COMMISSION NOTICE

Guidance document on live animals bred in captivity under the EU Wildlife Trade Regulations

(2022/C 306/02)

Table of Contents

1. Introduction 3

2. Document status 4

3. Verifying legal acquisition – general considerations 4

3.1. Legal origin of captive-bred specimens 4

3.2. Establishing the breeding stock 5

3.3. Source codes 6

3.3.1. Adding specimens from the wild 6

3.3.2. Production of second-generation offspring 7

3.4. Purpose codes 8

3.5. Nomenclature issues 9

4. Introduction into the EU 9

4.1. Role of the management authority in assessing import permits for captive-bred specimens 10

4.2. Role of the scientific authority in assessing import permits for captive-bred specimens 10

5. Internal EU trade 11

5.1. Role of the management and scientific authority in assessing applications for internal EU trade in captive-bred Annex A specimens 11

5.2. Role of the management and scientific authority in internal EU trade in captive-bred Annex B specimens 13

6. Exports and re-exports from the EU 13

6.1. Re-exports of captive-bred specimens 13

6.2. Exports of captive-bred specimens 13

6.2.1. Role of the management authority in assessing export permits for captive-bred specimens 13

6.2.2. Role of the scientific authority in assessing export permits for captive-bred specimens 14

7. Confiscated animals 15

Annex 1 Aspects to be considered when assessing risks linked to trade in captive-bred specimens 17

Annex 2 Information requested from the exporting country 18

Annex 3 Flow chart for assessing source codes 19

1. Introduction

This guidance is intended to help EU Member States and stakeholders implement the EU Wildlife Trade Regulations (1) in relation to live animal specimens born and bred in captivity, in cases where they are brought into the EU, (re-)exported from the EU, or traded internally within the bloc.

In particular, the objective of the guidance is to help EU Member States assess whether captive-bred specimens (2) of species listed in the Annexes to the Basic Regulation meet the conditions for issuing the documents required for importing, (re-)exporting or internal trade.

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) lists endangered species. Over the years, the proportion of reported trade in specimens of these species which are taken from the wild has declined, while the proportion of species bred by various types of production systems, including captive breeding, has increased (3).

Specimens which are not sourced from the wild are often considered to have no direct negative impact on wild populations, or to even provide conservation benefits – by reducing the demand for wild specimens, by generating life-history information that can be used in conservation, by helping develop techniques that can be used in breeding with conservation benefits, or by establishing a captive ‘assurance population’, i.e. species taken into captivity as a precaution against extinctions in the wild. The rules governing trade in those specimens are therefore more permissive than those applied to wild-sourced specimens.

However, these derogations have also been abused, and wild-sourced specimens have been traded by fraudulently claiming a captive-bred source. Captive breeding can have a considerable negative impact on the conservation of natural populations in cases where founder-breeding stocks have been acquired or are being supplemented in an unsustainable way.

In some cases, captive-breeding operations have used specimens acquired illegally. There have also been cases where breeding claims were not genuine and wild specimens were ‘laundered’ as captive-bred. Therefore, the potential impact of alleged captive-breeding operations on wild populations needs to be considered, and a uniform approach across EU Member States is needed to ensure no trade occurs when there are reasonable doubts regarding the authenticity of captive-breeding claims, and to protect genuine captive-breeding operations against unfair competition.

Guidance is required to ensure that EU Member States are consistent in their approach to implementing the rules and that they apply equivalent standards with regards to live animals bred in captivity. Consistency across EU Member States can be achieved by setting out guidance on the interpretation of relevant Articles in the Basic Regulation with regard to animals bred in captivity, as well as on the interpretation of relevant Articles in the Implementing Regulation.

EU Member States are invited to use the guidance provided below on a case-by-case basis and in a way that is proportionate to each situation.

2. Document status

This guidance document was prepared by the European Commission and a draft was endorsed by the Committee on Trade in Wild Fauna and Flora established under Article 18 of the Basic Regulation, and therefore by the competent authorities in the EU Member States.

The document is intended to help national authorities apply the EU Wildlife Trade Regulations.

It is not legally binding; its sole purpose is to provide information on certain aspects of the Basic Regulation, the Implementing Regulations and measures considered to be best practice.

It does not replace, add to, or amend any of the applicable EU law on this issue, which remain the legal basis that must be applied.

The document should also not be considered in isolation; it must be used in conjunction with the legislation, and not as a ‘stand-alone’ reference. Only the Court of Justice of the European Union is competent to interpret EU law authoritatively.

The Commission is publishing this guidance online and EU Member States may also publish it. It will be reviewed by the Commission and the Committee on Trade in Wild Fauna and Flora in due course.

