Opinion of Advocate General Stix-Hackl delivered on 6February2001. - Criminal proceedings against Xavier Tridon. - Reference for a preliminary ruling: Tribunal de grande instance de Grenoble - France. - Wild fauna and flora - Endangered species - Application in the Community of the Washington Convention. - Case C-510/99.



European Court reports 2001 Page I-07777



Opinion of the Advocate-General

I - Introductory remarks

1. In this case the Tribunal de Grande Instance de Grenoble (Regional Court, Grenoble) (France) has referred two questions for a preliminary ruling. By them, the national court would essentially like to know whether the Washington Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES), two Community regulations and Articles 30 and 36 of the EC Treaty allow a Member State to take measures prohibiting at any time and in the whole territory of that State any commercial use of specimens of wild species born and bred in captivity.

II - Legal framework

A - International law

2. The Convention on International Trade in Endangered Species of Wild Flora and Fauna (hereinafter CITES) was opened for signature on 3 March 1973. The purpose of that convention is to protect certain endangered species of wild flora and fauna by regulating international trade in them. To achieve its objectives, the Convention imposes a number of restrictions and controls.

3. CITES contains several appendices. Appendix I applies to all species which are threatened with extinction and, consequently, subject to the strictest rules. Appendix II applies, first, to all species which may be threatened with extinction unless trade is subject to strict regulation and, second, to other species which are to be subject to strict regulation.

4. Under Article VII(4) of CITES, specimens of an animal species included in Appendix I which have been bred in captivity for commercial purposes are to be deemed to be specimens of species included in Appendix II. Article XIV(1) provides that the provisions of the Convention are in no way to affect the right of Parties to adopt stricter domestic measures regarding the conditions for trade, taking, possession, or transport of specimens of species included in Appendices I, II and III, or the complete prohibition thereof.

B - Community law

Regulation (EEC) No 3626/82

5. Council Regulation (EEC) No 3626/82 of 3 December 1982 on the implementation in the Community of the Convention on international trade in endangered species of wild fauna and flora, which applied until 31 May 1997, sought to ensure that the commercial policy instruments to be employed under CITES are uniformly applied within the Community.

6. Article 6 contains general prohibitions:

(1) The display to the public for commercial purposes and the sale, keeping for sale, offering for sale or transporting for sale of the specimens referred to in Articles 2(a) and 3(1) shall be prohibited, subject to exemptions which may be granted by the Member States for the following reasons, account being taken of the objectives of the Convention and the requirements of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (5):

....

7. Article 15 states inter alia that:

(1) [i]n respect of the species to which this Regulation applies, Member States may maintain or take stricter measures, provided that they comply with the Treaty, and in particular Article 36 thereof, for one or more of the following purposes:

(a) improvement of conditions of survival of living specimens in recipient countries;

(b) the conservation of native species;

(c) the conservation of a species or a population of a species in the country of origin.

....

8. CITES and Appendices I and II thereto are incorporated in Regulation (EEC) No 3626/82 as Annex A.

Regulation (EC) No 338/97

9. Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein replaced Regulation (EEC) No 3626/82 with effect from 1 June 1997. It was adopted with the objective of improving the protection of species of wild fauna and flora, taking account of scientific knowledge and the structure of trade.

10. Under Article 7 of that regulation, save where Article 8 applies, specimens of species listed in Annex A that have been born and bred in captivity or artificially propagated are to be treated in accordance with the provisions listed in Annex B. Annex A corresponds to Appendix I to CITES and Annex B corresponds to Appendix II to that convention.

11. Article 8 contains provisions relating to the control of commercial activities:

1. The purchase, offer to purchase, acquisition for commercial purposes, display to the public for commercial purposes, use for commercial gain and sale, keeping for sale, offering for sale or transporting for sale of specimens of the species listed in Annex A shall be prohibited.

...

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; or

...

5. The prohibitions referred to in paragraph 1 shall also apply to specimens of the species listed in Annex B except where it can be proved to the satisfaction of the competent authority of the Member State concerned that such specimens were acquired and, if they originated outside the Community, were introduced into it, in accordance with the legislation in force for the conservation of wild fauna and flora.

