Proposal for a COUNCIL DECISION on the position to be adopted, on behalf of the European Union, with regard to proposals from various parties to the Convention on the conservation of migratory species of wild animals for amendments to the Appendices of the Convention at the twelfth meeting of the Conference of the Parties
Date: 2017-08-28
Institutions: Directorate-General for Environment, European Commission
Subjects: animal life, biodiversity, environmental cooperation, international convention, protected species, protection of animal life, revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 28.8.2017  COM(2017) 455 final 2017/0210 (NLE)   Proposal for a COUNCIL DECISION on the position to be adopted, on behalf of the European Union, with regard to proposals from various parties to the Convention on the conservation of migratory species of wild animals for amendments to the Appendices of the Convention at the twelfth meeting of the Conference of the Parties  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT-MATTER OF THE PROPOSAL 

The present proposal concerns the decision establishing the position to be adopted on behalf 
of  the  Union  in  the  Conference  of  the  Parties  of  the  Convention  on  the  conservation  of 
migratory  species  of  wild  animals  in  connection  with  the  envisaged  adoption  of  a  decision 
concerning amendments of the appendices of the Convention.   

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Convention on the conservation of migratory species of wild animals 

The Convention on the conservation of migratory species of wild animals (‘the Agreement’) 
aims to conserve terrestrial, marine and avian migratory species throughout their range. It is 
an  intergovernmental  treaty,  concluded  under  the  aegis  of  the  United  Nations  Environment 
Programme, concerned with the conservation of wildlife and  habitats on a global scale. The 
Agreement  entered  into  force  on  1  November,  1983.  Currently  there  are  124  Parties  to  the 
Agreement. The European Union is a party to the Agreement since 1 November, 1983.1 All 
Member States are parties to the Agreement.  

2.2. 

The Conference of the Parties 

The  Conference  of  the  Parties  is  the  principal  decision-making  body  of  the  Agreement.  Its 
functions  are  enumerated  in  Article  VII  of  the  Agreement,  including  powers  to  assess  the 
conservation  status  of  migratory  species  and,  subsequently,  to  amend  Appendices  to  the 
Agreement. It meets every three years. Decisions at a meeting of the Conference of the Parties 
require  a  two-thirds  majority  of  the  Parties  present  and  voting,  except  where  otherwise 
provided for by this Agreement.  

The mandate for the Union’s position concerning amendments of the appendices is given by a 
decision of the Council based on a proposal from the Commission. The EU common positions 
concerning other draft decisions and resolutions are agreed in prior meetings of the relevant 
Council working party or at on-the-spot EU coordination meetings. 

2.3. 

The envisaged act of the Conference of the Parties 

On 23-28 October, 2017 during its  twelfth meeting in Manila, the Philippines, the Conference 
of  the  Parties  is  to  adopt  a  decision  regarding  amendments  of  the  appendices  of  the 
Agreement (‘the envisaged act’). 

In accordance with Article XI of the Agreement, proposals for amendment may be made by 
any Party. An amendment to the Appendices enters into force for all Parties ninety days after 

1 

Council Decision 82/461/EEC of 24 June 1982 on the conclusion of the Convention on the conservation 
of migratory species of wild animals, OJ L 210, 24.6.1982, p. 10. 

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the meeting of the Conference of the Parties at which it is adopted, except for those Parties 
which make a reservation. 

The purpose of the envisaged act is to amend Appendix I and Appendix II of the Agreement, 
as  provided  for  in  Article  XI  of  the  Agreement.  Amendments  are  adopted  by  a  two-thirds 
majority of Parties present and voting.   

The envisaged  act shall become binding  on the parties in  accordance with  Article III of the 
Agreement, which provides that Appendix I shall list migratory species which are endangered 
and that Parties that are Range States of the species concerned shall endeavour to take various 
conservation measures and shall prohibit the taking of animals belonging to such species. 

Article  IV  to  the  Agreement  stipulates  that  Appendix  II  shall  list  migratory  species  which 
have an unfavourable conservation status and which require international agreements for their 
conservation and management, as well as those which have a conservation status which would 
significantly  benefit  from  the  international  cooperation  that  could  be  achieved  by  an 
international agreement.   If the circumstances so warrant, a  migratory  species  may  be listed 
both in Appendix I and Appendix II. 

