EN Official Journal of the European Union C 209/11

Judgment of the Court (Third Chamber) of 19 June 2008 (reference for a preliminary ruling from the Raad van State van België (Belgium)) — Nationale Raad van Dierenkwekers en Liefhebbers VZW, Andibel VZW v Belgische Staat

(Case C-219/07) (1)

(Article 30 EC - Regulation (EC) No 338/97 - Protection of species of wild fauna and flora - Prohibition on holding mammals of certain species referred to by that regulation or not covered by it - Holding permitted in other Member States)

(2008/C 209/15)

Language of the case: Dutch

Referring court

Raad van State van België

Parties to the main proceedings

Applicants: Nationale Raad van Dierenkwekers en Liefhebbers VZW, Andibel VZW

Defendant: Belgische Staat

Re:

Reference for a preliminary ruling — Raad van State van België (Belgium) — Interpretation of Article 30 EC and of 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 1996 L 61, p. 1) — National legislation providing a list of species which may be held in the Member State concerned, whose effect is to rule out the holding of the species referred to in Annexes B, C or D to the regulation and of those not covered by the regulation — Holding authorised in other Member States whose legislation complies with the regulation

Operative part of the judgment

Articles 28 EC and 30 EC, read separately or in conjunction with Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein, do not preclude national legislation, such as that at issue in the main proceedings, under which a prohibition on importing, holding or trading in mammals belonging to species other than those expressly referred to in that legislation applies to species of mammals which are not included in Annex A to that regulation, if the protection of or compliance with the interests and requirements referred to in paragraphs 27 to 29 of this judgment cannot be secured just as effectively by measures which obstruct intra-Community trade to a lesser extent.

It is for the national court to determine:

— whether the drawing up of the national list of species of mammals which may be held and subsequent amendments to that list are based on objective and non-discriminatory criteria;

— whether a procedure enabling interested parties to have species of mammals included in that list is provided for, readily accessible and can be completed within a reasonable time, and whether, where there is a refusal to include a species, it being obligatory to state the reasons for that refusal, that refusal decision is open to challenge before the courts;

— whether applications to obtain the inclusion of a species of mammal in that list or to obtain individual derogations to hold specimens of species not included in that list may be refused by the competent administrative authorities only if the holding of specimens of the species concerned poses a genuine risk to the protection of the abovementioned interests and requirements; and

— whether conditions for the holding of specimens of mammals not referred to in that list, such as those set out in Article 3bis(2)(3)(b) and (6) of the Law of 14 August 1986 concerning the protection and welfare of animals, as amended by the Law of 4 May 1995, are objectively justified and do not go beyond what is necessary to achieve the objective pursued by the national legislation as a whole.

(1) OJ C 155, 7.7.2007.