Some EU Member States and other non-EU countries may apply stricter national controls on trade in live captive-bred specimens. Applicants for CITES documents should therefore also check the rules in place in the country of destination or origin before moving live captive- bred specimens.

3. Verifying legal acquisition – general considerations

This section first provides guidance on the aspects to be considered when assessing a captive-breeding claim for a particular specimen (section 3.1) as well as the founder stock (section 3.2), while subsequent sections look into source codes (section 3.3) and purpose codes (section 3.4) and their relation to captive breeding, and a final section (3.5) provides guidance on how to deal with nomenclature changes.

3.1. Legal origin of captive-bred specimens

When assessing whether a captive-bred specimen of a species listed in Annex A or B has been acquired legally, one should consider the following general points:

— Risk assessment – management authorities should pay particular attention to cases where increased risks can be identified in line with Annex 1 to this document. The factors listed in the Annex are indicative and should be adapted to the assessment of each case.

— Chain of custody – as far as it is practicable, the transactions pertaining to the parental stock of the specimen bred in captivity, the captive-bred specimen itself, and the subsequent ownership of that specimen should all be chronologically documented.

— Due diligence – management authorities are encouraged to consult relevant governmental and intergovernmental bodies to check whether the specimens have been legally acquired, with respect to the obligations under CITES and the fulfilment of due-diligence requirements. These groups include inter alia the management authorities of other CITES Parties, the CITES Animals Committee, the CITES Secretariat and International Union for Conservation of Nature (IUCN) Species Survival Commission Specialist groups. Special attention should be paid to cases involving highly threatened species (4) where, unless there is satisfactory documentary evidence provided, the range state(s) should be contacted to verify if the species was ever legally exported. If contacts with the range state authorities are unsuccessful, management authorities can also choose to contact the applicant directly.

— Burden of proof – for internal EU trade and (re-)export, management authorities should require the applicant to produce documentary evidence of legal acquisition. In many cases, proof of legal acquisition will be in the form of an EU certificate (Annex A) or a document conforming to the Guidance on proof of legal acquisition for live animals of Annex B species (5). In the absence of these documents, other types of documents or evidence can be considered: In cases where documentary evidence of legal acquisition is no longer in the possession of the operators and can also not be obtained by the management authorities, legal-acquisition can be ascertained based on other factors. This applies to long-standing breeding operations which were either established before the species was listed on CITES or were established several decades ago (depending on the reproductive cycle of a species). In such cases, the management authority may consider confirming legal acquisition of a specimen where it can be proven that: — Before the breeding stock for the breeding operation was established, a number of legal imports into the EU had occurred (i.e. the species was in legal trade), and — Breeding of the species is generally possible, with a yield corresponding to the operator’s claim, and was also already possible at the time the breeding operation was established, and — The breeder has been successfully breeding specimens since the breeding stock was established, or can demonstrate that at least two (2) generations have been bred in their establishment.

A specimen of a species listed in Annex A or B can be legally introduced into the EU by virtue of an import permit issued by the Member State of destination. This specimen, or offspring of such specimens, can subsequently be moved to another Member State.

For specimens of a species listed in Annex A, such internal trade must be covered by an intra-EU certificate.

For specimens of a species listed in Annex B, the import permit will remain an important part of the chain of custody, alongside other types of documentation such as an invoice or proof of legal acquisition. If such a specimen, or its offspring, is located in another Member State and that Member State obtains information that places the legal origin in serious doubt, the Member States involved in the transaction should consult one another (6).

If there is credible evidence that a document was issued on the false premise that the conditions for its issuance were met, the management authority in the issuing Member State is strongly encouraged to declare that document formally invalid.

If the Member States in question do not reach an agreement and there remains doubt about the validity of a document issued by another Member State, the Member State faced with an application based on the document that has been called into question can decide not to issue a new document (intra-EU certificate or re-export certificate).

It can also be decided to issue an EU certificate, which limits trade and only authorises it inside the EU. Specific restrictions can be put on the relevant EU certificate to make it clear that it does not authorise the (re-)export of the specimen. All Member States are encouraged to respect conditions included in an EU certificate or import permit by another Member State and to copy these restrictions into any new document issued on the basis of the certificate or permit.

3.2. Establishing the breeding stock

According to Article 54 of the Implementing Regulation, a specimen can only be considered as ‘captive-bred’ if the breeding stock is 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 that species in the wild.

For a recently established breeding stock, this can be demonstrated by documentary evidence in the form of import permits, intra-EU certificates or documentation compliant with the Guidance on proof of legal acquisition of live animals of Annex B species (above, footnote 5).