3. 

POSITION TO BE ADOPTED ON BEHALF OF THE UNION 

The  twelfth  meeting  of  the  Conference  of  the  Parties  to  the  Agreement  will  take  place  in 
Manila (the Philippines) from 23 to 28 October 2017. For this meeting, the Union proposed to 
amend Appendix II to the Agreement to add the bird species Lanius excubitor excubitor and 
Lanius minor.  

Other Parties to the Convention have submitted proposals to amend Appendices I and II to the 
Convention  for  the  species  Pan  paniscus,  Pan  troglodytes,  Equus  africanus,    Equus  ferus 
przewalskii,  Lasiurus  cinereus,  Lasiurus  borealis,  Lasiurus  blossevillii,  Lasiurus  ega, 
Panthera  leo,  Panthera  pardus,  Ursus  arctos  isabellinus,  Pusa  caspica,  Gazella  bennettii, 
Giraffa  camelopardalis,  Fregata  andrewsi,  Aquila  nipalensis,  Gyps  bengalensis,  Gyps 
indicus,  Gyps  tenuirostris,  Sarcogyps  calvus,  Gyps  africanus,  Gyps  coprotheres,  Gyps 
rueppelli,  Necrosyrtes  monachus,  Trigonoceps  occipitalis,  Torgos  tracheliotos,  Anous 
minutus  worcesteri,  Emberiza,  sulphurata,  Rhincodon  typus,  Squatina  squatina,  Rhinobatos 
rhinobatos, Carcharhinus obscurus, Prionace glauca and Rhynchobatus australiae. 

The Union should support all proposals because they are science-based and in  line with the 
Union's  commitment  to  international  cooperation  for  the  protection  of  biodiversity.  This 
should include promoting to consider how to make best use of available scientific information 
so  that  both  biological  features  and  fisheries  biological  reference  points  can  be  taken  into 
consideration.   

It is therefore necessary for the Council to take a decision for the purpose of establishing the 
position  to  be  adopted  on  behalf  of  the  Union  with  a  view  to  the  twelfth  meeting  of  the 
Conference of the Parties with regard to proposals for amendment. 

The proposals for amendment will not require a change of existing Union law. 

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4. 

 LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

The notion of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’.2 

4.1.2.  Application to the present case 

The Conference of the Parties is a body set up by an agreement, namely the  Convention on 
the conservation of migratory species of wild animals. The twelfth meeting of the Conference 
of  the  Parties  to  the  Convention  will  take  place  in  Manila  (the  Philippines)  from  23  to  28 
October 2017. For this meeting, the Union proposed to amend Appendix II to the Convention 
to add the bird species Lanius excubitor excubitor and Lanius minor.  

The act which the Conference of the Parties is called upon to adopt constitutes an act having 
legal  effects.  The  envisaged  act  will  be  binding  under  international  law  in  accordance  with 
Article III of the Convention on the conservation of migratory species of wild animals. The 
envisaged act does not supplement or amend the institutional framework of the agreement. 

The procedural legal basis for the proposed decision, therefore, is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the  objective  and  content  of  the  envisaged  act  in  respect  of  which  a  position  is  adopted  on 
behalf of the Union. If the envisaged act pursues two aims or has two components and if one 
of  those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

4.2.2.  Application to the present case 

The main objective and content of the envisaged act relate to environment. 

The substantive legal basis of the proposed decision, therefore, is Article 192(1). 

2 

Case C-399/12 Germany v Council (OIV), ECLI:EU:C:2014:2258, paragraphs 61-64.  

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4.3. 

Conclusion 

The legal basis of the proposed decision should be Article 192(1) in conjunction with Article 
218(9) TFEU. 

