Opinion of the Advocate General — ECLI:EU:C:2022:159
Date: 2022-03-03
Language of the case: Czech
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Czechia

Translation  C-659/20 – 1 
Case C-659/20 
Request for a preliminary ruling 
Date lodged: 
4 December 2020 
Referring court:  
Nejvyšší správní soud (Czech Republic) 
Date of the decision to refer: 
25 November 2020 
Applicant  
ET 
Defendant:  
Ministerstvo životního prostředí 
  
O R D E R  
The Nejvyšší správní soud (the Supreme Administrative Court, Czech Republic) 
has ruled […] in the case of the Applicant: ET, residing at […] Hradec Králové, 
[…] against the Defendant: Ministerstvo životního prostředí (the Ministry of the 
Environment), having its registered office at […] Prague 10, against the 
Defendant’s decision of 7 November 2016, ref. no. 1329/550/16-Ba, […], in 
proceedings concerning the Applicant’s appeal on a point of law challenging a 
judgment of the Krajský soud v Hradci Králové (the Regional Court in Hradec 
Králové, Czech Republic) of 30 May 2018, ref. no. 30 A 37/2017-35, 
a s  f o l l o w s : 
I. The following questions are hereby submitted to the Court of Justice of the 
European Union for a preliminary ruling: 
1. Does ‘breeding stock’, as defined by Commission Regulation (EC) 
No 865/2006 laying down detailed rules concerning the 
implementation of Council Regulation (EC) No 338/97 on the 
protection of species of wild fauna and flora by regulating trade 
therein, include specimens that are the parents of specimens bred 
EN 
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by a given breeder, even though that breeder never owned or kept 
them? 
2. If the answer to the first question is that such parent specimens do 
not constitute a part of the breeding stock, are competent bodies 
authorised to verify, in examining compliance with the condition 
set in Article 54(2) of Commission Regulation (EC) No 865/2006, 
consisting of the establishment of stock legally and, at the same 
time, in a manner not detrimental to the survival of wild 
specimens, the origin of those parent specimens and to infer on 
that basis whether the breeding stock has been established in 
accordance with the rules set out in Article 54(2) of the 
Regulation? 
3. In examining compliance with the condition set out in Article 54(2) 
of Commission Regulation (EC) No 865/2006, consisting of the 
establishment of stock legally and, at the same time, in a manner 
not detrimental to the survival of wild specimens, can further 
circumstances of the case be taken into consideration (in 
particular, good faith in the transfer of the specimens and the 
legitimate expectation that trading in their potential offspring will 
be permitted, and potentially also the less stringent legislation 
applicable in the Czech Republic prior to the country’s accession 
to the European Union)? 
[…] 
[OR 2] G r o u n d s : 
I. Subject of the Proceedings  
[1] The Applicant is a parrot breeder. Within the course of his activities, he 
applied, on 21 January 2015, for an exemption from the prohibition on trading for 
five specimens of the hyacinth macaw (Anodorhynchus hyacinthius) bred by the 
Applicant and born in 2014. The administrative body did not grant his application, 
based on an opinion of a scientific authority. 
[2] In the course of the exemption proceedings, the administrative body and the 
scientific authority found the following information concerning the origin of the 
parrots subject to evaluation. Their grandparents were imported into the Czech 
Republic by FU in June 1993 in non-standard circumstances. They were imported 
by a national of Uruguay, together with other parrots, to Bratislava, from where 
that national travelled with FU by car to the Czech Republic. At the border, the 
car was unexpectedly stopped by customs authorities and the grandparent pair was 
subsequently confiscated from FU by an administrative decision. That 
administrative decision was, however, overturned by the Vrchní soud v Praze 
(High Court in Prague, Czech Republic) in 1996. The administrative body 
subsequently stopped the proceedings and returned the parrots to FU. FU then lent 
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the grandparent pair to GV, who bred the parental pair from them in 2000 – they 
are siblings from the same brood (after the chicks were bred, GV returned the 
grandparent pair to FU, who in turn handed them over to the Zlín Zoo). The 
Applicant obtained the parental pair from GV (the civil acquisition title is not 
specified in the administrative documentation, but the validity of the transfer of 
ownership has not been impugned in any way). 