If a breeding stock was established before the species was listed under CITES or the EU Wildlife Trade Regulations, and credible evidence is provided to this effect, commercial breeding may be allowed (both for export and intra-EU trade).

If the breeding stock was imported, the focus should be on proof that the specimens were legally imported according to CITES and EU legislation, including any stricter domestic measures taken by the Member States.

The number of generations successfully bred in captivity inside the EU can be part of the proof of legal breeding. However, if the founder stocks are large, this can be an indication of the potential negative impact the illegal offtake may have had on the conservation of the species.

3.3. Source codes

Annex 3 provides a flow chart to summarise how different source codes are to be used for animals maintained in captivity at some point, based on the provisions of the EU Wildlife Trade Regulations and taking into account CITES CoP Resolutions and definitions when interpreting these Regulations. This can help authorities check whether the right code is used in any given application, and in particular, whether source code C is correctly applied.

When considering applications for specimens born in captivity, the management authority, in consultation with the scientific authority, evaluates whether the source codes have been applied correctly under Article 54(3) and (4) of the Implementing Regulation.

In particular, to accept the source code C designating captive-bred specimens, it needs to be considered whether the breeding stock is:

a) maintained without regular introduction of specimens from the wild, and

b) managed in a manner that is capable of producing second-generation offspring.

This evaluation needs to be done case by case, depending on the species and the breeder involved. For example, source code C can be attributed more easily for a species that is already known to have been bred in captivity for many generations in the EU, than for a species for which second-generation offspring has not yet been produced or is very rare. In that case, source code F is more likely to be applicable.

The following two sub-sections provide more detail on both abovementioned conditions.

3.3.1. Adding specimens from the wild

When facilities are breeding specimens in controlled conditions, Member States authorities need to consider whether the breeding stock has been regularly augmented with wild-taken individuals.

If wild-taken specimens are added only very occasionally, and in accordance with the requirements of Article 54(3) of the Implementing Regulation, source code C may be applied to the offspring from this facility (assuming that all other requirements of Article 54 are met).

Whether or not it is necessary to add wild specimens to a breeding stock can be scientifically determined by genetic profiling. How frequent an augmentation can still be considered ‘occasional’ may be dependent on the generation length of the species, and is in any case species-specific. Over time, again depending on the generation length, the newly-added wild specimens should not comprise a large proportion of the breeding stock, as it would not be sustainable to maintain a breeding stock coming from the wild.

When importing wild specimens of species listed in Annex A for breeding purposes, the following factors should be considered:

— Whether a captive-breeding project is needed for conservation purposes, taking account of similar activities elsewhere in the world and of in situ conservation efforts or the lack thereof,

— The existence of captive-bred specimens elsewhere in the world which could be used in place of wild-taken ones,

— The views of the exporting countries’ scientific authority,

— The views of the relevant international, national or regional studbook keeper or the European Association of Zoos and Aquaria (EAZA) ex-situ programme coordinator, (7) where they exist,

— The views of the relevant IUCN Species Survival Specialists Group or other experts, where they exist,

— The presentation of the case for breeding in terms of identified objectives, planning and research, in advance of importation,

— The output of the breeding project in terms of cooperation with others in the field and published material on breeding, husbandry, and biology,

— The applicant’s track record of captive breeding generally and with the species in question in particular, and the project’s long-term viability,

— Official/institutional support for the project,

— Photographic evidence of the breeding facility, where possible, to back up the essential written information, and

— In situ population benefits derived from the removal of specimens from the wild in the range state.

These factors are not presented in any particular order, and the degree to which any one of them will need to be considered will vary from case to case.

3.3.2. Production of second-generation offspring

To judge whether breeding is ‘managed in a manner that has been demonstrated to be capable of reliably producing second-generation offspring in a controlled environment’ (Article 54(4) Implementing Regulation), a substantial amount of information is required about the breeding methods and the individual species concerned.

Under certain conditions, specimens of the first generation can also be traded under source code C, provided that the breeding operation is being managed in a manner that is capable of producing second-generation offspring. Each such case should be assessed on its own merits, taking into account a number of factors, such as:

— housing conditions,

— feeding requirements,

— adequate breeding conditions,

— complexity of the breeding cycle,

— the number of individuals in the breeding stock,

— access to unrelated first-generation specimens,

— genetic management (keeping a studbook up-to-date, also considering subspecies),

— previous proven breeding success by the individual breeder or by the breeding community in general,

— feasibility of the alleged number of individuals reported produced on an annual basis

— sex ratio,

— age at sexual maturity and survivability,

— species rarity in captivity.