Regulation (EC) No 939/97

12. Commission Regulation (EC) No 939/97 of 26 May 1997 laying down detailed rules concerning the implementation 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 establishes detailed conditions and criteria for the consideration of permit and certificate applications and for the issue, validity and use of such documents. Specific provisions apply to captive born and bred, or artificially propagated, specimens.

13. Article 32 provides for the following exemptions:

The prohibitions of Article 8(1) of Regulation (EC) No 338/97 and the provision in Article 8(3) thereof, that exemptions therefrom shall be granted by the issuance of a certificate on a case-by-case basis shall not apply to:

(a) live specimens of captive born and bred animals of the species listed in Annex VIII, and hybrids thereof, provided that specimens of annotated species are marked in accordance with Article 36(1) of this Regulation;

(b) live specimens of captive born and bred animals that are marked in accordance with Article 36(1) of this Regulation and accompanied by a certificate referred to in Article 20(3)(e) of this Regulation, issued to the breeder by a competent authority of a Member State;

....

C - National law

14. The provisions of the French Code rural (Countryside Code) on the protection of flora and fauna permit the adoption of measures which are stricter than those expressly provided for in international and Community law. The Code also applies to the species of macaw which are the subject-matter of these proceedings.

15. Article L.211-1 of the Code rural provides as follows:

Where a specific scientific interest or the requirements of preserving the living heritage justify the conservation of species of wild animal or plant, the following shall be prohibited:

1. the destruction or removal of eggs or nests, the mutilation, destruction, capture or removal, intentional disturbance or preservation by taxidermy of animals of those species or, whether they are living or dead, the transport, door-to-door sale, use, keeping, offering for sale, sale or purchase thereof;

2. ...

3. the destruction, spoiling or impairment of the habitats of those animal or plant species;

...

Prohibitions on keeping species made under paragraphs 1 or 2 of this article shall not apply to specimens which are being lawfully kept when the prohibition relating to the species to which they belong enters into force.

16. Article L.211-2 provides:

A decree made after consultation with the Conseil d'État shall determine the conditions under which the following are established:

1. An exhaustive list of the species of wild animal or plant thus protected;

2. the duration of the permanent or temporary prohibitions made to enable the natural populations in question or their habitats to recover and the protection of animal species during periods when, or in circumstances where, they are particularly vulnerable;

3. the part of the national territory, including the maritime public domain and territorial waters, to which such conditions shall apply;

4. the issue of permits for the capture of animals or the removal of specimens of species for scientific purposes;

5. the regulation of seeking, pursuing and approaching, with a view to visual or sound recording, and in particular the photographic pursuit of animals of all species and the zones in which that regulation applies, and of the species protected outside those zones;

6. the rules to be followed by establishments authorised to keep or to rear outside their natural environment specimens of species mentioned in Article L.211-1(1) and (2) for the purposes of conservation and reproduction of those species;

7. a list of the protected sites mentioned in Article L.211-1, the protective measures appropriate for preventing their impairment and the issue of special permits for the removal of fossils for scientific or educational purposes.

17. A number of implementing provisions are contained in the Code rural. Article R.211-1 governs responsibility for drawing up and promulgating the list, provided for in Article L.211-2, of the species of wild animal and plant covered by the prohibitions defined in Article L.211-1. Article R.211-3 provides for the nature of the prohibitions mentioned in Article L.211-1 which are applicable, as well as their duration and the parts of the territory and periods of the year to which they are to apply. Article R.211-5 defines species of wild animal as those which have not been altered by selection on the part of humans.

18. A Joint Decree of the Minister for the Environment and the Minister for Agriculture of 15 May 1986 prohibits at any time and in the whole of the national territory of the French Republic certain activities, which include the transport, door-to-door sale, use, offering for sale, sale or purchase of species of wild birds including several species of macaw which are the subject-matter of these proceedings.

