# EUR-Lex - 52012PC0044 - EN

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# 52012PC0044

**Proposal for a COUNCIL DECISION on the submission by the European Union of an amendment of Appendix III to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) /* COM/2012/044 final - 2012/0020 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

Porbeagle (Lamna
nasus) is distributed throughout the North Atlantic Ocean and in a broad
circumglobal band in the Southern hemisphere. Lamna nasus is an active, warm-blooded, relatively slow growing and late
maturing, long-lived species, which bears only small numbers of young. It falls
into FAO’s lowest productivity category of most vulnerable aquatic species.
Atlantic stock assessments describe marked historic and recent declines.
Exploitation of stocks in other oceans of the Southern Hemisphere is largely
unmanaged and unlikely to be sustainable. The species is particularly
vulnerable to overfishing. It is very vulnerable to fishing
pressure due to its low productivity. It has been experiencing steep decline in
the North Atlantic over the last decades, especially in the North East
Atlantic, which led the EU to prohibit fishing for this species. This prohibition
applies to EU vessels as well as to foreign-flagged vessels carrying out their
activities in EU waters. Fishing for porbeagle is also prohibited in the North
East Atlantic Ocean through a decision by the North East Atlantic Fisheries
Commission (NEAFC). Fishing continues to occur in the North West Atlantic as
well as in the Southern Hemisphere. Apart from NEAFC, there are currently no or
very few measures adopted within Regional Fisheries Management Organisations
(RFMOs) on the management and conservation of porbeagle, and there is limited
information on the domestic legislation in place in other range States. It is also
believed that a large number of catches for porbeagle remains unreported.

Against this
background, the EU proposed in 2007 and 2010 that porbeagle be included in
Appendix II of the CITES Convention. Those proposals were endorsed by a
majority of CITES Parties but did not reach the 2/3 threshold required for
their adoption. A proposal was also made by the EU to prohibit fishing within
the International Commission for the Conservation of Atlantic Tunas (ICCAT) in
2009 and 2010 but was rejected.

Available data
on the extent of international trade in porbeagle and its impact on the status
of the species are scarce. There is indeed currently no internationally-agreed specific
data for porbeagle specimens, which would allow quantifying the volume of
international trade in that species. There are however clear indications that
porbeagle parts or derivatives enter international trade and that there is an
important international market for products like meat or fins. The EU is
thought to be one of the main markets for porbeagle specimens and has therefore
a key responsibility in ensuring that such trade is sustainable.

Data on international trade in porbeagle
are necessary to assess the impact of international trade on the conservation
of the species. Gathering data on international trade requires international
cooperation. The best way to ensure such cooperation is for the EU Member
States to include the species in CITES Appendix III. This is also fully in line
with the European Community Plan of Action for sharks adopted by the Commission
in 2009.

According to Article XVI of the Convention
any Party may at any time submit to the Secretariat a list of species for
inclusion in Appendix III. An amendment to Appendix III takes effect
automatically 90 days after the submission is communicated to the Parties by
the Secretariat.

The effect of the inclusion of a species in
Appendix III is that any export of porbeagle from the EU would have to be
accompanied by an export permit attesting the legality of the catch. Other
types of trade (export into the EU, or trade between non-EU Parties) would
require that a certificate of origin be produced by the exporting country.

An Appendix III
listing would provide all CITES Parties with (as a minimum) data on the origin
and quantity of the specimens traded; this will improve the knowledge base on
the factors affecting porbeagle conservation in view of any possible
conservation and/or trade measures that States or international organisations
might want to take in the future.

An Appendix III
listing would make sure that CITES Parties pay special attention to the
conditions under which porbeagle specimens are harvested and traded and might
foster the adoption of conservation measures, where they are not yet in place,
to ensure its sustainable exploitation.

2.           RESULTS OF CONSULTATIONS WITH THE
INTERESTED PARTIES AND IMPACT ASSESSMENTS

The proposal to include porbeagle into
CITES Appendix III has been discussed at numerous occasions with the EU Member
States at meetings of the EU wildlife trade Committee on 11 June 2010, 15
September 2010, 6 December 2010, 22 March 2011 and 26 July 2011. Broad support
was expressed at this Committee in favour of the inclusion of porbeagle into
CITES Appendix III.