An assessment against Article 54(4) of the Implementing Regulation therefore needs to include the details of how the current breeding group is managed and the potential for breeding the species to the second generation (F2) and beyond.

It is possible that a breeder may not have previously demonstrated that they have bred the species in question to second generation, but they have established all the conditions which will allow them to do so.

For very rare species, or species difficult to breed, this can be demonstrated, for example, through the breeder’s membership in a coordinated breeding program such as an EAZA Ex-situ Programme (EEP – previously known as European Endangered Species Programme) which has already successfully bred the specimen in captivity.

The success of the breeding program as a whole should be taken into consideration together with the extent to which the individual breeder has created similar conditions for breeding, taking into account the knowledge and assistance of other breeders.

The assessment for an individual species or breeder can also change over time, depending on breeding stock management practices.

3.4. Purpose codes

The purposes for which introduction of specimens can be allowed depends on the origin of the species (captive-bred versus wild-caught) and on the protection status of the species (Annex A versus Annex B).

Purpose codes are mentioned on all import permits, indicating the intended reason for the import. When the breeding stock is comprised of Annex A specimens or of Annex B specimens of species that are rare, or very rarely bred in captivity, or covered by a zero quota for commercial trade in wild specimens that have been imported for reasons other than commercial purposes, more caution has to be applied when considering whether to allow the offspring of this specimens to be commercialised.

Based on the relevant purpose code, limitations apply as to what can be done with the specimen in question and with its offspring. This section provides guidance on how to interpret the different purpose codes applied to specimens that were imported and are now part of a breeding stock:

— Purpose code S (scientific) or M (medical, including bio-medical research): Specimens are intended for the advancement of science or for essential biomedical purposes for which the species proves to be the only one suitable.

— Purpose code B (breeding in captivity): Specimens are intended for non-commercial breeding programmes that will generate conservation benefits for the species in question. Purpose code B should not be accepted for specimens whose offspring are intended for commercial trade – it should instead be reserved for conservation breeding. The non-commercial nature of a transaction can be verified on the basis of the following information, bearing in mind that individual projects differ and some flexibility is necessary: — Clear outline of the conservation benefit for the wild population of the species (e.g. support for the wild population; re-introduction to the wild etc.), — Clear plan and timeframe for the project (e.g. who is re-introducing the specimen, at which point in time; if no immediate re-introduction is planned, what happens (if the project is more successful than expected) with excess specimens, etc.), — Existence and management of a studbook, to keep genetic variability, — Veterinary support for the project, to prevent disease spreading to wild populations, — Support in the country of origin or re-introduction for the project, — No commercial use of the specimen and their offspring.

— Purpose code Z (Zoos): Specimens are intended for zoos and may be moved only among zoos.

— Purpose code E (Educational): For education purposes aimed at conservation of the species. This conservation benefit should be documented by an education concept.

— Purpose code P (Personal): Specimens are intended for personal use, for example as private pets.

If the transaction does not clearly fall under one of the above-mentioned non-commercial purpose codes, purpose code T must be used and the specimen in question has to fulfil all criteria for commercial trade to be allowed.

The management authority, after the necessary consultations, may also restrict the commercial use of the specimen or their offspring to the EU-internal market only. This could be ensured through conditions set out in the import permit and subsequently on the EU certificate.

When a specimen can no longer be used for the intent with which it was imported, and when there is a request to use it for commercial purposes, the management authority, in consultation with the scientific authority, should evaluate whether the specimen could have been imported for commercial purposes.

For example, an animal imported for a research project or a breeding programme may be used in an existing breeding stock, or be commercialised itself, provided it is clear that the purpose of the original import was genuine, and it was not used as a cover to import animals with commercial intent. Consultation with the country of export may be necessary for this evaluation.

When it is clear that it was not permitted to import the specimen for commercial purposes, trade in the specimen or breeding for sale of the offspring should generally not be permitted. Commercial use of any derivatives should equally not be permitted.

3.5. Nomenclature issues

Special attention should be given to recently discovered species, species that have undergone recent taxonomic changes as well as species for which the accepted CITES nomenclatural reference does not align with more recent, generally accepted scientific literature.

This can significantly complicate the chain of custody; consultation between the management authority and scientific authority is advised when verifying legal origin in such cases.

4. Introduction into the EU

A specimen of an animal species can only be considered captive-bred when a competent management authority in consultation with a competent scientific authority of the Member State concerned is satisfied that the criteria in Article 54 of the Implementing Regulation are met. The import conditions referred to in Article 4 of the Basic Regulation apply also to captive-bred specimens referred to in Article 7(1) of the same Regulation. Therefore, scientific authorities should be involved in assessing applications for importing captive-bred specimens. In particular they need to ensure that any specimens of wild origin used for captive breeding (parental stock, and any specimens added exceptionally to the breeding stock) comply with the requirements of Articles 4(2)(a) and 4(1)(e) linked to 4(2)(c).

