The CJEU concluded that EU law does not preclude such national legislation if the protection of or compliance with the species protection cannot be secured just as effectively by measures which obstruct intra-Community trade to a lesser extent. It is for the national court to determine, inter alia, whether the national list is based on objective and non-discriminatory criteria, and whether the conditions for the holding of specimens of mammals not referred to in that list are objectively justified and do not go beyond what is necessary to achieve the objective pursued by the national legislation as a whole.
In Case C-344/08 (Rubach), the CJEU provided guidance on the standards of evidence of lawful acquisition of specimens. Mr Rubach acquired exotic spiders of a protected specimen belonging to species listed in Annex B to Regulation No 338/97 at terrarium fairs, and he began breeding those arachnids in captivity and auctioning them on the internet. Criminal charges were brought against him. According to the CJEU, Regulation No 338/97 does not specify what evidence must be used to establish that specimens of species listed in Annex B have been acquired lawfully, in accordance with the conditions laid down in Article 8(5), in particular where those specimens have been born in captivity within the Community. The task of determining what evidence may establish that those conditions have been met is thus left to the competent authorities of the Member States. That evidence includes the licences or certificates provided for in Regulation No 338/97 or any other appropriate document which may be deemed useful by the competent national authorities. Any type of evidence accepted under the procedural law of the Member State concerned in similar proceedings is in principle admissible for the purpose of establishing whether specimens of animal species listed in Annex B were lawfully acquired. Also in light of the principle of the presumption of innocence, such a person may adduce any such evidence to prove that those specimens lawfully came into his possession in accordance with the conditions laid down in that provision.
The judgment in Case C-87/20 (Hauptzollamt B) concerns sturgeon caviar seized by German customs. The CJEU was answering the question whether the entire quantity of imported caviar (here 300 g) could be seized or only the quantity exceeding the threshold for which an import permit (125 g) was required under the implementing regulation of Regulation No 338/97. The CJEU first held that the caviar could be classified as 'specimens of a personal or family nature', even though the importer had declared that he intended to give the caviar to a third party. There was nothing to suggest that the caviar was used for commercial purposes. Such a qualification is, on the other hand, permissible where the said caviar is owned or held privately for non-commercial purposes, irrespective of whether it is intended to be given to a third party. Consequently, the CJEU ruled that all caviar imported without a permit must be confiscated, particularly in view of the objective of the legislation in question, which is to ensure the fullest possible protection of species of wild fauna and flora.
Case C-532/13 (Sofia Zoo) concerns the interpretation of Article 11(2)(a) and (b) of Regulation No 338/97 (validity of and special conditions for permits and certificates). A border check of a Serbian national entering Hungary en route to Bulgaria discovered a cargo of 17 specimens originating from Tanzania. In order to prove the origin of the animals, a copy of the CITES import permit issued by the Bulgarian authorities was produced. The order for reference indicates that it was clear from the accompanying documents that the animals were being transported from the Netherlands to Sofia Zoo in order to undergo quarantine and that they would subsequently be transported back to the Netherlands through Hungary. The cargo was confiscated, and Sofia Zoo’s action sought to have the seizure decision reviewed. The zoo argued that the invalidity of the import permits may concern only those specimens of animals actually affected by the grounds of invalidity, with the result that only those specimens may be seized and confiscated, and not the other specimens which fall within the scope of Regulation No 338/97. The CJEU agreed and ruled that an import permit which does not comply with the conditions laid down in the regulation must be considered void only in respect of the specimens actually affected by the grounds of invalidity of that import permit.
In Case C-659/20 (Ministerstvo životního prostredí), the CJEU elaborated on the concept of breeding stock. The request had been made in the proceedings concerning the grant of an exemption from the prohibition of trade for five specimens of parrots (hyacinth macaw). The grandparents of those parrots were initially imported to Slovakia and then to the Czech Republic in 1993, under circumstances incompatible with CITES. The exemption was not granted as the current owner was unable to demonstrate the origin of the grandparent pair. The CJEU concluded that Article 1(3) of Regulation No 865/2006 must be interpreted as meaning that the term ‘breeding stock’, within the meaning of that provision, does not include the ancestors of specimens bred in a breeding operation, which have never been owned or kept by that operation. At the same time, the EU law precludes a specimen, kept by a breeder, of a species of animal referred to in Annex A to Regulation No 338/97 from being regarded as having been born and bred in captivity, where the ancestors of that specimen, which do not form part of the breeding stock of that breeder, were acquired by a third party before the entry into force of those regulations in a manner which is detrimental to the survival of the species concerned in the wild. The fact that the regulatory framework in force was less stringent when the breeding stock was purchased, since the Czech Republic was not yet a member of the European Union at that time, is irrelevant.