19. The national provisions governing the penalties for failure to comply with the Community regulations are set out for the relevant period in a decree of 1 March 1993. Article 3 of that decree provides in essence that keeping for sale, transport for sale, offering for sale, purchase and use for commercial purposes of specimens listed in Appendix I to CITES require authorisation by the minister responsible for the protection of nature (ministre chargé de la protection de la nature). Article 4, which applies to specimens listed in Appendix II, provides for the relevant authorisation to be granted by the Préfet (Prefect) of a Département. In both cases, no authorisation is required if certain documentation is produced. However, such exemption does not apply to activities which are prohibited under Article L.211-1 of the Code rural.

III - Facts

20. According to the national court, the defendant in the main proceedings, Mr Xavier Tridon, runs a centre for the artificial incubation of parrot eggs in Champagnier, Isère, France. On 1 October 1993, he submitted an application for, first, a certificate of fitness to keep species of wild animal under Article L.213-2 of the Code rural and, second, a licence to open an establishment for breeding parrots.

21. By order of the Minister for the Environment of 16 March 1995, he was issued with a certificate of fitness to breed parrots, except macaws, cockatoos and waxbills.

22. By Order No 96-6815 of the Prefect of Isère of 11 October 1996, Mr Tridon was authorised to open an establishment for breeding species of wild fauna (parrots, except macaws, cockatoos and waxbills), which was not open to the public.

23. A further certificate of fitness to keep parrots (without restriction as to species) and waxbills was issued to him by Order of the Minister for the Environment on 16 October 1995.

IV - Main proceedings and questions referred

24. It was established during the preliminary investigations conducted as a result of a complaint lodged against Mr Tridon on 19 October 1997 by a purchaser of a macaw that between November 1995 and November 1997 Mr Tridon sold commercially specimens of certain species of macaw. These were macaws which fall within the scope of the Ministerial Decree of 15 May 1986 and were born and bred in captivity.

25. In the criminal case against him, Mr Tridon is charged with several offences, in particular the sale of protected species of fauna.

26. The defendant in the main proceedings raises doubts as to whether the Ministerial Decree of 15 May 1986 is compatible with provisions of Community law and CITES.

27. The Tribunal de Grande Instance de Grenoble refers the following questions to the Court for a preliminary ruling:

1. In respect of the period before 1 June 1997, must the provisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), in particular Articles VII and XIV thereof, Regulation (EEC) No 3626/82 of 3 December 1982, in particular Articles 6 and 15 thereof, and Articles 30 and 36 of the EC Treaty be interpreted as allowing a Member State to take or maintain domestic measures prohibiting at any time and in the whole territory of that State any commercial use of captive born and bred specimens of wild species occurring in the wild in all or part of the territory of that State?

2. With effect from 1 June 1997, must the provisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), in particular Articles VII and XIV thereof, Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein, and Articles 30 and 36 of the EC Treaty be interpreted as allowing a Member State to take or maintain domestic measures prohibiting at any time and in the whole territory of that State any commercial use of captive born and bred specimens of wild species occurring in the wild in all or part of the territory of that State?

V - Preliminary remarks

28. Since CITES was not concluded by any of the Communities and none of the Communities is a Party to that Convention, it cannot be regarded as an act of an institution of the Community within the meaning of Article 177 of the EC Treaty (now Article 234 EC). However, it is my view that the Court has jurisdiction in so far as the Convention plays a part in the interpretation of provisions of Community law relevant to these proceedings. The Commission's view that CITES does not contain any rules governing trade in specimens of certain species of fauna and flora within the territory of a Contracting Party is consistent with the above view in so far as the provisions of Community law seek to ensure that the objectives of CITES are achieved.

29. With regard to the provisions of the EC Treaty cited in the questions referred, it must be examined whether the present case has a Community connection at all.

30. The national court is not only seeking the interpretation of provisions of the Treaty; its questions primarily concern the interpretation of regulations. However, the following analysis refers only to the parts of the questions which relate to the Treaty.

31. With regard to the facts of the case, it must be noted that both Mr Tridon and the purchaser of the macaw are resident in the same Member State, that is to say, all the particular elements at issue are confined to a single Member State. The goods which are the subject-matter of the main proceedings also originate in the same Member State. Accordingly, the facts are set in a purely national context. Nevertheless, a national measure may have effects on the movement of goods between Member States even in a situation where all the facts of the specific case before the national court are confined to a single Member State.