CITES Parties were also informed about the
possible intention by the EU to include porbeagle into CITES Appendix III
through a letter sent on 27 May 2011. Apart from Japan and China (which contest
that marine species be dealt with in the CITES framework), the observations
transmitted to the European Commission were rather supportive (especially from
the USA, New Zealand, Turkey, Croatia, Montenegro, while Australia indicated
that this inclusion could jeopardise the chance of success of a future proposal
for inclusion into CITES Appendix II).

The consequences of the inclusion would be
limited in terms of socio-economic and administrative costs: it would require
that the EU Member States exporting porbeagle provide an export permit
attesting that they have been harvested legally. Given that porbeagle fishing
is prohibited in the vast majority of the EU waters, the volume concerned is
likely to be limited. Other countries trading porbeagle would have to issue a
certificate of origin.

3.           LEGAL ELEMENTS OF THE PROPOSAL

The CITES Convention is implemented within
the EU through Council Regulation (EC) No 338/97 of 9
December 1996 on the protection of species of wild fauna and flora by
regulating trade therein[1]. The inclusion of porbeagle into CITES Appendix III will result in
the inclusion of the species into Annex C of Council Regulation (EC) No 338/97,
which shall apply as soon as the inclusion in Appendix
III to the Convention takes effect. As this will impact
both the EU environmental and trade policies, the substantive legal basis for
the Council decision should be Article 192, paragraph 1,
and Article 207 of the Treaty on the Functioning of the European Union. The
procedural legal basis should be Article 218, paragraph 9, as this Decision
relates to the establishment of an EU position in view of the modification of
an Annex of the CITES Convention which have legal effects.

2012/0020 (NLE)

Proposal for a

COUNCIL DECISION

on the submission by the European Union of
an amendment of Appendix III to the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 192, paragraph 1
and Article 207, in conjunction with Article 218, paragraph 9,

Having regard to the proposal from the
European Commission,

Whereas:

(1)
The Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES) is implemented in the
European Union (hereinafter: EU) by Council Regulation (EC) No 338/97 of
9 December 1996[2].

(2)
The species Lamna nasus is very
vulnerable to fishing pressure due to its low productivity. It has been
experiencing steep decline in the North Atlantic over the last decades,
especially in the North East Atlantic, which led the Union to prohibit fishing
for this species. This prohibition applies to Union vessels as well as to
foreign-flagged vessels carrying out their activities in Union waters. Exploitation of stocks in other oceans of the Southern Hemisphere is
largely unmanaged and unlikely to be sustainable.

(3)
As the Union considered that the species may
become threatened globally with extinction unless international trade is
subject to strict regulation in order to avoid utilisation incompatible with
its survival, it proposed its inclusion into CITES Appendix II at CITES CoP14
(2007) and CoP15 (2010). Those proposals did not reach the 2/3 thresholds of
the Parties required under the CITES Convention for their adoption. As there is
no evidence of a recovery of the species, and in the absence of international
regime designed to ensure its management and conservation in all its area of
repartition, further action by the Union is needed to protect the species.

(4)
It is believed that international trade has been
playing a considerable role in driving the overexploitation of porbeagle. There
are currently no internationally-agreed specific data on trade in porbeagle
specimens and gathering such trade data is necessary to assess the impact of
international trade on the conservation of the species. With a view to
fostering international cooperation for the control of trade in specimens of
the Lamna nasus species and a better protection of the species, it
should be included in Appendix III to the CITES Convention by all Member
States.

(5)
According to Article XVI of the CITES Convention,
an amendment to Appendix III takes effect automatically 90 days after the
submission is communicated to the Parties by the Secretariat. This amendment to the Appendices of the Convention will affect the Union
legislation concerned, as any export of porbeagle from
the Union would have to be accompanied by an export permit attesting the
legality of the catch. Other types of trade (export into the Union, or trade
between non-Union Parties) would require that a certificate of origin be
produced by the exporting country.