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2017/0210 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be adopted, on behalf of the European Union, with regard to proposals 
from various parties to the Convention on the conservation of migratory species of wild 
animals for amendments to the Appendices of the Convention at the twelfth meeting of 
the Conference of the Parties 

THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

The  Convention  on  the  conservation  of  migratory  species  of  wild  animals  (‘the 
Agreement’) was concluded by the Union by Council Decision 82/461/EEC of 24 June 
19823 and entered into force on 1 November 1983;  

Pursuant to Article XI of the Agreement, the  Conference of the Parties may adopt a 
decision to amend the appendices of the Agreement;  

The Conference of the Parties, during its twelfth meeting on 23-28 October 2017, is to 
adopt a decision on amending Appendix I and Appendix II of the Agreement; 

It is appropriate to establish the position to be adopted on behalf of the Union in the 
Conference of the Parties, as the decision will be binding upon the Union; 

The  Union  should  support  all  proposals  because  they  are  science-based,  in  line  with 
the Union's commitment to international cooperation for the protection of biodiversity 
in  accordance  with  Article  5  of  the  UN  Convention  on  Biological  Diversity  and 
decisions  taken  at  the  Conference  of  the  Parties  under  that  Convention,  in  particular 
with the global target agreed at the Tenth meeting: "By 2020 the extinction of known 
threatened  species  has  been  prevented  and  their  conservation  status,  particularly  of 
those most in decline, has been improved and sustained", and will not require a change 
of existing Union law; 

(6) 

The  mammals  Pan  paniscus,  Equus  africanus,  Equus  ferus  przewalski,  Ursus  arctos 
isabellinus  and  Pusa  caspica  do  not  occur  in  the  EU.  Hence  adding  these  species  to 
Appendix I to the Convention would not require any change in Union law;  

3 

OJ L 210, 19.7.1982, p. 10. 

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(7) 

(8) 

(9) 

The mammals Pan troglodytes, Equus africanus, Lasiurus cinereus, Lasiurus borealis, 
Lasiurus  blossevillii,  Lasiurus  ega,    Panthera  leo,  Panthera  pardus,  Gazella  bennettii 
and  Giraffa  camelopardalis  do  not  occur  in  the  EU.  Hence  adding  these  species  to 
Appendix II would not require any change in Union law; 

The  birds  Fregata  andrewsi,  Gyps  bengalensis,  Gyps  indicus,  Gyps  tenuirostris, 
Sacrogyps calvus, Gyps coprotheres, Necrosyrtes monachus, Trigonoceps occipitalis, 
Anous minutus worcesteri and Emberiza sulphurata do not occur in the EU except for 
overseas territories which fall  outside the scope  of the Directive 2009/147/EC of the 
European Parliament and of the Council of 30 November 2009 on the conservation of 
wild birds. Hence adding these species to Appendix I and II to the Convention would 
not require any change in Union law;  

The birds  Aquila nipalensis, Gyps africanus,  Gyps rueppelli  and  Torgos  tracheliotos 
are covered by Directive 2009/147/EC of the European Parliament and of the Council 
of 30 November 2009 on the conservation of wild birds4. Hence adding these species 
to Appendix I and Appendix II of the Convention would not require any change in EU 
law;   

(10)  The  fish  species  Rhincodon  typus,  Squatina  squatina,  Rhinobatos  rhinobatos, 
Carcharinus  obscurus,  Prionace  glauca  and  Rhynchobatus  australiae  fall  under  the 
Common  Fisheries  Policy  which  offers  the  appropriate  instruments  for  the  EU  to 
contribute to managing their protection; 

(11)  Furthermore,  the  fishing  and  retention  of  species  Squatina  squatina  and  Rhinobatos 
rhinobatos  are  prohibited  under  Council  Regulation  2017/1275  and 
their 
Mediterranean populations are strictly protected (retention ban) by GFCM6; 

(12)  Furthermore, the species Rhincodon typus is listed on Appendix II of the  Convention 
on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and 
Annex B of the EU Wildlife Trade Regulation7 and currently regulated by the Indian 
Ocean  Tuna  Commission  (IOTC),  the  Western  and  Central  Pacific  Fisheries 
Commission (WCPFC) and the Inter-American Tropical Tuna Commission (IATTC); 

(13)  The  Union  should  promote  efforts  to  consider  how  to  make  best  use of  all  available 
and  relevant  scientific  information  and  to  improve  the  framework  of  cooperation 
between relevant multilateral and regional instruments through advocating consistency 
and complementarity; 