32. Moreover, the provisions of the Code rural which are relevant in this case are not confined to birds born and bred within French territory.

33. However, according to the case-law of the Court, the provisions of the Treaty must apply to national rules even if in practice they are not applied to imported goods because they may have effects which hinder, indirectly or potentially, intra-Community trade.

34. Furthermore, it cannot in principle be ruled out that birds which are the subject-matter of proceedings may be imported from another Member State, in which case the French legislation would apply to them.

35. Finally, the procedure provided for in Article 177 of the EC Treaty (now Article 234 EC) is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of Community law which they need in order to decide the disputes before them.

36. It is settled case-law that it is for the national court before which the dispute has been brought to determine in the light of the particular circumstances of the case both the need for a preliminary ruling and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling.

37. Moreover, it is not obvious in the present case that the interpretation of Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC) bears no relevance to the subject-matter of the main proceedings. Furthermore, it does not seem obvious either that such an interpretation is not necessary for the national court.

38. In such circumstances the questions referred must also be considered in the light of Articles 30 and 36 of the EC Treaty.

VI - The first question

39. The two questions should be answered separately according to category of species of fauna, taking as the starting point the classification in CITES, which forms the basis of the annexes to the regulations. Appendix I to CITES, which was incorporated in Regulation (EEC) No 3626/82, corresponds to Annex A to Regulation (EC) No 338/97. Appendix II to CITES, which was incorporated in Regulation (EEC) No 3626/82, corresponds to Annex B to Regulation (EC) No 338/97.

40. Determining to which annex the birds at issue in the main proceedings should be assigned is not a matter covered by the questions and concerns the practical application of the regulations, for which the national court has jurisdiction.

41. As regards the secondary Community legislation, the first question relates to the Community legal situation before 1 June 1997, that is to say, to Regulation (EEC) No 3626/82.

A - Species covered by Appendix I

42. As is correctly pointed out by the French Government, the Commission and the Procureur de la République, Regulation (EEC) No 3626/82 expressly provides for a number of prohibitions in respect of species covered by Appendix I to CITES. Although that regulation provides for a possibility of derogation in respect of specimens bred in captivity, this is merely a discretionary power conferred on the Member States. If the Member States do not make use of that power, the prohibition remains in force.

B - Species covered by Appendix II

43. The Procureur de la République takes the view that Regulation (EEC) No 3626/82 is concerned with the harmonisation and strengthening of the protection afforded to certain species of fauna and flora. Thus, under both regulations Member States are allowed to take more effective protective measures. The granting of this power takes precedence over the derogation providing for relaxations in respect of specimens born and bred in captivity. Moreover, Articles 30 and 36 of the EC Treaty do not preclude a national measure prohibiting trade in specimens born and bred in captivity provided that it is justified on grounds of environmental protection. Furthermore, relaxations in the regulation of trade would open the door to abuse because of the difficulty in monitoring all transactions involving such specimens.

44. Several parties have commented on the Court's judgment in Vergy in that regard. The French Government and the Procureur de la République take the view that that judgment is not relevant, in particular because it was delivered in relation to a different act, namely Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds. That directive governs only wild species, and not the specimens born and bred in captivity which are the subject-matter of these proceedings. Mr Tridon and the Commission have also pointed out that the directive examined in Vergy applies only to wild species.

45. In addition, the French Government has submitted that one of the species sold by Mr Tridon has been protected for some years already and that it is not, as in Vergy, a species which has been a subject of commercial transactions over a long period.

46. The judgment in Vergy in fact concerned a specimen of a non-protected species and the abovementioned directive governs only species of wild bird. In contrast, the regulations at issue in this case apply specifically to captive born and bred specimens of protected species.

Against that background, no further consideration need therefore be given here to the judgment in Vergy.

47. Mr Tridon is of the opinion that the comprehensive national prohibition of trade and transport is contrary to the principle of free movement of goods. As regards the conditions concerning the treatment of specimens born and bred in captivity, Mr Tridon refers to the detailed provisions of Commission Regulation (EC) No 939/97, and in particular Articles 24, 34 and 36 thereof.