[3] The scientific authority assessed the acquisition of the parrots by the 
Applicant in 2000 as the establishment of breeding stock and examined whether 
the establishment violated, in particular, Article 54(2) of Commission Regulation 
(EC) No 865/2006 laying down detailed rules concerning the implementation of 
Council Regulation (EC) No 338/97 on the protection of species of wild fauna and 
flora by regulating trade therein, pursuant to which breeding stock must be 
‘established in accordance with the legal provisions applicable to it at the time of 
acquisition and in a manner not detrimental to the survival of the species 
concerned in the wild’. In examining compliance with these conditions, the 
scientific authority concluded that it was not satisfied that the stock had been 
established in accordance with the legal provisions and, hence, it did not agree to 
the granting of an exemption. This was because there were many discrepancies in 
the registration documents of the grandparent specimens from 1998, in particular, 
the year of acquisition – 1996 – did not correspond to the code stated in the 
registration documents, because it was assigned only to specimens obtained prior 
to 1992, and furthermore, no information about the origin of the specimens was 
stated. In that respect, the scientific authority added that it had expressed its 
objection to the granting of an exemption on several other occasions for offspring 
of the same grandparent pair.  
[4] The decision of the administrative body was based on this opinion of the 
scientific authority and did not grant the exemption. The Applicant appealed that 
decision. In particular, he claimed an incorrect definition of breeding stock. 
According to him, breeding stock comprises only the parental pair and the 
offspring and, hence, the administrative authority should not have examined the 
origin of the grandparents at all. The appellate administrative authority (which is 
the Defendant pursuant to national legislation) refused that line of argument, 
considering the method of acquisition of the first reproducing pair to be key for 
evaluating the [manner of] establishment of the breeding stock. The Applicant has 
not proven the origin of that pair and, hence, it was impossible to grant the 
exemption.  
[5] The Applicant subsequently challenged the Defendant’s decision by an 
application submitted to the Regional Court in Hradec Králové. 
[6] The Regional Court set the application aside. First and foremost, it stated 
that trade in parrots of the genus Anodorhynchus is prohibited and may only be 
permitted subject to exceptional circumstances. The conditions for granting such 
exemptions are set out in Article 54 of Commission Regulation (EC) 
No 865/2006. All the conditions must be [OR 3] met at the same time and the 
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administrative body must be satisfied that they have been met by the Applicant, 
i.e., the facts of the case and the legal aspects must all be entirely certain. In the 
present case, the subject of the dispute was compliance with the condition set out 
in Article 54(2) of the Regulation, pursuant to which the Applicant must prove 
that: (1) the breeding stock was established in accordance with the legal 
provisions applicable to it at the time of acquisition; and (2) that it was established 
in a manner not detrimental to the survival of the species concerned in the wild. 
According to the Court, the Applicant did not meet either of the two sub-
conditions, as the grandparent pair was – according to extensive findings of the 
administrative body – imported into the Czech Republic in June 1993, in wholly 
non-standard circumstances. At that time, the CITES Convention was already in 
force in the Czech Republic (the Czechoslovak Federal Republic acceded to it on 
18 May 1992), and it had been implemented nationally since 1 June 1992 by 
Zákon č. 114/1992 Sb., o ochraně přírody a krajiny (Law No 114/1992 on the 
protection of nature and landscape) (from 1 April 1997 by Zákon č. 16/1997 Sb., o 
podmínkách dovozu a vývozu ohrožených druhů (Law No 16/1997 on the 
conditions for the import and export of endangered species)). According to the 
legislation implementing the CITES Convention, an examination of the origin of 
the breeding stock is permissible back to the grandparent pair. The breeding stock 
as defined by Commission Regulation (EC) 865/2006 consists of all three 
generations, because they are animals in a breeding operation in the Czech 
Republic that are used for reproduction.  
