COMMISSION NOTICE

Guidance document on the export, re-export, import and intra-Union trade of rhinoceros horns

(2019/C 386/04)

1. Background information on the conservation of rhinoceros and the threats posed by poaching and illegal trade

All rhinoceros species are included in CITES Appendix I, with the exception of populations of southern white rhino (Ceratotherium simum simum) from South Africa and Eswatini, which are listed in Appendix II.

Poaching of rhinos in Africa increased for six consecutive years from 2009-2015 to peak at almost 3.7 rhinos per day in 2015, albeit at a slowing rate of increase from 2013-2015 (1). While recorded poaching levels have declined since 2015, poaching still remains at high levels with around 3.1 rhinos per day poached in 2017. The decline in poaching from 2015 appears to have continued into 2018, with reported poaching in the first eight to nine months of the year remaining low or falling in many range States (2). Previous increases in populations of white and black rhinoceros (Ceratotherium simum and Diceros bicornis) resulting from strong conservation measures across range States in the last decades, notably in South Africa, are thus undermined by ongoing rhino poaching and rhino horn trafficking.

Organised crime operators have also been active across the EU to acquire and trade rhino horns. While the introduction into the EU of rhinos and derived products is not allowed for commercial purposes, their introduction can be authorised under certain conditions e.g. as hunting trophies (3). These hunting trophies are considered as personal and household effects under Article 57 of Commission Regulation (EC) No 865/2006 (4). They cannot be sold or otherwise used for commercial purposes and must remain in the property of the hunter after the import. In recent years, the provisions on trade in hunting trophies for rhino specimens have been deliberately misused by networks paying hunters to go on rhino hunting safaris in e.g. South Africa. This modus operandi of hiring ‘pseudo-hunters’ and even ‘bona fide hunters’ has been used widely by criminal networks operating in the EU, as investigations in certain Member States and third countries have shown. After the import of the trophy, the networks take possession of the horns and smuggle them to Asia.

Before the adoption of the first version of this guidance document in February 2011, a number of Member States noticed an increase in intra-EU trade and re-export of rhino horns presented as ‘antiques’ or ‘worked specimens’. In many cases investigations revealed that the motivation of buyers had little to do with the artistic nature of the objects. An indication for this was that the prices for such products were mainly correlated with their weight, rather than with their artistic value.

In 2010 two Member States adopted a strict reading of Union legislation on re-export of rhino products. Other Member States then received applications for re-export or requests for information on how such applications would be handled by them. This indicated that some traders were trying to circumvent the two regimes and find other ways to re-export the items from the EU.

Another indication of continued threats is that, while the number of thefts of rhino horns in museums, auction houses and antique or taxidermist shops recently decreased substantively, for the first time a rhino was killed for its horns in a European zoological park in March 2017 (5).

There is a strong presumption that re-exports of rhino horns from the EU might fuel the demand for rhino horns, predominantly for medical use, in Asia and maintain the high prices or even drive them further upwards. It seems that in many Member States there are coordinated attempts by some traders to acquire rhino horns with the purpose of (re-)exporting them to Asia. In turn, such high demand for high-value products also represents a lucrative market which is very attractive to poachers, encouraging illicit trade and criminal activities. This further imperils the conservation of the remaining rhino populations.

2. Purpose and status of this document

The Union’s regulatory framework on wildlife trade needs to be interpreted in the light of its objectives, the precautionary principle, and with due regard to knowledge of recent developments. Member States need to continue enforcing EU legislation on wildlife trade in a manner that contributes to the protection and conservation of the species.

Guidance is needed to ensure all Member States have a common approach for export and re-export of rhino products (section 3.a), for intra-EU trade in rhino horns (section 3.b), for import into the EU of rhino products declared as ‘hunting trophies’ (section 4), as well as for other imports into the EU of worked and raw specimens of rhino horn for personal non-commercial use (section 5).

This guidance document was prepared by Commission staff and a draft was endorsed by the Committee on Trade in Wild Fauna and Flora, established pursuant to Article 18 of Council Regulation (EC) No 338/97 (6) (‘the Basic Regulation’), and thus by the competent authorities of the Member States.

The guidance document is intended to assist national authorities in the application of Regulation (EC) No 338/97. It is not legally binding; its sole purpose is to provide information on certain aspects of Regulation (EU) No 338/97 and Regulation (EC) No 865/2006, and on measures considered to be best practice. It does not replace, add to or amend the provisions of applicable Union law. The document should also not be considered in isolation; it must be used in conjunction with the legislation, including other relevant legislation on imports of animal products, and not as a ‘stand-alone’ reference. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law.

The document will be published electronically by the Commission services, and may be published by the Member States. It will be reviewed by the Union’s Committee on Trade in Wild Fauna and Flora in due course.