48. As regards the view put forward by Mr Tridon, which is essentially based on the mechanism established by Commission Regulation (EC) No 939/97, it should first be noted that that regulation did not come into force until 1 June 1997, that is to say, only after the expiry of the period of validity of Regulation (EEC) No 3626/82.

49. Several parties have rightly referred to Article 15 of Regulation (EEC) No 3626/82. Under that provision, Member States are expressly permitted to maintain or take stricter measures. However, they are restricted to doing so for specific purposes which are exhaustively listed. In addition, that provision expressly requires Member States to comply with the Treaty, and in particular Article 36 thereof. Finally, Member States must immediately inform the Commission of such measures.

50. First it should be examined whether the French legislation and regulations pursue one or more of the purposes mentioned in Article 15 of Regulation (EEC) No 3626/82, such as the improvement of conditions of survival of living specimens or the conservation of native species or of species in the country of origin. In my view, it is clear from the substance and purpose alone of the Code rural and the ministerial decrees that they pursue the purposes set out in Article 15 of the regulation.

51. As to whether the French legislation and regulations comply with the Treaty, this point must be considered in the light of Articles 30 and 36 of the EC Treaty. In this respect the French provisions must fulfil two requirements: there must be justification for the measures taken and such measures must be proportionate.

52. It should first be pointed out that Article 36 of the EC Treaty permits Member States to adopt or maintain measures where they are justified on specific grounds which are exhaustively listed. Such grounds also include the purpose pursued in this case, which is the protection of the health and life of animals. There is therefore surely no need to rely on the ground of protection of the environment, which, moreover, could be taken into consideration only in the context of Article 30 of the EC Treaty.

53. Second, the measures taken by France are lawful only if they are proportionate to the objective pursued, that objective cannot be achieved by measures which are less restrictive of intra-Community trade or, given the risks involved, the measures taken are more effective than less restrictive measures.

The suitability and necessity of the French provisions as well as their reasonableness should therefore be examined as part of that assessment of proportionality.

54. It should first be pointed out that the question relates to the strictest rules possible, namely the prohibition of commercial use, with no temporal or geographical limitation.

55. In my view it is obvious that such a comprehensive prohibition is at least suitable to promote the achievement of the pursued objective of protecting the health and life of animals.

56. As regards the necessity of the measure, the French Government essentially puts forward the following arguments: it is necessary to bring species living in captivity within the scope of protection because rearing for commercial purposes could have considerable negative effects on the conservation of the species concerned. Permitting rearing in captivity would result in a real market for specimens of the species concerned. In view of the high level of prices involved, there would be a great temptation to take such specimens from the natural environment because rearing in captivity is more difficult. Furthermore, the French Government considers that the genetic heritage of specimens bred in captivity is less diversified. There is therefore the risk of genetic defects. Genetic uniformity is damaging to the local fauna, in particular if specimens bred in captivity get into the natural environment. Even artificial incubation offers no effective solution to the genetic problem. Moreover, there would also be a danger of creating competition in the wild between the natural population and the population originating in captivity. All in all, the diversity of species would be threatened as a result. Since the possibilities of acquiring specimens protected by CITES are very limited, there would also be an increase in the demand for specimens taken from the wild.

Finally, the French Government points out that effective controls are not feasible and that there are, in any case, many ways of circumventing the law. Thus, in particular, it is almost impossible to monitor exports from Guyane on account of the topographical conditions.

57. The Commission, on the other hand, considers essentially that it does not have sufficient information at its disposal to justify an absolute prohibition on trade. It proposes a certification procedure as an alternative measure.

58. In the circumstances of this case, the necessity of the measures taken by France cannot be established unless other factors are known and requires a specific examination, probably based in part on scientific findings. It is for the national court to arrange such an examination, if necessary.

59. It is also for the national court to examine whether, having regard to the specific rules governing its application, the national legislation concerning the prohibition is necessary in order to realise the objective of protecting the health and life of particular species of fauna. However, the national court has to take account of the following aspects in that regard:

60. The severity of the interference entailed by such a prohibition must be weighed against the object of protection, that is to say the health and life of the bird species covered by Appendix II.