This mainly means that the management authority, after consultation with the scientific authority, determines that the introduction into the EU does not have a harmful effect on the conservation status of the species, that the specimen was obtained legally, and that there are no other factors militating against issuing the import permit.

Scientific authorities also need to make sure that the production method for the imported specimens does not have a harmful effect on the conservation status of the species or on the extent of the territory occupied by the relevant wild population of the species.

Unrealistic (8) captive-breeding claims can lead to the refusal of an import permit under Article 4(1)(e) of the Basic Regulation and Article 7(6) of the Implementing Regulation. Discrepancies in the details of alleged captive breeding should lead to further analysis of the application and to contact with the exporting country, after which a final decision has to be made case by case.

Imports of captive-bred specimens from non-range states should generally not be allowed where specimens of the species have never been exported from the range State with a valid CITES permit or certificate. Though it must be taken into account that the specimens might have been transported to the non-range state before being listed under CITES.

4.1. Role of the management authority in assessing import permits for captive-bred specimens

The management authority examines whether the specimen was obtained in accordance with the legislation on protecting the species concerned. In consultation with the competent scientific authority of the Member State and after considering any opinion by the Scientific Review Group, the management authority examines whether the specimens to be imported can be considered as captive-bred, in line with Article 54 of the Implementing Regulation.

The management authority pays specific attention to import applications where increased risks have been identified in line with Annex 1 to Guidance. The factors listed in the Annex are indicative and are no substitute for assessing each case in proper detail. The assessment may reveal that the captive-breeding claim is valid and robust despite the presence of one or more risks.

To establish whether specimens meet the criteria in paragraphs (1) to (4) of Article 54 of the Implementing Regulation, information from the non-EU country involved may need to be obtained, in line with Article 7(6) of the Implementing Regulation.

Import permits should not be issued by Member States in cases where, despite a request to do so, they do not obtain satisfactory information from the exporter or the exporting or re-exporting country that the specimens to be imported into the EU qualify as captive-bred.

4.2. Role of the scientific authority in assessing import permits for captive-bred specimens

The scientific authority in the Member State of import provides an opinion on whether the criteria in Article 54 of the Implementing Regulation and the import conditions in Article 4 (1) and (2) of the Basic Regulation are met.

This opinion is based on a scientific assessment of available information, taking into account any risks identified in line with Annex 1 to this Guidance.

Where doubts related to the captive-bred origin of the specimens in trade have been identified, the scientific authority (or the management authority, after consultation with the scientific authority) in the Member State of import consults with the scientific authority (and possibly the management authority) in the country of export/origin. This is to obtain information confirming that the specimens to be imported comply with the criteria for captive-bred specimens.

If the necessary information is not available from the management or scientific authority in the country of export/origin, the scientific authority in the importing Member State may consult the applicant directly. In doing so, the authority is invited to use the checklist of questions set out in Annex 2. The checklist is indicative, should be adapted to each case, and not every question may be applicable in all cases.

The opinions of the scientific authority should be provided case by case, and can be formulated for a particular specimen, for a specific breeding facility, for a species (such as whether a species is easy or difficult to breed), or for imports from a specific country.

The scientific authority in the Member State of import informs the management authority about their findings. Scientific authorities are invited to share their assessments with the CITES Authorities of other EU Member States through the Captive Breeding Database (9).

Where there are concerns relating to captive breeding of the species (negative advice or continuous doubt), the scientific authority in the Member State should bring the matter to the attention of the Scientific Review Group (SRG) for it to consider the issue and take appropriate action. In such cases, the European Commission may consult the management or scientific authority in the country of export or the range states.

The outcome of the consideration by the SRG is made available through Species+ (10) or the Captive Breeding Database, as appropriate, as a reference for the scientific and management authorities.

5. Internal EU trade

5.1. Role of the management and scientific authority in assessing applications for internal EU trade in captive-bred Annex A specimens

Before granting a certificate authorising commercial activities for specimens claimed to be born and bred in captivity, the relevant management authority, in consultation with the competent scientific authority, should be satisfied that the criteria in Article 54 of the Implementing Regulation are met.

Such consultation can be undertaken case by case for each application, or it can be species-specific. In the event of recurring applications for a certain species, and when the parental stock is already covered by valid intra-EU certificates with source code C, it may not be necessary to consult the scientific authority.

