Proposal for a COUNCIL DECISION on the submission by the European Union of an amendment of Appendix III to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)
Date: 2012-02-13
Institutions: European Commission
Subjects: Atlantic Ocean, international convention, international trade, marine life, protected species, protection of animal life

EUROPEAN COMMISSION 

Brussels, 13.2.2012  
COM(2012) 44 final 

2012/0020 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the submission by the European Union of an amendment of Appendix III to the 
Convention on International Trade in Endangered Species of Wild Fauna and Flora 
(CITES) 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Porbeagle (Lamna nasus) is distributed throughout the North Atlantic Ocean and in a broad 
circumglobal  band  in  the  Southern  hemisphere.  Lamna  nasus  is  an  active,  warm-blooded, 
relatively  slow  growing  and  late  maturing,  long-lived  species,  which  bears  only  small 
numbers of young. It falls into FAO’s lowest productivity category of most vulnerable aquatic 
species. Atlantic stock assessments describe marked historic and recent declines. Exploitation 
of stocks in other oceans of the Southern Hemisphere is largely unmanaged and unlikely to be 
sustainable.  The  species  is  particularly  vulnerable  to  overfishing.  It  is  very  vulnerable  to 
fishing  pressure  due  to  its  low  productivity.  It  has  been  experiencing  steep  decline  in  the 
North Atlantic over the last decades, especially in the North East Atlantic, which led the EU 
to  prohibit  fishing  for  this  species.  This  prohibition  applies  to  EU  vessels  as  well  as  to 
foreign-flagged vessels carrying out their activities in EU waters. Fishing for porbeagle is also 
prohibited  in  the  North  East  Atlantic  Ocean  through  a  decision  by  the  North  East  Atlantic 
Fisheries  Commission  (NEAFC).  Fishing  continues  to  occur  in  the  North  West  Atlantic  as 
well as in the Southern Hemisphere. Apart from NEAFC, there are currently no or very few 
measures  adopted  within  Regional  Fisheries  Management  Organisations  (RFMOs)  on  the 
management and conservation of porbeagle, and there is limited information on the domestic 
legislation in place in other range States. It is also believed that a large number of catches for 
porbeagle remains unreported.  

Against  this  background,  the  EU  proposed  in  2007  and  2010  that  porbeagle  be  included  in 
Appendix  II  of  the  CITES  Convention.  Those  proposals  were  endorsed  by  a  majority  of 
CITES Parties but did not reach the 2/3 threshold required for their adoption. A proposal was 
also  made  by  the  EU  to  prohibit  fishing  within  the  International  Commission  for  the 
Conservation of Atlantic Tunas (ICCAT) in 2009 and 2010 but was rejected.  

Available data on the extent of international trade in porbeagle and its impact on the status of 
the  species  are  scarce.  There  is  indeed  currently  no  internationally-agreed  specific  data  for 
porbeagle specimens, which would allow quantifying the volume of international trade in that 
species.  There  are  however  clear  indications  that  porbeagle  parts  or  derivatives  enter 
international trade and that there is an important international market for products like meat or 
fins.  The  EU  is  thought  to  be  one  of  the  main  markets  for  porbeagle  specimens  and  has 
therefore a key responsibility in ensuring that such trade is sustainable.  

Data  on  international  trade  in  porbeagle  are  necessary  to  assess  the  impact  of  international 
trade  on  the  conservation  of  the  species.  Gathering  data  on  international  trade  requires 
international  cooperation.  The  best  way  to  ensure  such  cooperation  is  for  the  EU  Member 
States  to  include  the  species  in  CITES  Appendix  III.  This  is  also  fully  in  line  with  the 
European Community Plan of Action for sharks adopted by the Commission in 2009. 

According  to  Article  XVI  of  the  Convention  any  Party  may  at  any  time  submit  to  the 
Secretariat  a  list  of  species  for  inclusion  in  Appendix  III.  An  amendment  to  Appendix  III 
takes effect automatically 90 days after the submission is communicated to the Parties by the 
Secretariat.  

The effect of the inclusion of a species in Appendix III is that any export of porbeagle from 
the EU would have to be accompanied by an export permit attesting the legality of the catch. 

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Other types of trade (export into the EU, or trade between non-EU Parties) would require that 
a certificate of origin be produced by the exporting country. 

An  Appendix  III  listing  would  provide  all  CITES  Parties  with  (as  a  minimum)  data  on  the 
origin  and  quantity  of  the  specimens  traded;  this  will  improve  the  knowledge  base  on  the 
factors  affecting  porbeagle  conservation  in  view  of  any  possible  conservation  and/or  trade 
measures that States or international organisations might want to take in the future.  

An  Appendix  III  listing  would  make  sure  that  CITES  Parties  pay  special  attention  to  the 
conditions  under  which  porbeagle  specimens  are  harvested  and  traded  and  might  foster  the 
adoption of conservation measures, where they are not yet in place, to ensure its sustainable 
exploitation.  