[7] The Applicant lodged an appeal on a point of law against the decision of the 
Regional Court before the Supreme Administrative Court. He deemed incorrect 
the legal opinion of the Regional Court that breeding stock is comprised of the 
specimens concerned, their parents and their grandparents, because they are 
animals in a breeding operation in the Czech Republic that are used for 
reproduction. From that the court inferred that administrative bodies are 
authorised to seek a document of origin of the grandparent pair. According to the 
Applicant, this interpretation places an undue evidential burden on him. Above all, 
it is incorrect, because, according to the Regulation quoted, breeding stock 
includes all animals located in the Applicant’s operation who are used for 
reproduction (and not their ancestors kept in other operations or by other breeders, 
such as the grandparents). The Applicant inferred that conclusion from 
Article 1(3) of Commission Regulation (EC) No 865/2006, according to which 
‘breeding stock’ means all the animals in a breeding operation that are used for 
reproduction. According to the Applicant, a breeding operation referred to in that 
definition may mean any breeding operation in the Czech Republic, but always 
only one specific operation. He himself acquired the parental pair legally, and 
hence, an undue intervention in his right to property and in his legitimate 
expectations has taken place. 
[8] In its response to the appeal on a point of law, the Defendant refuted the 
Applicant’s conclusions as to the interpretation of breeding stock. It pointed to the 
wording of Article 54(2) of Commission Regulation (EC) No 865/2006, which 
uses the term ‘establishment’ of breeding stock, in accordance with the legal 
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provisions applicable at the time concerned. The term ‘establishment’ clearly 
refers to the past and clearly points to the beginning of a breeding line. Because it 
was highly likely that the grandparents of the parrots under examination were 
obtained illegally, the administrative body, in consultation with the scientific 
authority, could not be satisfied that the manner in which the breeding stock was 
established had been legal. Furthermore, the Defendant stated that the definition 
of stock is secondary; the manner of establishment of the stock is key. 
[9] With respect to the burden of proof, the Defendant further pointed to the 
general prohibition on trade with these animals, due to which any exemptions 
must be interpreted restrictively. An owner need not obtain documents concerning 
the origin of grandparents for breeding; this obligation arises only once he intends 
to trade in a subsequent generation. The opinion of a scientific authority is key for 
the granting of an exemption and, according to established practice, the authority 
examines the origin of the grandparents, as is standard practice in the EU. The 
different approach advanced by the Applicant would result in an easy legalisation 
of stock based on specimens obtained from the wild. They could easily give rise to 
the production of animals whose further generations automatically could be 
traded. So far as concerns the purpose of the CITES Convention, the Defendant 
did recognise a certain benefit of legal breeding (as it reduces pressure on the 
capture of specimens in the wild); nevertheless, such stocks must be legally 
established. As for the right to property, the Defendant noted that that is not the 
primary concern and it did not question the conclusion concerning the legal 
ownership of the grandparents of the parrots currently being evaluated or those 
parrots themselves. The Applicant’s right to property remains unprejudiced; it is 
only restricted by certain conditions.  
[OR 4] II. Applicable European Union Legislation and National 
Legislation  
[10] The fundamental principles of environmental protection in the EU are set 
out in primary legislation. Pursuant to Article 191(2) of the Treaty on the 
Functioning of the European Union, EU policy on the environment shall ‘aim at a 
high level of protection taking into account the diversity of situations in the 
various regions of the Union. It shall be based on the precautionary principle 
and on the principles that preventive action should be taken, that 
environmental damage should as a priority be rectified at source and that the 
polluter should pay’. 
[11] Nevertheless, EU legislation adopts the rules for trade in endangered species 
from the CITES Convention. The basic rules of the CITES Convention are 
transposed by Council Regulation (EC) No 338/97 (‘Regulation on the 
protection of wild species’). Pursuant to Article 8(1) of the Regulation, trade in 
the animals listed in Annex A is prohibited (pursuant to Article 3(1) of the 
Regulation, Annex A corresponds to Annex I to the CITES Convention). Parrots 
of the genus Anodorhynchus are such animals. 