(6)
As the so-called "Gaborone" amendment
to the CITES Convention has not entered into force, the Union is not yet a
party to the Convention.

(7)
In such circumstances a Union decision to
include Lamna nasus in Appendix III to the CITES Convention should be
expressed by the Member States acting jointly in the interest of the Union in a
manner consistent with the requirement of unity in the external representation
of the Union.

(8)
The joint submission for inclusion of Lamna
nasus in Appendix III to the CITES Convention should therefore be sent to
the CITES Secretariat by the Member State holding the Presidency of the Council of the European Union acting as a
representative of the Member States.

HAS ADOPTED THIS DECISION:

Article 1

The Member States, acting
in the interest of the European Union, shall jointly submit to the CITES Secretariat a request to include in
Appendix III of the CITES Convention the species Lamna nasus. The joint
submission shall be sent to the CITES Secretariat by the Member State holding the Presidency of the Council of the European Union,
as outlined in the Annex to this
Decision.

Article 2

This Decision is addressed to the Member
States.

Done at Brussels,

For
the Council

The
President

ANNEX

Submission by [the Member State holding the Presidency of the Council of the European
Union] on behalf of the EU Member States to the CITES
Secretariat in view of the inclusion of Lamna
nasus into Appendix III of the CITES
Convention.

In accordance with Article XVI(1) of the
Convention, and after consultation with other
interested CITES Parties, [the Member State holding the Presidency of the Council of the European
Union] submits the inclusion of Lamna
nasus into Appendix III of the Convention.

The Secretariat is
therefore requested to include in Appendix III of the CITES Convention for the
27 EU Member States (Belgium, Bulgaria, Czech Republic,
Denmark, Germany, Estonia, Ireland, Greece, Spain, France, Italy, Cyprus,
Latvia, Lithuania, Luxembourg, Hungary, Malta, Netherlands, Austria, Poland,
Portugal, Romania, Slovenia, Slovakia, Finland, Sweden, United Kingdom) the species indicated below:

FAUNA

Chondrichthyes
(Subclass: Elasmobranchii)

Lamniformes

Lamnidae

Lamna nasus (Bonnaterre, 1788)

Figure 1. Porbeagle Lamna
nasus

(Source: FAO
Species Identification Sheet)

Please find
enclosed in Annex 1 an overview of the measures taken by the European
Union to implement the recommendations contained in Resolution Conf.
9.25 (Rev. CoP15).

Yours
sincerely,

Annex 1

Measures taken by European Union to implement the
recommendations contained in Resolution Conf. 9.25 (Rev. CoP15)

–
EU domestic regulations applying to porbeagle
management, conservation and trade

The EU domestic regulations to prevent or restrict exploitation of
porbeagle and to control trade for the conservation of this species are as
follows:

·
Council Regulation (EU) No 57/2011 of 18
January 2011 prohibits fishing for porbeagle[3]. This applies to EU vessels as
well as to foreign-flagged vessels carrying out their activities in EU waters;

·
Council Regulation (EC) No 1224/2009 of 20
November 2009 sets out the measures for control,
enforcement and sanction against infringements to the rules of the EU Common
Fisheries Policy[4].
It applies in case to porbeagle as for all other species subject to the EU
Common fisheries policy;

·
Council Regulation (EC) No 1005/2008 of 29
September 2008[5] sets out the rules applying to imports of fishing products into the
EU.

In addition, the North East Atlantic Fisheries Commission (NEAFC)
agreed at its annual meeting in November 2010 to ban all directed fisheries for
porbeagle in 2011 in its regulatory area.

European Union regulations are directly
applicable in all the Member States of the European Union.

[1]               OJ L
61, 3.3.1997, p. 1

[2]               OJ L 61, 3.3.1997, p. 1.

[3]           see attached link to access the Regulation http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:024:0001:0125:EN:PDF
porbeagle is covered by Article 5(1), in conjunction with Annex IA, page 29,
and Article 8(1)(e)).

[4]           see attached link to access the Regulation http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:343:0001:0050:EN:PDF

[5]           see attached link to access the Regulation http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:286:0001:0032:EN:PDF