61. According to the Court's case-law, the danger of extinction of one species of fauna may even justify prohibiting the keeping of another. No definitive assessment can be made here as to whether, in a comparable way, prohibition of the commercial use of captive born and bred specimens of a particular species of fauna helps to protect wild specimens of that species.

62. Subsequent Community legislation shows that measures other than those taken by France to protect the specimens concerned are undoubtedly also possible.

However, it cannot be inferred from the existence of less restrictive measures alone that the French provisions are disproportionate. The crucial point is, rather, whether there is another equally effective but less restrictive means of realising the objectives of protection pursued. In precise terms, therefore, it must be examined whether the strict measures result in greater effectiveness.

63. Account must also be taken of the fact that the national provisions laying down the prohibition establish a system comprising individual exemptions, granted subject to conditions, and Article L.211-1 of the Code rural and the Ministerial Decree of 1986 each seem to permit prohibitions which are appropriate.

64. Finally, it should be considered whether other measures would be much more costly, if not entirely impossible to implement.

VII - The second question

65. With regard to the secondary legislation, the second question refers to the Community legal situation as from 1 June 1997, that is to say, to Regulation (EC) No 338/97 and Regulation (EC) No 939/97.

A - Species covered by Appendix I

66. As regards the species covered by Appendix I, the French Government takes the view that an absolute prohibition is lawful. However, it refers at the same time to the possibilities of exemption envisaged by Article 32 of Regulation (EC) No 939/97 in respect of captive born and bred specimens.

67. At the hearing, Mr Tridon expressed the view that the provision of Article 8 of Regulation (EC) No 338/97 concerning the application of the prohibition also to captive born and bred specimens of species covered by Appendix I conflicts with Article 7 of that regulation which provides that such specimens are to be treated as specimens of species covered by Appendix II.

68. It should be observed in this regard that, although Article 7(1)(a) of Regulation (EC) No 338/97 provides that such specimens are to be treated as specimens of species covered by Appendix II, it expressly derogates from that rule where Article 8 applies.

69. Article 8(1) of Regulation (EC) No 338/97 lays down a comprehensive prohibition for specimens of species covered by Appendix I. Article 8(3) provides for a number of exemptions from that prohibition, of which (d) concerns captive born and bred specimens. Under that provision, in accordance with the requirements of other Community legislation on the conservation of wild fauna, exemption from the prohibitions referred to in paragraph 1 may be granted where the specimens are captive born and bred.

70. As is apparent from the very wording of that provision, and not only in the version of the language of this case, that exemption is merely a permissive rule. Since it is not specified who is entitled to grant that exemption, all bodies responsible for applying the regulation may in principle be considered as possibilities.

71. The fact that, as the Commission pointed out at the hearing, the exemption provided for in Article 8(3) is a provision of a regulation, and not of a directive, makes no difference. On the contrary, it merely confirms the power of the competent authority of the Member State concerned to apply the exemption (directly).

72. According to the Court's case-law, derogations from general provisions are to be interpreted restrictively. This also applies to Article 8(3) which provides for a derogation from the general prohibition contained in Article 8(1).

73. In addition to the derogating provision of Regulation (EC) No 338/97, there is also a derogation in Article 32 of Commission Regulation (EC) No 939/97, which can be applied to captive born and bred specimens. That provision is, to be precise, a derogation both from the prohibition laid down by Article 8(1) and from the exemption under Article 8(3) of Regulation (EC) No 338/97. If the requirements of Article 32 are met, the prohibition does not apply and there is no requirement to issue a certificate on a case-by-case basis in accordance with Article 8(3). It is therefore an exemption which applies ex lege.

74. Article 32 of Regulation (EC) No 939/97 provides for exemptions in respect of two categories of live animal species. The first category concerns captive born and bred specimens of species listed in Annex VIII to Regulation (EC) No 939/97 and marked in accordance with Article 36 of that regulation.

75. The second category concerns specimens bred in captivity which are marked in accordance with Article 36(1) of Regulation (EC) No 939/97 and accompanied by a certificate referred to in Article 20(3)(e) of that regulation, issued to a breeder by a competent management authority of a Member State. Therefore, if those two requirements are met, the prohibition laid down in Article 8(1) of Regulation (EC) No 338/97 does not apply.