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[12] This prohibition is, however, not absolute and an exemption may be granted 
on the basis of one of the grounds listed in Article 8(3) of the Regulation on the 
protection of wild species. The exemption listed under (d) of that provision is key 
to the questions submitted:  
‘3. In accordance with the requirements of other Community legislation on the 
conservation of wild fauna and flora, exemption from the prohibitions referred to 
in paragraph 1 may be granted by issuance of a certificate to that effect by a 
management authority of the Member State in which the specimens are located, 
on a case-by-case basis where the specimens: 
(…) 
(d) are captive-born and bred specimens of an animal species or artificially 
propagated specimens of a plant species or are parts or derivatives of such 
specimens (…)’ 
[13] Detailed conditions for granting such exemptions are set in Commission 
Regulation (EC) No 865/2006 laying down detailed rules concerning the 
implementation of Council Regulation (EC) No 338/97 (‘Implementing 
Regulation’). The granting of an exemption under Article 8(3) of the Regulation 
on the protection of wild species is specified in Article 59(2) of the Implementing 
Regulation:  
‘2. The exemption for specimens referred to in Article 8(3)(d) of Regulation (EC) 
No 338/97 shall be granted only if the applicant has satisfied the competent 
management authority, the latter having consulted a competent scientific 
authority, that the conditions referred to in Article 48 of this Regulation are met 
and that the specimens concerned were born and bred in captivity or artificially 
propagated in accordance with Articles 54, 55 and 56 of this Regulation.’ 
[14] In connection with that provision, Article 54 of the Implementing 
Regulation especially is of further relevance in the present case (Article 48 sets 
out only general provisions concerning exemption certificates, Article 55 gives 
authorities the right to examine the origin of specimens by tissue testing, and 
Article 56 pertains to plants), in particular Article 54(2), in respect of which 
Czech administrative authorities were not, in their opinion, satisfied that the 
conditions they had set had been met: 
‘Article 54 
Specimens born and bred in captivity of animal species  
Without prejudice to Article 55, a specimen of an animal species shall be 
considered to be born and bred in captivity only if a competent management 
authority, in consultation with a competent scientific authority of the Member 
State concerned, is satisfied that the following criteria are met: 
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1. the specimen is, or is derived from, offspring born or otherwise produced in a 
controlled environment of either of the following:  
(a) parents that mated or had gametes otherwise transferred in a controlled 
environment, if reproduction is sexual;  
(b) parents that were in a controlled environment when development of the 
offspring began, if reproduction is asexual; 
[OR 5] 2. the breeding stock was established in accordance with the legal 
provisions applicable to it at the time of acquisition and in a manner not 
detrimental to the survival of the species concerned in the wild; 
3. the breeding stock is maintained without the introduction of specimens from 
the wild, except for the occasional addition, in accordance with the legal 
provisions applicable and in a manner not detrimental to the survival of the 
species concerned in the wild, of animals, eggs or gametes exclusively for one or 
more of the following purposes:  
(a) to prevent or alleviate deleterious inbreeding, the magnitude of such addition 
being determined by the need for new genetic material;  
(b) to dispose of confiscated animals in accordance with Article 16(3) of 
Regulation (EC) No 338/97;  
(c) |exceptionally, for use as breeding stock; 
4. the breeding stock has itself produced second or subsequent generation 
offspring (F2, F3 and so on) in a controlled environment, or is managed in a 
manner that has been demonstrated to be capable of reliably producing second-
generation offspring in a controlled environment.’ 
[15] A definition of breeding stock is set out in Article 1(3) of the Implementing 
Regulation: ‘“breeding stock” means all the animals in a breeding operation that 
are used for reproduction’. 
[16] National legislation applies to the case only to a limited degree and primarily 
it determines the administrative bodies that implement the EU law described 
above. The bodies are determined by Zákon č. 100/2004 Sb., o obchodování s 
ohroženými druhy (Law No 100/2004 on trade in endangered species). Pursuant to 
Paragraph 3(3) of the Law, the role of the administrative body shall, for the 
purpose of the granting of an exemption from the prohibition on trade activities, 
be performed by the regional authority. Pursuant to Paragraph 27 of the Law, the 
role of the scientific authority as defined by the Regulations referred to above and 
the CITES Convention shall be performed in the Czech Republic by the Agentura 
ochrany přírody a krajiny ČR (the Nature Conservation Agency of the Czech 
Republic), an organisational unit of the state established by the Ministerstvo 
životního prostředí (the Ministry of the Environment). Hence, the regional 
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authority fulfilled the role of an administrative body described in the previous part 
and, on the basis of an opinion of the Nature Conservation Agency of the Czech 
Republic, it rendered a first degree administrative decision. Pursuant to general 
rules of Czech administrative procedure, such a decision may be appealed by an 
appeal lodged with the Ministry of the Environment, which acted as the appellate 
administrative body and represented the administrative bodies before the 
administrative courts.  