The management or scientific authority should request at least the following elements every time a known breeder is requesting an intra-EU certificate (see further below for additional aspects applicable to new breeders):

1. Name and address of the breeder;

2. Permits or intra-EU certificates for the parental stock (which can consist of two animals, or more in the case of group housing. In this case, the smallest group of potential parents should be listed together with their respective proof of legal acquisition, age, and sex);

3. Number of offspring per reproductive event;

4. Identification of each offspring;

5. (Approximate) date of birth;

6. Sex of the offspring (if available);

7. A description of breeding methods – when the number of offspring seems too high compared to figures that can be found in literature, or for species that are very rarely bred in captivity. Scientific advancements that support reproduction, such as in vitro fertilisation, need to be taken into account, as these may result in higher reproductive rates than would be expected under natural conditions. In addition, more than one clutch can often be obtained in captivity, whereas this may be rare in the wild.

When assessing an application for a certificate for a captive-bred specimen, the management authority should keep in mind the following indicators of higher or lower risk:

— Is the breeder known for legally breeding this species?

— Has the parental stock reached sexual maturity (here again possible differences should be considered between animals kept in captive conditions compared to information about specimens in the wild), and is it still capable of reproducing?

— Is the alleged number of offspring plausible?

— Is the alleged number of clutches plausible?

— Has this parental stock produced offspring in the past?

— Was the parental stock born in captivity? If not, has an F2 generation been produced in similar circumstances?

— Does the application concern an endemic EU species or a species indigenous to the EU, or a species known to be illegally sourced in the wild?

In the event of a new breeder or uncertainties about any of the above information, the management authority may, in addition to questions 1-7 above, ask for additional information. This could include, as relevant:

— Size and origin (wild or captive-bred) of the founder breeding stock;

— Size of the current breeding stock in total number of individuals, including the male/female ratio;

— Details of the specimens’ parents, including birth/hatch date (ring numbers/microchips and photographs for species where individual specimens may be reliably recognised based on specific body patterns, if available);

— The year of first successful breeding;

— Whether the breeder has bred to second generation (F2);

— Whether the breeding stock has been augmented with wild-taken individuals, and if so, details of how many, when, and their origin;

— Full details of annual production.

The management authority should also consult with the competent scientific authority in the event of:

— Applications for a species known to be difficult to keep and/or breed in captivity;

— Applications for specimens that, from their declared age, make the claims of captive-breeding unlikely, due to the high costs associated with maintaining that species in captivity over the given period;

— Applications for species that are slow to mature and have low reproductive potential;

— Doubts about plausible numbers of offspring and clutches, reproductive age, or other aspects of captive breeding.

Management authorities can consider a physical inspection by the relevant authorities and/or request a DNA analysis to verify that the declared offspring is indeed born and bred in captivity from the alleged parents/parental stock.

A physical inspection is generally warranted where there are doubts and when a genetic analysis is not possible. The taking of a sample for a genetic analysis can be done by the applicant (preferably with a supervising representative of the relevant authorities) or by a designated official, depending on the risk analysis done by the management authority in consultation with the scientific authority.

Consultation between management authorities is warranted when there are concerns about the validity of the certificates issued by another Member State for specimens involved in doubtful captive-breeding claims.

The above-mentioned actions do not need to be taken for specimens of species listed in Annex X of Regulation 865/2006. These specimens are deemed to fulfil the conditions of Article 54 (specimen born and bred in captivity, source code C), unless there is strong evidence to the contrary. They do not need to be covered by an intra-EU certificate or any other type of documentation, nor do they need to be marked.

5.2. Role of the management and scientific authority in internal EU trade in captive-bred Annex B specimens

Trade in Annex-B-listed specimens is authorised as long as it can be proven that the specimens are acquired in accordance with the legislation in force for the conservation of fauna and flora.

A guidance document (11) detailing the requirements for documentary evidence for internal EU trade in Annex B animals has been developed to help Member States implement this rule, which also applies to trade in captive-bred specimens.

The same assessment as described above for Annex A should be made when controlling trade in captive-bred specimens of species listed in Annex B. When in doubt, the management authority should consult the scientific authority and should consider a physical inspection and/or sample taken for genetic analysis as described above.

Consultation between management authorities is advised when there are concerns about specimens claimed to have been bred in captivity in another Member State, especially where there is a high risk (e.g. no evidence of legal import into EU countries, species is difficult to breed to second generation, etc.).

6. Exports and re-exports from the EU

A specimen of an animal species should only be considered to be captive-bred when the competent management authority, in consultation with the scientific authority in the Member State concerned, is satisfied that the criteria in Article 54 of the Implementing Regulation are met.