3. Guidance on the interpretation of EU rules on export, re-export and intra-EU trade of rhino horns

Acts of Union law must be interpreted in accordance with their aims. Article 1 of Council Regulation (EC) No 338/97 provides that its aim is ‘to protect species of wild fauna and flora and to guarantee their conservation by regulating trade therein’. The provisions of the Regulation must therefore be construed in a manner consistent with that aim.

Moreover, Article 191(2) of the Treaty on the Functioning of the European Union provides that environmental policy is to be based on the precautionary principle. This implies that if an action or policy risks resulting in serious or irreversible harm to the public or to the environment, the lack of full scientific certainty should not be used as a reason for postponing cost-effective measures to prevent such damage. The principle aims at ensuring a higher level of environmental protection through preventive decision-making in the case of such risks.

In accordance with the settled case law of the Court of Justice of the European Union, the precautionary principle applies, inter alia, in the interpretation and application of the Union environmental acquis, and therefore also to the interpretation and application of the Basic Regulation. Member States should apply the precautionary principle in exercising their discretion pursuant to the Basic Regulation. (7)

(a) Applications for permits or certificates pursuant to Article 5 of Regulation (EC) No 338/97 (export and re-export)

Pursuant to Article 5(2)(d) of the Basic Regulation, when assessing applications for export and re-export of rhino horns, Member States’ Management Authorities need to be ‘satisfied, following consultation with the competent Scientific Authority, that there are no other factors relating to the conservation of the species which militate against issuance of the export permit’ (emphasis added). This provision applies to applications for export permits as well as — pursuant to Article 5(3) — to re-export certificates for specimens of Annex A and Annex B species. The condition applies to all rhino horn specimens, independently of whether they are considered ‘worked specimens’ or not (8).

In the current circumstances, in the light of the precautionary principle, and unless there comes to light conclusive scientific evidence to the contrary, Member States should consider that there are indeed serious factors relating to the conservation of rhino species that militate against the issuance of export permits and re-export certificates.

It is therefore considered legitimate for the Member States to ensure that, as a temporary measure, no export permits or re-export certificates are issued for rhino horns, except if the Management Authority is satisfied that the permit or certificate will be used for legitimate purposes, such as in the following cases:

i. the item is part of a genuine exchange of cultural or artistic goods between reputable institutions (i.e. museums);

ii. the item is a recognised piece of art and the Management Authority is confident that its value ensures that it will not be used for other purposes;

iii. the item has not been sold and is an heirloom moving as part of a family relocation or as part of a bequest; or

iv. the item is part of a bona fide research project.

Any stricter measures by third countries, which may include general import bans for rhino horns, should also be taken into account. In that context, before issuing a re-export certificate or export permit under the conditions set out in this section, the Member State concerned should inform the CITES authorities of the country of destination about the transaction and request them to verify that they are in agreement with the import of that specimen.

In any case, the identities of the exporter and of the importer should be verified and recorded (e.g. by keeping a copy of their identification documents).

(b) Applications for certificates pursuant to Article 8(3) of Regulation (EC) No 338/97 (intra-EU trade)

Intra-EU commercial trade of Annex A specimens is prohibited under Article 8(1) of the Basic Regulation. An exception is provided for in Article 8(3) of that Regulation, which authorises Member States to derogate from this prohibition if certain conditions (listed in subparagraphs (a) to (h)) are met (9). The use of the term ‘may’ in Article 8(3) (10) implies that Member States are not generally obliged to grant a certificate for intra-EU trade even when those conditions are met, except if otherwise required by Union law. In other words, Article 8(3) cannot be considered as conferring the right to an applicant to obtain a certificate for intra-EU trade. Member States can refuse to grant a certificate if this is appropriate to protect the species or to guarantee its conservation, and if the refusal does not go beyond what is necessary to achieve that aim. The Commission services and the Union’s Committee on Trade in Wild Fauna and Flora are of the view that this will be the case where the legitimacy and consistency of a transaction with the objectives of the Basic Regulation have not been conclusively demonstrated by the applicant.

Due to the circumstances described in the first section of the present document, Member States should, as a temporary measure, in principle not grant any certificate for intra-EU trade of rhino horn under Article 8(3).

Where provisions under the domestic law of a Member State do not allow its authorities to refuse applications for intra-EU certificates for commercial trade in rhino horns on the basis of Article 8(3) as recommended above, and where specimens are traded for non-commercial purposes within the EU (change of ownership due to donation or inheritance to a private or public entity — such as a museum, for example), the Member State’s CITES Management Authority should follow a risk-based approach and ensure maximum scrutiny in handling applications for intra-EU certificates.

If issued, an intra-EU certificate should describe the item concerned with sufficient detail to ensure that it can only be used for the specific specimen concerned and cannot be used for laundering of other specimens. In addition and where legislation allows, Member States may consider collating, verifying and recording identities of the applicant and of the purchaser (e.g. by keeping a copy of their identification documents).

