The Guest Blog

Guest post by Matthew Spiegl, lawyer and the legal counsel for the Free Morgan Foundation (Netherlands) and Dr. Ingrid N. Visser, whale biologist and the co-founder of the Free Morgan Foundation.

Words matter; the arrangement of words, the grammatical structure of sentences, the syntactical separation of subject and the disjunction of dissimilar provisions by paragraphs, sub-paragraphs and sections, are basic foundational tenants of composing effective legislation and regulations.

Therefore, when the European Council lays out a clearly defined structure in a Regulation, it is reasonable to expect that the Commission will adhere to the strict construction of that Regulation.

It is also incumbent upon the Commission to act in good faith when carrying out those duties to the fullest extent to which it has been empowered.

Conversely, it is unacceptable for the Commission to weaken or expand explicit exemption provisions beyond what the Council intended. On this point we should all be in agreement – the rule of law and the functioning of the Union depends on it.

Due to the European Single Market and the absence of systematic border controls within the EU, the provisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) are expected to be applied uniformly in all EU Member States.

CITES is implemented in the EU through a set of Regulations known as the EU Wildlife Trade Regulations (Council Regulation (EC) 338/97). There are a few additional legal caveats under the Council Regulation which result in even stronger protections than CITES for a grouping of wild-born specimens listed in Annex A.

orca in captivity
© Ingrid N. Visser/Free Morgan Foundation.

The Commission’s charge under Council Regulation (EC) 338/97 includes the responsibility to effectively merge the objectives of CITES with the EU Wildlife Trade Regulations. To accomplish this, the Commission is tasked with presiding over the Committee on Trade in Wild Fauna and Flora; the Group of Experts of the Competent CITES Management Authorities; the Scientific Review Group (SRG); and the Enforcement Group.

The SRG Guidelines for 2017, state that specific permitting under this system “… allow[s for] greater scrutiny of commercial activities involving Annex A species of European or global conservation concern” and that such permitting is “…considered by the Enforcement Group to be … a crime prevention measure, deterring the laundering of wild specimens into the system.”

All of this is supposed to place the Union at the forefront of wildlife trade and protection policies. This is important because annually, international trade in specimens of wild animals and plants is estimated to be worth billions of Euros.

But, are the Commission and the European Parliament truly committed to protecting wild-born Annex A specimens? Article 8(1) of Council Regulation (EC) 338/97 explicitly states that “… display to the public for commercial purposes, use for commercial gain … of specimens of the species listed in Annex A shall be prohibited” – unless an exemption is granted.

A reasonable person would consider this a high standard. The Commission contends, however, that authorization for any one of the three separate and mutually exclusive exemptions provided in Articles 8(3)(e), (f) and (g) of Council Regulation (EC) 338/97 can be interpreted with legal certainty by referring to a single line of “transposed” and condensed text, found on line 18.8 of Form V of Commission Regulation 865/2006 where it implies non-exclusive use; “are to be used for the advancement of science/breeding or propagation/research or education or other non-detrimental purposes.”

Precise transposition of Council Regulations and Directives is not just a responsibility of Member States. It is a fundamental obligation of the Commission itself. Implementing Regulations drafted by the Commission should be exacting in both purpose and effect, as the Council intended.

When the Commission does not meet the requirements of legal certainty; when derogations from general provisions are not interpreted restrictively, as required under the settled case-law of the Court of Justice, the process collapses and mischief ensues.

In February 2016, the Commission adopted the EU Action Plan Against Wildlife Trafficking which sets out a comprehensive blueprint to fight wildlife crime inside the EU. According to the Commission “wildlife trafficking is not a new phenomenon, but its scale, nature and impacts have changed considerably in recent years…the world is currently facing a dramatic surge in wildlife trafficking.” The Commission also reports that “wildlife trafficking has become one of the most profitable criminal activities worldwide, with devastating effects for biodiversity and negative impact on the rule of law due to its close links with corruption.”

The irony of the EU Action Plan Against Wildlife Trafficking and the current topic for this Op-Ed, is that it is set against the backdrop of the institutions of Parliament and the Commission in Brussels – long rumored a channel for unsavory trafficking of orcas (killer whales).

The Commission’s transposition of Council Regulation (EC) 338/97 has recently been challenged in the Petitions Committee of the European Parliament. There, it has been submitted that the Commission should be held to the same standard as individual Member States regarding transposition precision, specificity, clarity and legal certainty.

The Commission should acknowledge that exemptions cannot be given a broader scope than the law laid down to implement them. After all, the Commission has long followed the precedent that vague general clauses are not sufficiently precise to ensure transposition of the specific obligations imposed by a Directive. [C-6/04, Commission v. United Kingdom Failure of a Member State to fulfill obligations – Directive 92/43/EEC – Conservation of Natural Habitats – Wild Fauna and Flora.]

Yet, in this instance, to evade accountability, the Commission has narrowly focused on the details of an individual case when it should be concentrating on the bigger picture. It is as if the Commission cannot see the forest for the trees. This puts all Annex A specimens in the EU at risk of commercial exploitation.

Both the Commission and the European Parliament should act accordingly and refer this transposition and infringement issue to the Court of Justice for a definitive interpretation of Union law.



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