Note that there is a difference between (i) re-exports of captive-bred specimens previously imported into the EU and (ii) exports of specimens bred in captivity in the EU.

6.1. Re-exports of captive-bred specimens

Where captive-bred specimens are re-exported from an EU Member State that is not the one that imported the specimens into the EU, both Member States must exchange information (see Article 5(5) of the Basic Regulation).

Where specimens are marked and can be clearly assigned to a document, a specific consultation with the scientific authority may not be needed. The baseline is the guidance on proof of legal acquisition for live specimens of Annex-B species (see footnote 11), with the checklist in its Annex to be considered as the minimum documentation or information that needs to be provided.

6.2. Exports of captive-bred specimens

6.2.1. Role of the management authority in assessing export permits for captive-bred specimens

In consultation with the competent scientific authority of the Member State, the management authority examines whether the specimens meet the criteria for specimens considered to be bred in captivity, in line with Article 54 of the Implementing Regulation and Article 7(1) of the Basic Regulation.

The management authority assesses the information provided in the application, to ensure that the specimen was obtained in accordance with the laws and regulations of the EU (legal-acquisition finding). If the application involves specimens already covered by certificate, the management authority should undertake further examination, based on a risk-assessment, and, where relevant, consult the scientific authority or other Member States in the event of doubt.

The management authorities should pay specific attention to export applications when increased risks have been identified in line with Annex 1 to this document. The factors listed in the Annex are indicative and are no substitute for a proper assessment of each case. The assessment may reveal that the captive-breeding claim is valid and robust despite the presence of one or more risks.

For exports of live specimens of captive-bred animal species listed in Annex B, Member States should refer to the guidance document on proof of legal acquisition for live animals of Annex B species (see footnote11) as well as the necessary documentary evidence.

Management authorities may choose to verify legal acquisition using a risk assessment approach, based on the following factors, where they are relevant to a particular export application:

i) The Annex in which the species is listed;

ii) The source of the specimen;

iii) Occurrence of the species in a controlled environment in the Member State dealing with the application;

iv) Documented illegal trade;

v) Purpose of trade (commercial or non-commercial);

vi) History of applications from the applicant, including any history of non-compliance;

vii) Monetary value of the specimens; and

viii) Existence of look-alike species.

Where, after considering and balancing the above factors, a management authority concludes that there is a high risk that the specimen to be exported was not legally acquired, it may choose to require additional information and engage in further scrutiny of the chain of custody. Where a management authority concludes that the risk of illegal acquisition is low, it may choose to engage in less scrutiny.

As per Article 65(4) of the Implementing Regulation, the management authority needs to verify whether specimens of species listed in Annex A are marked according to Article 66 of that Regulation.

For any export (or re-export) of specimens listed in Annex A or B, when specimens are marked, it is advisable to specify the identification numbers on the export permit (or re-export certificate) in description box 8, to describe the specimens as precisely as possible.

Specimens of species listed in Annex X of Regulation 865/2006 do not need to be marked for export and it can be considered that the conditions for issuing an export permit are met.

6.2.2. Role of the scientific authority in assessing export permits for captive-bred specimens

When consulted by the management authority, the scientific authority provides advice on whether the specimens covered by a permit or certificate meet the criteria for captive-bred specimens (in line with Article 54 of the Implementing Regulation and Article 5(2)(d) (referred to in Article 5(4)) of the Basic Regulation), to assess whether the export is harmful to the conservation of the species.

The opinions of the scientific authority should be provided case by case, and may be formulated for each individual specimen, for a specific breeding facility, or for a species (such as whether a species is easy or difficult to breed).

Where there are doubts related to the captive-bred origin of specimens reared in another EU Member State, the management or scientific authority in the Member State of export asks the management or scientific authority in the other Member State to confirm whether the specimens comply with the criteria for captive-bred specimens.

The management and scientific authorities are invited to share their assessments with the CITES Authorities of other EU Member States through the Captive Breeding Database (12), where appropriate.

In addition, where there are persistent concerns relating to captive breeding, the scientific authorities in the Member States are encouraged to bring the matter to the attention of the Scientific Review Group (SRG) or – through the management authority – to the Group of Experts of the CITES management authorities.

7. Confiscated animals

This section provides guidance on handling confiscated specimens and on whether or not such specimens can be used in a captive-breeding facility.

In consultation with the scientific authority and, where appropriate, other relevant bodies, the management authority should decide on the most appropriate handling of confiscated specimens, and whether to maintain them in captivity, return them to the country of origin for possible return to the wild (13), or euthanise them.

CITES Resolution Conf. 17.08 on the Disposal of illegally traded and confiscated specimens of CITES-listed species (14) can provide guidance in this matter, notably the decision tree analysis in Annex 1 of the Resolution.