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OJ L20, 26.1.2010, p. 7. 
Council  Regulation  (EU)  2017/127  of  20  January  2017  fixing  for  2017  the  fishing  opportunities  for 
certain fish stocks and groups of fish stocks, applicable in Union waters and, for Union fishing vessels, 
in certain non-Union waters. 
General Fisheries Commission for the Mediterranean Recommendation GFCM/36/2012/3 on fisheries 
management measures for conservation of sharks and rays in the GFCM area. 
Commission Regulation (EU) No 1320/2014 of 1 December 2014 amending Council Regulation (EC) 
No  338/97  on  the  protection  of  species of  wild  fauna  and  flora  by  regulating  trade  therein  EU,  OJ  L 
361, 17.12.2014, p. 1. 

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(14) 

In this spirit also noting the importance of Ocean Governance objectives in line with 
the Joint Communication on International Ocean Governance8; 

(15)  To  the  extent  that  the  Convention  on  the  conservation  of  migratory  species  of  wild 
animals  falls  both  within  the  competence  of  the  Union  and  the  competence  of  the 
Member States, the Commission and the Member States should cooperate closely for 
the adoption of the amendments to the Appendices of the Convention, aiming for unity 
in the international representation of the Union. 

(16) 

In the Conference of the Parties, the Union is to be represented by the Commission in 
accordance with Article 17(1) TEU. The Member States are to support the position of 
the Union in accordance with Article 4(3) TEU. 

HAS ADOPTED THIS DECISION: 

Article 1 

The position to be adopted, on behalf of the Union, in the twelfth meeting of the Conference 
of the Parties shall be the following: 

(1) 

to support the addition to Appendix I of the following species: 

(a)  Pan paniscus 

(b)  Equus africanus 

(c)  Equus ferus przewalski 

(d)  Ursus arctos isabellinus 

(e)  Pusa caspica 

(f)  Fregata andrewsi 

(g)  Aquila nipalensis 

(h)  Gyps bengalensis 

(i)  Gyps indicus 

(j)  Gyps tenuirostris 

(k)  Sacrogyps calvus 

(l)  Gyps africanus 

8 

Joint communication: International ocean governance agenda for the future of our oceans (JOIN(2016) 
49). 

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(m)  Gyps coprotheres 

(n)  Gyps rueppelli 

(o)  Necrosyrtes monachus 

(p)  Trigonoceps occipitalis 

(q)  Torgos tracheliotos 

(r)  Anous minutus worcesteri 

(s)  Emberiza sulphurata 

(t)  Rhincodon typus 

(u)  Squatina squatina 

(v)  Rhinobatos rhinobatos 

(2) 

to support the addition to Appendix II of the following species: 

(a)  Pan troglodytes 

(b)  Equus africanus 

(c)  Lasiurus cinereus 

(d)  Lasiurus borealis 

(e)  Lasiurus blossevillii 

(f) 

Lasiurus ega 

(g)  Panthera leo 

(h)  Panthera pardus 

(i)  Gazella bennettii 

(j)  Giraffa camelopardalis 

(k)  Aquila nipalensis 

(l)  Gyps bengalensis 

(m)  Gyps indicus 

(n)  Gyps tenuirostris 

(o)  Sacrogyps calvus 

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(p)  Gyps africanus 

(q)  Gyps coprotheres 

(r)  Gyps rueppelli 

(s)  Necrosyrtes monachus 

(t) 

Trigonoceps occipitalis 

(u)  Torgos tracheliotos 

(v)  Anous minutus worcesteri 

(w)  Emberiza sulphurata 

(x)  Lanius excubitor excubitor 

(y)  Lanius minor 

(z)  Rhincodon typus 

(aa)  Squatina squatina 

(bb)  Rhinobatos rhinobatos 

(cc)  Carcharinus obscurus 

(dd)  Prionace glauca 

(ee)  Rhynchobatus australiae 

Article 2 

This Decision is addressed to the Commission and the Member States. 

Done at Brussels, 

For the Council 
The President 

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