B - Species covered by Appendix II

76. As regards the species covered by Appendix II, it should first be pointed out that the comprehensive prohibition laid down in Article 8(1) applies to specimens of such species pursuant to Article 8(5) of Regulation (EC) No 338/97. As the Commission rightly points out, Article 8(5) of that regulation does, however, introduce an exception where it can be proved to the satisfaction of the competent authority of the Member State concerned that such specimens were acquired and, if they originated outside the Community, were introduced into it, in accordance with the legislation in force for the conservation of wild fauna and flora. In the light of that exception, the Commission considers an absolute prohibition to be unnecessary.

77. Referring to the third recital in the preamble to the regulation, the French Government assumes that the regulation allows more stringent measures to be taken by Member States. As regards specimens covered by Appendix II, the French Government makes no distinction between the old and the new legal situation, and therefore its observations on Appendix II must also be applied to the legal situation established by Regulation (EC) No 338/97.

78. It should first be pointed out that the regulation in question was based on Article 130s of the EC Treaty (now, after amendment, Article 175 EC). Thus, in principle, Article 130t of the EC Treaty (now Article 176 EC) applies. Under that provision, protective measures adopted pursuant to Article 130s of the EC Treaty do not prevent any Member State from maintaining or introducing more stringent protective measures. Those conditions are met here. Reference to the third recital in the preamble to the regulation is relevant only in so far as that recital expresses the intention of the Community legislature to adopt minimum legal requirements. The power conferred in principle on Member States to take more stringent measures arises from primary law itself.

79. Under Article 130t of the EC Treaty, however, that power conferred on Member States applies only on condition that such measures are compatible with the Treaty. Moreover, the version in force since the Treaty of Amsterdam also requires such measures to be notified to the Commission.

80. As regards compatibility with the Treaty, reference may be made to the observations on the first question concerning the species covered by Appendix II.

However, in this regard it must be ensured that the protective measures applicable to specimens of species covered by Appendix II are not more stringent than those applicable to specimens of species covered by Appendix I. This means that, at the very least, the exemptions provided for in the regulations in respect of species covered by Appendix I must also be applied to specimens of the species covered by Appendix II. However, the same is not the case with exemptions the application of which is at the discretion of the Member State.

VIII - Conclusion

81. In the light of the foregoing, I propose that:

(1) The answer to the first question should be that, as regards the species covered by Appendix I, Council Regulation (EEC) No 3626/82 of 3 December 1982 on the implementation in the Community of the Convention on international trade in endangered species of wild fauna and flora is to be construed as meaning that it allowed a Member State to prohibit at any time and in the whole territory of that State any commercial use of captive born and bred specimens of wild species.

As regards species covered by Appendix II, the answer to the first question should be that Regulation No 3626/82 and Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC) are to be construed as meaning they allow a Member State to prohibit at any time and in the whole territory of that State any commercial use of captive born and bred specimens of wild species, provided that such a measure is necessary for effective protection and that such protection cannot be achieved by means of less restrictive measures.

(2) The answer to the second question should be that, as regards species covered by Appendix I, Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein and Commission Regulation (EC) No 939/97 of 26 May 1997 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 are to be construed as meaning that they allow a Member State to prohibit at any time and in the whole territory of that State any commercial use of captive born and bred specimens of wild species.

That does not apply to the following two categories of living specimen:

- captive born and bred specimens of species listed in Appendix VIII to Regulation (EC) No 939/97 and marked in accordance with Article 36 thereof, and

- captive born and bred specimens marked in accordance with Article 36(1) of Regulation (EC) No 939/97 and accompanied by a certificate referred to in Article 20(3)(e) thereof, issued to a breeder by the competent management authority of a Member State.

As regards species covered by Appendix II, the answer to the second question should be that Regulation (EC) No 338/97 and Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC) are to be construed as meaning that they allow a Member State to prohibit at any time and in the whole territory of that State any commercial use of captive born and bred specimens of wild species where such a measure is, first, necessary for effective protection which cannot be achieved by means of less restrictive measures and, second, is not more stringent than the rules applicable to the species covered by Appendix I.