The initial reason for confiscation needs to be taken into consideration, as sometimes specimens were not seized due to issues about their legality but rather due to other infringements (e.g. linked to transport conditions). Management authorities should also be aware of new smuggling practices, where traffickers count on specimens being confiscated and legalised later through a rescue centre. Management authorities should take every precaution to avoid confiscated specimens ending up back in the hands of the persons involved in the infringement.

Confiscated specimens could be added to stocks for species that already have established breeding stocks in the EU or to establish new breeding stocks. If it concerns a species for which an EAZA Ex-situ Programme (EEP) or European Studbook (ESB) exists, for example, the preferred way is to place the specimen in the care of such a coordinated breeding programme. This is certainly the case for a species which has not been previously imported with valid CITES permits or certificates.

Member States can cooperate with other CITES Parties in properly disposing of confiscated animals by allowing import, export or re-export of such specimens. In the case of import, a non-detriment finding remains a requirement. However, commercial trade in confiscated specimens of species listed in Annex A is not allowed.

A distinction must be made between specimens of species listed in Annex A and those listed in Annex B, C or D. Additional caution is needed for rare species, or species for which (almost) no breeding has taken place in the EU.

Article 8(6) of the Basic Regulation authorises the competent authorities in the Member States to sell any confiscated specimen of the species listed in Annexes B to D, provided that it is not returned directly to the person or body from whom it was confiscated or who was party to the offence. Such specimens may then be used for all purposes as if they had been legally acquired.

Confiscated specimens of species listed in Annex A cannot be sold. Annex-A-listed specimens should be considered to have been legally acquired after being confiscated and handed over to the custodian who keeps these confiscated specimens for non-commercial use. It should be detailed how the specimens, and their potential offspring, may be used.

More careful consideration is needed to assess whether confiscated specimens of Annex A species can be added into a breeding stock. When evaluating whether a confiscated Annex A specimen can be entrusted to a captive-breeding facility, the following aspects should be considered (in consultation with the relevant scientific authority):

— Is the captive-breeding facility associated with a formal captive-breeding conservation programme? Or is it rather a commercial operation which sells most of its offspring?

— Is the species known to be bred in captivity and produce F2 offspring?

— Is the origin of the specimen known?

Giving full ownership of a confiscated specimen to a commercial captive-breeding facility would seem incompatible with the EU Wildlife Trade Regulations. Annex-A-listed specimens could be ‘adopted’, provided that (i) the facility has the necessary knowledge and infrastructure and (ii) the animals are not used for sale or commercial breeding.

When a confiscated specimen needs to be placed in another Member State, before issuing a certificate authorising this transfer the responsible issuing management authority should liaise with the scientific authority in the receiving Member State (as per Article 9 of the Basic Regulation) and (ideally) inform the management authority in the receiving Member State. Any restrictions on the use of the specimen should be mentioned in the certificate, as agreed by both Member States.

(1) 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 L 61, 3.3.1997, p. 1) (the ‘Basic Regulation’) and related Commission regulations, in particular: Commission Regulation (EC) No 865/2006 of 4 May 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 (OJ L 166, 19.6.2006, p. 1) (the ‘Implementing Regulation’), and Commission Implementing Regulation (EU) No 792/2012 of 23 August 2012 laying down rules for the design of permits, certificates and other documents provided for in Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein and amending Commission Regulation (EC) No 865/2006 (OJ L 242, 7.9.2012, p. 13) (‘Permits Regulation’).

(2) ‘Captive-bred specimens’ in this document are those which meet the criteria in Article 54 of the Implementing Regulation.

(3) Harfoot, M. et al, 2018. Unveiling the patterns and trends in 40 years of global trade in CITES-listed wildlife. Biological Conservation, 223, 47-57.

(4) This refers to the status of the species on the IUCN Red List and not the CITES Appendices in which the species is listed.

(5) https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52019XC0321(01)&from=EN

(6) Article 11.2(a) of the Basic Regulation

(7) See https://www.eaza.net/assets/Uploads/CCC/August-2020.pdf

(8) E.g. declarations of production of offspring at a scale or speed that is considered unlikely to be feasible taking into account the breeding biology of the species.

(9) http://captivebreeding.unep-wcmc.org

(10) https://speciesplus.net/species

(11) Proof of legal acquisition for live animals of Annex B species and necessary documentary evidence, (OJ C 107, 21.3.2019, p. 2).

(12) http://captivebreeding.unep-wcmc.org

(13) Return to the wild is not possible in many cases.

(14) https://cites.org/sites/default/files/document/E-Res-17-08.pdf