Finally, certificates for intra-EU trade should be issued on a transaction-specific basis — allowing one transaction only — to ensure that the certificate only is valid for the holder named in box 1 of the certificate. This recommendation is based on the second subparagraph of Article 11(3) of Regulation (EC) No 865/2006, allowing Member States to ‘issue transaction-specific certificates where it is considered that there are other factors relating to the conservation of the species that militate against the issuance of a specimen-specific certificate.’

4. Guidance on the interpretation of EU rules on imports into the EU of rhino ‘hunting trophies’ pursuant to Article 57 of Regulation (EC) No 865/2006

To address the problem of the deliberate misuse of the provisions on trade in hunting trophies, the CITES Rhinoceros Enforcement Task Force has recommended to ‘implement legislation and enforcement controls to prevent horns that are part of legally acquired trophies from being used for purposes other than hunting trophies, and to ensure that these trophies remain in possession of their owners for the purpose indicated in the CITES export permit’ (11).

In that context, it is recommended that Member States, when processing an import application for hunting trophies of rhinoceros specimens:

i. as always, consult whether the Scientific Authorities determined that the introduction into the EU will have a harmful effect on the conservation of the species — no further measures are needed and the application must be rejected if a non-detriment finding cannot be made;

ii. pay particular attention to the hunting experience of the applicant;

iii. inform the applicant that the import into the EU can be authorised for personal use only and that there is no possibility for the owners of hunting trophies to be granted a certificate for a commercial purposes within the Union under Article 8(3)(c);

iv. if necessary, contact the CITES management authority of the exporting country to ensure they are aware of the planned hunt and intended export, and do not have information militating against the issuance of the import permit;

v. when (after duly verifying that all conditions are met in accordance with the Basic Regulation and associated Commission Regulations) issuing the import permit, include the following notice: ‘Import of this hunting trophy is for personal use only. The item shall remain in the property of the holder of this permit. It shall be presented to competent authorities upon their request’;

vi. if possible under national legislation, carry out risk-based checks on importers of rhino hunting trophies imported after 2009 (12) to verify that they are still in possession of the trophies. The results of those checks should be shared with the other Member States, the European Commission and the CITES Secretariat.

When a higher risk has been identified of a hunting trophy being subsequently misused for illegal trade, Member States may consider issuing an import permit for a hunting trophy with the condition that it would not contain the rhino horn (e.g. replacing it with an artificial replica).

5. Guidance on the interpretation of EU rules on imports into the EU of worked and raw specimens of rhino horn for other types of personal non-commercial use

Member States should pay particular attention and exercise great vigilance in relation to all applications for imports of specimens of rhino horn — worked and raw specimens other than hunting trophies — for personal purposes. The Scientific Authority Guidelines (13) should be taken into account when assessing how to interpret the rules applicable to imports of Annex A specimens and what ‘other purposes’ can be considered as not detrimental to the conservation of the species.

(1) Emslie, R., Milliken, T. and Talukdar, B. (2016). African and Asian Rhinoceroses — Status, Conservation and Trade. Available at https://rhinos.org/wp-content/uploads/2015/07/final-cop16-rhino-rpt.pdf

(2) Rhinoceroses (Rhinocerotidae spp.) — Report of the Standing Committee and the Secretariat, CoP18 Doc. 83.1, available at https://cites.org/sites/default/files/eng/cop/18/doc/E-CoP18-083-01.pdf

(3) ‘Hunting trophy’ is defined in Article 1(4b) of Commission Regulation (EC) No 865/2006.

(4) OJ L 166, 19.6.2006, p. 1.

(5) https://www.bbc.com/news/world-europe-39194844

(6) OJ L 61, 3.3.1997, p. 1.

(7) For further considerations on the application of the precautionary principle, please refer also to the Communication from the Commission on the precautionary principle of 2 February 2000, COM(2000) 1 — https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A52000DC0001

(8) See Commission Notice — Guidance on Worked Specimens under the EU Wildlife Trade Regulations, OJ C 154, 17.5.2017, p. 15-26 — https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2017.154.01.0015.01.ENG

(9) Cf. paragraph 34 of the ruling of the European Court of Justice in Case C-510/99: ‘That provision authorises, but does not require, exemptions from the prohibition it lays down’.

(10) Article 8(3) of Council Regulation (EC) No 338/97 reads: ‘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.’

(11) See http://cites.org/sites/default/files/notif/E-Notif-2014-006A.pdf

(12) For imports of rhino hunting trophies which occurred before the entry into force of the requirement for an import permit, it should be possible, upon request, to obtain information on successful applicants for rhino hunting trophies from the exporting countries.

(13) http://ec.europa.eu/environment/cites/pdf/srg/guidelines.pdf, p. 11 and 12