COMMON POSITION (EC) No 59/98 adopted by the Council on 20 July 1998 with a view to adopting Council Directive 98/. . ./EC relating to the keeping of wild animals in zoos (98/C 364/02)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 130s(1) thereof,

Having regard to the proposal from the Commisson,

Having regard to the opinion of the Economic and Social Committee (1),

Acting in accordance with the procedure laid down in Article 189c of the Treaty (2),

Whereas Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (3) requires evidence of the availability of adequate facilities for the accommodation and care of live specimens of a great many species before their importation into the Community is authorised; whereas that Regulation prohibits the display to the public for commercial purposes of specimens of species listed in Annex A thereof unless a specific exemption was granted for education, research or breeding purposes;

Whereas Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (4), and Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (5), prohibit the capture and keeping of and trade in a great number of species, whilst providing for exemptions for specific reasons, such as research and education, repopulation, reintroduction and breeding;

Whereas the proper implementation of existing and future Community legislation on the conservation of wild fauna and the need to ensure that zoos adequately fulfil their important role in the conservation of species, public education, and/or scientific research make it necessary to provide a common basis for Member States' legislation with regard to the licensing and inspection of zoos, the keeping of animals in zoos, the training of staff and the education of the visiting public;

Whereas action at the Community level is required in order to have zoos throughout the Community contributing to the conservation of biodiversity in accordance with the Community's obligation to adopt measures for ex situ conservation under Article 9 of the Convention on Biological Diversity;

Whereas a number of organisations such as the European Association of Zoos and Aquaria have produced guidelines for the care and accommodation of animals in zoos which could, where appropriate, assist in the development and adoption of national standards,

HAS ADOPTED THIS DIRECTIVE:

Article 1 Aim

The objectives of this Directive are to protect wild fauna and to conserve biodiversity by providing for the adoption of measures by Member States for the licensing and inspection of zoos in the Community, thereby strengthening the role of zoos in the conservation of biodiversity.

Article 2 Definition

For the purpose of this Directive, 'zoos` means all permanent establishments where live animals of wild species are kept for exhibition to the public for seven or more days a year, with the exception of circuses, petshops and establishments which Member States exempt from the requirements of this Directive on the grounds that they do not exhibit a significant number of animals or species to the public and that the exemption will not jeopardise the objectives of this Directive.

Article 3 Requirements applicable to zoos

Member States shall take measures under Articles 4, 5, 6 and 7 to ensure that all zoos implement the following conservation measures:

- participating in research from which conservation benefits accrue to the species, and/or training in relevant conservation skills, and/or the exchange of information relating to species conservation and/or, where appropriate, captive breeding, repopulation or reintroduction of species into the wild,

- promoting public education and awareness in relation to the conservation of biodiversity, particularly by providing information about the species exhibited and their natural habitats,

- accommodating their animals under conditions which aim to satisfy the biological and conservation requirements of the individual species, inter alia, by providing species specific enrichment of the enclosures; and maintaining a high standard of animal husbandry with a developed programme of preventive and curative veterinary care and nutrition,

- preventing the escape of animals in order to avoid possible ecological threats to indigenous species and preventing intrusion of outside pests and vermin,

- keeping of up-to-date records of the zoo's collection appropriate to the species recorded.

Article 4 Licensing and Inspection

1. Member States shall adopt measures for licensing and inspection of existing and new zoos in order to ensure that the requirements of Article 3 are met.

2. Every zoo shall have a licence within four years after the entry into force of this Directive or, in the case of new zoos, before they are open to the public.

3. Each licence shall contain conditions to enforce the requirements of Article 3. Compliance with the conditions shall be monitored inter alia by means of regular inspection and appropriate steps shall be taken to ensure such compliance.

4. Before granting, refusing, extending the period of, or significantly amending a licence, an inspection by Member States' competent authorities shall be carried out in order to determine whether or not the licensing conditions or proposed licensing conditions are met.

5. If the zoo is not licensed in accordance with this Directive or the licensing conditions are not met, the zoo or part thereof:

(a) shall be closed to the public by the competent authority; and/or

(b) shall comply with appropriate requirements imposed by the competent authority to ensure that the licensing conditions are met.

Should these requirements not be complied with within an appropriate period to be determined by the competent authorities but not exceeding two years, the competent authority shall withdraw or modify the licence and close the zoo or part thereof.

Article 5

Licensing requirements set out in Article 4 shall not apply where a Member State can demonstrate to the satisfaction of the Commission that the objective of this Directive as set out in Article 1 and the requirements applicable to zoos set out in Article 3 are being met and continuously maintained by means of a system of regulation and registration. Such a system should, inter alia, contain provisions regarding inspection and closure of zoos equivalent to those in Article 4(4) and 4(5).

Article 6 Closure of zoos

In the event of a zoo or part thereof being closed, the competent authority shall ensure that the animals concerned are treated or disposed of under conditions which the Member State deems appropriate and consistent with the purposes and provisions of this Directive.

Article 7 Competent authorities

Member States shall designate competent authorities for the purposes of this Directive.

Article 8 Penalties

Member States shall determine the penalties applicable to breaches of the national provisions adopted pursuant to this Directive. The penalties shall be effective, proportionate and dissuasive.