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

The proposal to include porbeagle into CITES Appendix III has been discussed at numerous 
occasions  with  the  EU  Member  States  at  meetings  of  the  EU  wildlife  trade  Committee  on 
11 June  2010,  15  September  2010,  6  December  2010,  22  March  2011  and  26  July  2011. 
Broad support was expressed at this Committee in favour of the inclusion of porbeagle into 
CITES Appendix III.  

CITES Parties were also informed about the possible intention by the EU to include porbeagle 
into CITES Appendix III through a letter sent on 27 May 2011. Apart from Japan and China 
(which contest that marine species be dealt with in the CITES framework), the observations 
transmitted  to  the  European  Commission  were  rather  supportive  (especially  from  the  USA, 
New  Zealand,  Turkey,  Croatia,  Montenegro,  while  Australia  indicated  that  this  inclusion 
could  jeopardise  the  chance  of  success  of  a  future  proposal  for  inclusion  into  CITES 
Appendix II). 

The  consequences  of  the  inclusion  would  be  limited  in  terms  of  socio-economic  and 
administrative costs: it would require that the EU Member States exporting porbeagle provide 
an export permit attesting that they have been harvested legally. Given that porbeagle fishing 
is  prohibited  in  the  vast  majority  of  the  EU  waters,  the  volume  concerned  is  likely  to  be 
limited. Other countries trading porbeagle would have to issue a certificate of origin.  

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

The CITES Convention is implemented within the EU through Council Regulation (EC) No 
338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating 
trade therein1. The inclusion of porbeagle into CITES Appendix III will result in the inclusion 
of the species into Annex C of Council Regulation (EC) No 338/97, which shall apply as soon 
as the inclusion in Appendix III to the Convention takes effect. As this will impact both the 
EU  environmental  and  trade  policies,  the  substantive  legal  basis  for  the  Council  decision 
should be Article 192, paragraph 1, and Article 207 of the Treaty on the Functioning of the 
European  Union.  The  procedural  legal  basis  should  be  Article  218,  paragraph  9,  as  this 

1 

OJ L 61, 3.3.1997, p. 1 

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Decision  relates  to  the  establishment  of  an  EU  position  in  view  of  the  modification  of  an 
Annex of the CITES Convention which have legal effects.  

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2012/0020 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the submission by the European Union of an amendment of Appendix III to the 
Convention on International Trade in Endangered Species of Wild Fauna and Flora 
(CITES) 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 192, paragraph 1 and Article 207, in conjunction with Article 218, paragraph 9, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The  Convention  on  International  Trade  in  Endangered  Species  of  Wild  Fauna  and 
Flora  (CITES)  is  implemented  in  the  European  Union  (hereinafter:  EU)  by  Council 
Regulation (EC) No 338/97 of 9 December 19962. 

The  species  Lamna  nasus  is  very  vulnerable  to  fishing  pressure  due  to  its  low 
productivity. It has been experiencing steep decline in the North Atlantic over the last 
decades, especially in the North East Atlantic, which led the Union to prohibit fishing 
for this species. This prohibition applies to Union vessels as well as to foreign-flagged 
vessels  carrying  out  their  activities  in  Union  waters.  Exploitation  of  stocks  in  other 
oceans  of  the  Southern  Hemisphere  is  largely  unmanaged  and  unlikely  to  be 
sustainable.  

As  the  Union  considered  that  the  species  may  become  threatened  globally  with 
extinction  unless  international  trade  is  subject  to  strict  regulation  in  order  to  avoid 
utilisation  incompatible  with  its  survival,  it  proposed  its  inclusion  into  CITES 
Appendix II at CITES CoP14 (2007) and CoP15 (2010). Those proposals did not reach 
the  2/3  thresholds  of  the  Parties  required  under  the  CITES  Convention  for  their 
adoption. As there is no evidence of a recovery of the species, and in the absence of 
international regime designed to ensure its management and conservation in all its area 
of repartition, further action by the Union is needed to protect the species.  

It  is  believed  that  international  trade  has  been  playing  a  considerable  role  in  driving 
the  overexploitation  of  porbeagle.  There  are  currently  no  internationally-agreed 
specific  data  on  trade  in  porbeagle  specimens  and  gathering  such  trade  data  is 
necessary to assess the impact of international trade on the conservation of the species. 
With a view to fostering international cooperation for the control of trade in specimens 

2 

OJ L 61, 3.3.1997, p. 1. 

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of the Lamna nasus species and a better protection of the species, it should be included 
in Appendix III to the CITES Convention by all Member States. 