III. Analysis of the questions submitted for a preliminary ruling  
[17] In deliberating on the appeal on a point of law, the Supreme Administrative 
Court found that the case primarily concerns interpretation of EU law, that no 
Court of Justice case-law exists on the issue, and it is not an issue that could be 
clearly resolved by a contextual interpretation of EU law without leaving any 
scope for reasonable doubt in respect of the interpretation (compare judgment of 
the Court of Justice of 6 October 1982, [CILFIT], C-283/81, EU:C:1982:335). 
Hence, the Supreme Administrative Court is obliged to submit a question to the 
Court of Justice for a preliminary ruling, in accordance with Article 267 of the 
Treaty on the Functioning of the European Union.  
[18] At the outset, the Supreme Administrative Court noted that there was no 
dispute between the parties as to the problematic origin of the grandparent 
generation or to the birth of the parental pair in 2000 in captivity in the Czech 
Republic and its legal transfer to the Applicant. In the Defendant’s view, however, 
the problematic origin of the grandparent pair ‘burdens’ any future generations, 
whereas according to the Applicant, the ‘spell’ was broken with the transfer to his 
own stock. On the other hand, the Applicant does not challenge the legal 
evaluation according to which the grandparent pair is subject to the CITES 
Convention and related legislation, or the adverse conclusions arising from the 
application of those regulations to the grandparent pair. The Applicant does, 
however, take the view that those conclusions cannot be related to his specimens, 
for two main reasons: the first is the interpretation of the term breeding stock, 
which according to him includes only his specimens, and hence, administrative 
bodies should not have considered the origins of the grandparent pair at all. The 
second reason is his legitimate expectations. He acquired the specimens in a due 
manner [OR 6] and he himself had no doubts as to the origin of the grandparent 
pair at the time he acquired the parrots, as they had been returned to their then-
owner on the basis of a court decision.  
[19] The interpretation of the term breeding stock led the Supreme 
Administrative Court to raise the first part of the issue referred for a preliminary 
ruling. The Applicant argues using a linguistic interpretation of Article 1(3) of the 
Implementing Regulation, according to which it consists of all the animals in a 
breeding operation that are used for reproduction. Conversely, the Defendant 
points to the general prohibition on trade in the parrots and on the adverse impact 
in the form of easy legalisation of stocks based on questionably imported 
specimens (all that would be required is ‘breaking’ the line by transferring the 
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offspring). The Supreme Administrative Court considers the definition of breeding 
stock to be relatively clear and, as regards this step, it tended more towards the 
Applicant’s interpretation. On the other hand, that court does not attribute an 
excessive value to the significance of the issue of the definition of breeding stock 
(more on that below in the analysis of the other questions referred). It is, however, 
necessary to draw attention to the structure of the individual questions referred. If 
the Court of Justice accepted a broader definition of breeding stock, including in it 
the grandparent pair of ‘dubious’ origin, the second question becomes 
meaningless. On the other hand, that answer would not reduce the importance of 
the third question. […] 
[20] Conversely, if the Court of Justice accepted the narrower variant of the 
interpretation of breeding stock, not including in it the grandparent pair, it would 
be necessary to answer the second question referred. The administrative bodies 
refused to grant an exemption to the Applicant on the basis of an opinion of a 
scientific authority with reference to Article 54(2) of the Implementing 
Regulation, according to which the ‘establishment’ of breeding stock is examined. 
The Applicant links the establishment to the obtaining of a specimen from the 
parental generation which took place in accordance with the requirements set out 
in Article 54(2) of the Implementing Regulation (legally and in a manner not 
detrimental to the survival of the species concerned in the wild). The Defendant 
does not question that the Applicant obtained the parental pair in a due manner. 
But, in its opinion, the term ‘establishment’ must be interpreted as the beginning 
of the breeding line.  
