Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the thirty-seventh meeting of the Standing Committee of the Convention on the conservation of European wildlife and natural habitats with regard to an amendment to Appendix II thereto
Date: 2017-10-30
Institutions: Directorate-General for Environment, European Commission
Subjects: European convention, European cooperation, biodiversity, lynx, protection of animal life, protection of plant life, standing committee (EU)

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   EUROPEAN COMMISSION  Brussels, 30.10.2017  COM(2017) 628 final 2017/0277 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the thirty-seventh meeting of the Standing Committee of the Convention on the conservation of European wildlife and natural habitats with regard to an amendment to Appendix II thereto  
 
 
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 view to the thirty-seventh annual meeting of the Standing Committee of 
Convention on the conservation of European wildlife and natural habitats, Strasbourg, France, 
5-8 December, 2017, in connection with the envisaged adoption of a decision concerning an 
amendment of Appendix II to the Convention. 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Convention on the conservation of European wildlife and natural habitats 

The  1979  Convention  on  the  conservation  of  European  wildlife  and  natural  habitats  (Bern 
Convention)  ("the  Agreement")  aims  to  conserve  European  wild  flora  and  fauna  and  their 
natural  habitats,  especially  those  whose  conservation  requires  the  co-operation  of  several 
States. It is an intergovernmental treaty, concluded under the aegis of the Council of Europe. 
The  Agreement  entered  into  force  on  1  June,  1982.  The  European  Community  is  a 
Contracting  Party  to  this  Agreement  since  1  September,  19821.  At  present,  there  are  51 
Contracting Parties to the Agreement, including all EU Member States. 

2.2. 

The Standing Committee 

The  Standing  Committee  is  the  decision-making  organ  of  the  Convention  having  powers  to 
assess the conservation status of species and, subsequently, to review the listing of them in the 
Appendices  to  the  Convention.  Its  functions  are  enumerated  in  Articles  13-15  of  the 
Agreement.  It  meets  at  least  every  two  years  and  whenever  a  majority  of  the  Contracting 
Parties so request. It has become customary for the Standing Committee to meet every year.   

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 Standing Committee 

On 5-8 December, 2017, the thirty-seventh annual meeting of the Standing Committee of the 
Agreement in Strasbourg, France, is to adopt a decision regarding an amendment of Appendix 
II to the Agreement (‘the envisaged act’). 

In  accordance  with  Article  17  of  the  Agreement,  an  amendment  to  the  Appendices  shall  be 
adopted  by two-thirds  majority  of  the  Contracting  parties. It  enters  into  force  for all  Parties 
three month after the adoption by the Standing Committee unless one-third of the Contracting 
parties  have  notified  objections,  except  for  those  Parties  which  make  an  objection 
(reservation) during the Standing Committee meeting. 

1 

COUNCIL DECISION 82/72/EEC of 3 December 1981 concerning the conclusion of the Convention 
on the conservation of European wildlife and natural habitats, OJ L 38, 10.2.1982, p. 1. 

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The purpose of the envisaged act is to amend Appendix II to the Agreement, as provided for 
in Article 17 of the Agreement. 

The envisaged act shall become binding on the Contracting parties in accordance with Article 
6  of  the  Agreement,  which  provides  that  each  Contracting  Party  shall  take  appropriate  and 
necessary legislative and administrative measures to ensure the special protection of the wild 
fauna species specified in Appendix II. 

3. 

POSITION TO BE ADOPTED ON BEHALF OF THE UNION 

The Standing Committee is a body set up by the Agreement. The thirty-seventh  meeting of 
the Standing Committee to the Agreement will take place in Strasbourg, France, from 5 to 8 
December, 2017. 

The Republic of Albania has submitted a proposal to amend Appendix II of the Agreement to 
include the Balkan lynx, Lynx lynx spp. balcanicus, which is a subspecies of the Eurasian lynx 
Lynx lynx, already listed in Appendix III to the Agreement (protected wild fauna species). 

The  Union  should  support  the  proposal  because  it  is  science-based  and  in  line  with  the 
Union's commitment to international cooperation for the protection of biodiversity. 

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 thirty-seventh meeting of the 
Standing Committee with regard to the proposal for amendment. 

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

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 

2 

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

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4.1.2.  Application to the present case 

The  Standing  Committee  is  a  body  set  up  by  the  Agreement.  The  thirty-seventh  annual 
meeting of the Standing Committee to the Convention will take place in Strasbourg (France) 
from 5 to 8 December, 2017. 

The act which the Standing Committee is called upon to adopt constitutes an act having legal 
effects. The envisaged act will be binding under international law in accordance with Article 6 
of the Convention to ensure the special protection of the wild fauna species listed in Appendix 
II.  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). 

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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2017/0277 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the thirty-seventh 
meeting of the Standing Committee of the Convention on the conservation of European 
wildlife and natural habitats with regard to an amendment to Appendix II thereto 

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  European  wildlife  and  natural  habitats  (Bern 
Convention)  ('the  Agreement')  was  concluded  by  the  Union  by  Council  Decision 
82/72/EEC3 and entered into force on 1 June 1982. This Agreement aims to conserve 
European  wild  flora  and  fauna  and  their  natural  habitats,  especially  those  whose 
conservation  requires  the  co-operation  of  several  States.  It  is  an  intergovernmental 
treaty, concluded under the aegis of the Council of Europe. 

Pursuant  to  Article  17  of  the  Agreement,  the  Standing  Committee  may  adopt  a 
decision to amend the appendices to the Agreement. 

The Standing Committee, during its thirty-seventh meeting on 5 to 8 December 2017, 
is to adopt a decision on amending Appendix II to the Agreement. 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
Standing Committee, as the decision will be binding on the Union. 

The  Union  should  support  the  proposal  to  add  the  Balkan  lynx,  Lynx  lynx  spp. 
balcanicus to Appendix II to the Agreement, a subspecies of the Eurasian lynx, Lynx 
lynx already in Appendix III to the Agreement, because it is 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 of preventing by 2020 the extinction 
of  known  threatened  species  and  improving  and  sustaining  their  conservation  status, 
particularly of those most in decline. 

3 

OJ L 38, 10.2.1982, p. 1. 

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(6) 

The Eurasian Lynx, Lynx lynx is already listed in Annex II and Annex IV to Council 
Directive  92/43/19924,  hence  adding  the  subspecies  Balkan  lynx  Lynx  lynx  spp. 
balcanicus to Appendix II to the Agreement would not require any change in  Union 
law, 

HAS ADOPTED THIS DECISION: 

Article 1 

The position to be taken on the Union's behalf in the thirty-seventh meeting of the Standing 
Committee  of  the  Convention  on  the  conservation  European  wildlife  and  natural  habitats, 
shall be to support the addition of Lynx lynx spp. balcanicus to Appendix II thereto. 

Article 2 

This Decision is addressed to the Commission. 

Done at Brussels, 

For the Council 
The President 

4 

Council Directive 92/43/1992 of 21 May 1992 on the conservation of natural habitats and of wild fauna 
and flora (OJ L 206, 22.7.1992, p. 7). 

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