(5) 

(6) 

(7) 

(8) 

According to  Article  XVI of  the CITES Convention, an amendment to Appendix III 
takes effect automatically 90 days after the submission is communicated to the Parties 
by  the  Secretariat.  This  amendment  to  the  Appendices  of  the  Convention  will  affect 
the  Union  legislation  concerned,  as  any  export  of  porbeagle  from  the  Union  would 
have to be accompanied by an export permit attesting the legality of the catch. Other 
types  of  trade  (export  into  the  Union,  or  trade  between  non-Union  Parties)  would 
require that a certificate of origin be produced by the exporting country. 

As  the  so-called  "Gaborone"  amendment  to  the  CITES  Convention  has  not  entered 
into force, the Union is not yet a party to the Convention.  

In such circumstances a Union decision to include Lamna nasus in Appendix III to the 
CITES  Convention  should  be  expressed  by  the  Member  States  acting  jointly  in  the 
interest  of  the  Union  in  a  manner  consistent  with  the  requirement  of  unity  in  the 
external representation of the Union.  

The  joint  submission  for  inclusion  of  Lamna  nasus  in  Appendix  III  to  the  CITES 
Convention  should  therefore  be  sent  to  the  CITES  Secretariat  by  the  Member  State 
holding  the  Presidency  of  the  Council  of  the  European  Union  acting  as  a 
representative of the Member States.  

HAS ADOPTED THIS DECISION:  

Article 1 

The Member States, acting in the interest of the European Union, shall jointly submit to the 
CITES Secretariat a request to include in Appendix III of the CITES Convention the species 
Lamna  nasus.  The  joint  submission  shall  be  sent  to  the  CITES  Secretariat  by  the  Member 
State holding the Presidency of the Council of the European Union, as outlined in the Annex 
to this Decision. 

Article 2 

This Decision is addressed to the Member States. 

Done at Brussels,  

For the Council 
The President 

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ANNEX  

Submission by [the Member State holding the Presidency of the Council of the 
European Union] on behalf of the EU Member States to the CITES Secretariat in view 
of the inclusion of Lamna nasus into Appendix III of the CITES Convention. 

In  accordance  with  Article  XVI(1)  of  the  Convention,  and  after  consultation  with  other 
interested  CITES  Parties,  [the  Member  State  holding  the  Presidency  of  the  Council  of  the 
European Union] submits the inclusion of Lamna nasus into Appendix III of the Convention.  

The Secretariat is therefore requested to include in Appendix III of the CITES Convention for 
the 27 EU Member States (Belgium, Bulgaria, Czech Republic, Denmark, Germany, Estonia, 
Ireland,  Greece,  Spain,  France,  Italy,  Cyprus,  Latvia,  Lithuania,  Luxembourg,  Hungary, 
Malta,  Netherlands,  Austria,  Poland,  Portugal,  Romania,  Slovenia,  Slovakia,  Finland, 
Sweden, United Kingdom) the species indicated below: 

FAUNA  

  Chondrichthyes (Subclass: Elasmobranchii)  

  Lamniformes  

  Lamnidae  

  Lamna nasus (Bonnaterre, 1788) 

Figure 1. Porbeagle Lamna nasus 
(Source: FAO Species Identification Sheet) 

Please find enclosed in Annex 1 an overview of the measures taken by the European Union to 
implement the recommendations contained in Resolution Conf. 9.25 (Rev. CoP15). 

Yours sincerely, 

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Annex 1 

Measures  taken  by  European  Union  to  implement  the  recommendations 
contained in Resolution Conf. 9.25 (Rev. CoP15) 

– 

EU domestic regulations applying to porbeagle management, conservation and 
trade 

The  EU  domestic  regulations  to  prevent  or  restrict  exploitation  of  porbeagle  and  to  control 
trade for the conservation of this species are as follows: 

• 

• 

• 

Council  Regulation  (EU)  No  57/2011  of  18  January  2011  prohibits  fishing  for 
porbeagle3. This applies to EU vessels as well as to foreign-flagged vessels carrying 
out their activities in EU waters; 

Council  Regulation  (EC)  No  1224/2009  of  20  November  2009  sets  out  the 
measures for control, enforcement and sanction against infringements to the rules of 
the  EU  Common  Fisheries  Policy4.  It  applies  in  case  to  porbeagle  as  for  all  other 
species subject to the EU Common fisheries policy; 

Council Regulation (EC) No 1005/2008 of 29 September 20085 sets out the rules 
applying to imports of fishing products into the EU. 

In  addition,  the  North  East  Atlantic  Fisheries  Commission  (NEAFC)  agreed  at  its  annual 
meeting in November 2010 to ban all directed fisheries for porbeagle in 2011 in its regulatory 
area.  

European Union regulations are directly applicable in all the Member States of the European 
Union. 

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see attached link to access the Regulation 
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:024:0001:0125:EN:PDF 
porbeagle is covered by Article 5(1), in conjunction with Annex IA, page 29, and Article 
8(1)(e)). 
see attached link to access the Regulation 
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:343:0001:0050:EN:PDF 
see attached link to access the Regulation http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:286:0001:0032:EN:PDF 

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