[21] The Supreme Administrative Court found two possible interpretations. First, 
the term ‘establishment’ of breeding stock may be interpreted with a view to the 
fact that it evokes an examination of the line of ancestry of the parrots under 
examination. This interpretation could potentially stand even in a more complex 
interpretation, as it prevents easy legalisation of ‘questionable’ stocks, for 
example, by means of (a potentially bogus) transfer. That would be the case in a 
situation when a breeder transfers specimens to another person who would breed 
subsequent generations (actually, or would only act as a ‘front’ owner), thereby 
breaking the ‘spell’ of their origin. On the other hand, present legislation may be 
used to counter this interpretation. Currently, it is impossible to duly acquire 
specimens of the animals listed in Annex A to the Regulation on the protection of 
wild species in the European Union without obtaining an exemption. A ‘bogus’ 
transfer is therefore not possible in the EU, because it would not obtain a decision 
on an exemption. Hence, an examination of the beginning of a breeding line is of 
no practical significance in the EU, and from the systematic viewpoint, the 
interpretation linking ‘establishment’ to a specific stock can be consented to more 
easily. This approach would result in the unquestionable advantage of addressing 
atypical situations such as that which arose in the present case. The Applicant 
legally acquired parrots prior to the Czech Republic’s accession to the EU when 
no exemption was required for a national transfer, thereby gaining a legitimate 
expectation which the contrary interpretation would disrupt. Furthermore, if the 
first interpretative option were to apply, it would be necessary also to examine 
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how far into the past the acquisition of stock should be examined, which may 
place unrealistic requirements on owners of protected animals. After all, the 
present case concerns a situation when the probably illegal obtaining of the 
grandparent pair occurred more than 20 years prior to the birth of the specimens 
currently examined, and subsequently, both the grandparent and the parent pairs 
were kept legally.  
[22] The third part of the issue referred  presents the dilemma whether individual 
circumstances may be considered and, if so, of what type. It is undisputed between 
the Applicant and the administrative bodies that the present case did not concern a 
‘bogus’ transfer and that the acquisition of the parental pair in 2000 was legal. It 
must be noted in this context that the CITES Convention did apply in the Czech 
Republic at that time [OR 7] and that it was implemented by Law No 16/1997 on 
the conditions for the import and export of endangered species, but that law did 
not require issuance of certificates pursuant to the CITES convention in the event 
of a national transfer. In that case, ‘only’ an official inspection of the specimens 
and their registration took place. That national legislation was in line with the 
CITES Convention which focuses primarily on regulating international trade. 
Nevertheless, Article XIV of the CITES Convention does permit the parties to 
adopt stricter regulation, which is the case of stricter EU regulation that requires 
the issuance of a certificate even for a transfer within the EU and within an 
individual Member State. However that regulation has been in force in the Czech 
Republic since its EU accession, on 1 May 2004, while the transfer of the parental 
pair took place in 2000. 
[23] The Applicant therefore could have had the legitimate expectation since 
2000 that he would be able to trade in any offspring at least within the Czech 
Republic, but probably also internationally (the approach of the authorities at that 
time gave rise to no uncertainty as to the potential granting of an exemption under 
the CITES Convention in respect of the offspring). The return of the grandparent 
pair to its then-holder in 1996 on the basis of a decision of an administrative court 
also plays an important role. Furthermore, the Applicant points out that his 
breeding of the parrots has a positive environmental impact. He is of the opinion 
that the sale of specimens bred by him in captivity would reduce market demand 
for illegal purchases of specimens captured in the wild. Conversely, the Defendant 
draws attention to the general prohibition on trade in animals of the said genus, 
embodied in Article 8(1) of the Regulation on the protection of wild species, and 
hence the need to interpret the exemptions restrictively.  
[24] If an exemption is not granted, protection of the right to property under 
Article 17 of the Charter of Fundamental Rights of the EU must also be taken into 
consideration. Essentially, of the entire contents of the right to property, the 
Applicant is left only with the right to possess the parrots. He may also hold their 
offspring, but he cannot dispose of them legally. Ultimately, there is no dispute 
between the Applicant and the administrative bodies as to these strict legal 
consequences of the non-granting of the exemption. With a view to the special 
circumstances described above, however, the Applicant considers them unduly 
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strict and, in his view, these circumstances should be considered in combination 
with a reduction of demand for parrots from the wild that the ‘placement on the 
market’ of his parrots would cause. Conversely, the Defendant considers the strict 
impact of the regulation on the Applicant to constitute the due functioning of the 
applicable legislation.  
[…]