Article 9 Implementation

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than . . . (6). They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.

2. Member States shall communicate to the Commission the main provisions of national law which they adopt in the field covered by this Directive.

Article 10 Entry into force

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 11

This Directive is addressed to the Member States.

Done at . . .

For the Council

The President

(1) OJ C 205, 15.7.1996, p. 63.

(2) Opinion of the European Parliament of 29 January 1998 (OJ C 56, 23.2.1998, p. 34), Council Common Position of 20 July 1998 and Decision of the European Parliament of . . . (not yet published in the Official Journal).

(3) OJ L 61, 3.3.1997, p. 1. Regulation as last amended by Commission Regulation (EC) No 2307/97 (OJ L 325, 27.11.1997, p. 1).

(4) OJ L 103, 25.4.1979, p. 1. Directive as last amended by Directive 97/62/EC (OJ L 223, 13.8.1997, p. 9).

(5) OJ L 206, 22.7.1992, p. 7. Directive as last amended by Commission Directive 97/62/EC (OJ L 305, 8.11.1997, p. 42).

(6) Three years after the date of publication in the Official Journal.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 13 December 1995, the Commission submitted a proposal for a Recommendation based on Article 130s(1) relating to the keeping of wild animals in zoos.

2. The European Parliament delivered its opinion on 29 January 1998 (1) at first reading, proposing 22 Amendments. Having rejected all of these Amendments, the Commission did not submit an amended proposal.

The Economic and Social Committee delivered its opinion on 24 April 1996 (2).

3. On 20 July 1998, the Council adopted its common position in accordance with Article 189c of the Treaty.

II. OBJECTIVE

4. The purpose of the proposal for a recommendation was to define general principles governing the licensing, inspection and closure of zoos as well as the keeping of animals, training and safety of staff and education and safety of the public. The incorporation of these principles into national legislation was to help to improve the conditions in which animals are kept and enable zoos to play their proper role in educating the public, scientific research and the conservation of species.

These principles were backed up by very detailed annexes incorporating the guidelines developed by the European Association of Zoos and Aquaria (EAZA).

III. ANALYSIS OF THE COMMON POSITION

General observations

5. While adopting the essence of the foregoing objective, the Council felt that:

- emphasis should be placed on the protection of wild fauna and the preservation of biodiversity and the role of zoos in this respect;

- to achieve this objective, a binding instrument should be adopted, and in the case in point - as initially proposed by the Commission in 1991 and requested by the European Parliament - a directive given that it would be impossible to adopt detailed provisions covering the whole range of establishments likely to be covered by this instrument.

6. On the basis of the above guidelines, the Council was able to incorporate Amendments 1, 5, 6, 8, 9, 10, 11, 12, 13, 16 and 17.

Specific comments

(References to articles or recitals relate to the common position)

7. Amendments not included in the common position

- While noting in the final recital that guidelines drawn up by several organisations for the accommodation and care of animals could assist the development and adoption of national standards, the Council thought it inadvisable to attach EAZA guidelines on the ground that it did not seem possible to agree on such detailed annexes which would have to be applied uniformly to all the establishments covered by the Directive, while taking account of their diversity in terms of size and activity.

Consequently, the Council did not incorporate Amendments 4, 18, 19, 20, 21, 22, 23 and 29 relating to those guidelines;

- In the light of all of the information relating to animal husbandry and care already referred to in the third indent of Article 3, the Council did not consider it necessary to incorporate amendment 15;

- In compliance with the provisions in force (notably Regulation (EC) No 338/97) and in view of the definition given in Article 2, the Council saw no need to limit in other respects the species whose specimens could be kept in zoos and therefore did not adopt amendment 7;

- Owing in particular to the records provided for in the fifth indent of Article 3, zoos can be a source of information for trade in wild animals. As this information is by no means limited to illegal trade, it was considered inadvisable to adopt amendment 28.

8. Amendments made to the Commission proposal

In addition to the modifications resulting from the amendments referred to in point 6 above, and the drafting of Article 1 in line with point 5 above, the main amendments made by the Council to the Commission proposal are as follows:

- Article 2 clarifies the concept of permanent establishments referred to in the note in point 1 of the proposal for a Recommendation and limits the exceptions to establishments whose nature and size exempt them from the Directive's obligations;

- Article 3 essentially incorporates the elements in point 8 of the proposal redirecting them towards the objective of conservation of diversity and supplementing them (fourth indent) as regards ecological threats to or posed by indigenous species;

- Article 4 essentially includes points 1 to 6 of the proposal stating that zoos should be licensed within four years of the Directive's entry into force or prior to opening to the public, and not merely that Member States should adopt provisions to that effect; Article 5 acknowledges that systems equivalent to the granting of licences may be applied where they can ensure that the essential provisions (as regards conservation, inspection and closure) are implemented;

- the binding nature of the Directive is reinforced by Article 8 under which Member States must determine the penalties applicable to breaches of the provisions transposing the Directive;

- Article 9 gives Member States three years in which to transpose the Directive.

(1) OJ C 56, 23.2.1998, p. 34.

(2) OJ C 204, 15.7.1996, p. 63.