Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the seventh Meeting of the Parties of the Agreement on the Conservation of African-Eurasian Migratory Waterbirds with regard to certain amendments to Annex 3 to the Agreement
Date: 2018-10-30
Institutions: Directorate-General for Environment, European Commission
Subjects: Africa, Canada, Central Asia, Europe, Greenland, Middle East, agreement (EU), bird, protection of animal life, revision of an agreement

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 30.10.2018  COM(2018) 717 final 2018/0369 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the seventh Meeting of the Parties of the Agreement on the Conservation of African-Eurasian Migratory Waterbirds with regard to certain amendments to Annex 3 to the Agreement   
 
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns the decision establishing the position to be taken on the Union's behalf 
in  the  seventh  meeting  of  the  Parties  of  the  Agreement  on  the  Conservation  of  African-
Eurasian Migratory Waterbirds (AEWA) in connection with the envisaged adoption of certain 
amendments to its Annex 3. 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Agreement on the Conservation of African-Eurasian Migratory Waterbirds 

The  Agreement  on  the  Conservation  of  African-Eurasian  Migratory  Waterbirds  (‘the 
Agreement’) aims to conserve migratory waterbirds and their habitats across Africa, Europe, 
the  Middle  East,  Central  Asia,  Greenland  and  the  Canadian  Archipelago.  The  Agreement 
entered into force on 1 November 1999. 

Developed  under  the  framework  of  the  Convention  on  Migratory  Species  (CMS)  and 
administered  by  the  United  Nations  Environment  Programme  (UNEP),  AEWA  brings 
together  countries  and  the  wider  international  conservation  community  in  an  effort  to 
establish coordinated conservation and management of migratory waterbirds throughout their 
entire migratory range. 
The  European  Union  is  a  Contracting  Party  to  this  Agreement  since  1  October  20051.  At 
present,  there  are  seventy-seven  Contracting  Parties,  forty-one  from  Eurasia  (including  the 
EU) and thirty-six from Africa. 
Twenty-five Member States are parties to the Agreement2. 
Directive  2009/147/EC  on  the  conservation  of  wild  birds  (Birds  Directive)3  implements  in 
Union  law  the  commitments  set  out  in  the  Agreement.  The  Birds  Directive  relates  to  the 
conservation  of  all  species  of  naturally  occurring  birds  in  the  wild  state  in  the  European 
territory  of  the  Member  States  to  which  the  Treaty  applies.  It  covers  the  protection, 
management and control of these species and lays down rules for their exploitation. 

2.2. 

The Meeting of the Parties 

The Meeting of the Parties (MOP) is the principal decision-making body for the Agreement. It 
has  powers  to  review  the  Annexes  to  the  Agreement  and  it  meets  every  three  years.  Each 
Party has one vote, but regional economic integration organizations, like the European Union, 
exercise their right to vote with a number of votes equal to the number of their Member States 
which are Parties to the Agreement. Any amendment to an Annex shall be adopted by a two-
thirds majority of the Parties present at the meeting.  

The seventh Meeting of the Parties of the Agreement will take place on 4-8 December 2018, 
in South-Africa. 

1  Council Decision 2006/871/EC of 18 July 2005 on the conclusion on behalf of the European Community of the 

Agreement on the Conservation of African-Eurasian Migratory Waterbirds. OJ L 345, 8.12.2006, p. 24. 

2 
3  OJ 

Three Member States are not Parties to the Agreement: Austria, Malta, and Poland. 
- 
26.01.2010. 

L 20 

of 

p. 

7 

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:020:0007:0025:EN:PDF. 

EN 

1 

http://eur-

  EN 

 
 
 
                                                 
 
2.3. 

The envisaged act of the Meeting of the Parties 

On 4-8 December 2018, during its seventh meeting, the Meeting of the Parties is to adopt the 
Resolution 7.34 regarding amendments to the Annexes to the Agreement in accordance with 
Article X, paragraph 5, of the Agreement (‘the envisaged act’). 

The  purpose  of  the  envisaged  act  is  to  amend  Annex  2  and  Annex  3  (Action  Plan)  to  the 
Agreement.  Annex  2  comprises  the  list  of  migratory  waterbirds  to  which  the  Agreement 
applies.  Annex  3  specifies  actions  which  the  Parties  shall  undertake  in  relation  to  priority 
species. The priority species are listed in Table 1 of Annex 3 according to certain criteria set 
out in Table 1. 

Article II of the Agreement provides: ‘Parties shall take co-ordinated measures to maintain 
migratory waterbird species in a favourable conservation status or to restore them to such a 
status.  To  this  end,  they  shall  apply  within  the  limits  of  their  national  jurisdiction  the 
measures prescribed in Article III, together with the specific actions determined in the Action 
Plan provided for in Article IV, of this Agreement’.  

The  envisaged  act  will  enter  into  force  for  all  Parties  and  become  binding  on  them  on  the 
ninetieth day after the date of its adoption by the Meeting of the Parties, except for Parties that 
have  entered  a  reservation.  During  the  ninety-day  period,  any  Party  may,  by  written 
notification to the Depositary, enter a reservation with respect to an amendment to an Annex.  

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The proposed position to be taken on the European Union’s behalf is to support, at the seventh 
Meeting of the Parties, the envisaged act. 

The proposed amendments to Annex 2 were submitted by the European Union. The proposed 
amendments to Annex 3 were proposed by the European Union and Uganda.   

The proposed amendments to Annexes 2 and 3 by the European Union were submitted further 
to Council decision 10326/185.  

The  proposed  amendment  to  Annex  2  by  the  European  Union  consists  in  adding  the  Shag 
(Phalacrocorax aristotelis) to the list of waterbird species to which the Agreement applies. 

The proposed amendments to Table 1 of Annex 3 by the European Union consist in moving 
all  populations  of  the  Curlew  Sandpiper  (Calidris  ferruginea),  Atlantic  Puffin  (Fratercula 
arctica),  and  Razorbill  (Alca  torda)  to  Column  A  of  Table  1,  in  categories  4,  1b,  and  4, 
respectively,  and 
the  non-European  Union  (Barents  Sea)  population  of 
Phalacrocorax aristotelis aristotelis and the European Union population (East Mediterranean 
– Croatia, Adriatic Sea) of Phalacrocorax aristotelis desmarestii in Column A of Table 1 of 
Annex 3, in categories 2 and 1c, respectively. 

listing 

in 

These  proposed  amendments  will  be  approved  on  behalf  of  the  European  Union  by  the 
Commission,  in  line  with  Article  3(1)  and  3(3)  of  Council  Decision  2006/871/EC  of 
18 July 2005 on the conclusion on behalf of the European Community of the Agreement on 
the Conservation of African-Eurasian Migratory Waterbirds. 

The proposed amendments  to  Table 1 of Annex 3 by Uganda consist  in  removing the word 
“significant”  from  criteria  A3(c)  and  B2(c),  creating  a  new  criterion  A3(e)  and  B2(e)  for 

4 
5 

https://www.unep-aewa.org/en/document/adoption-amendments-aewa-annexes-3  
http://data.consilium.europa.eu/doc/document/ST-10326-2018-INIT/en/pdf 
anymore) 

(but  does  not  work 

EN 

2 

  EN 

 
 
                                                 
“rapid short-term decline”, and  moving several  species from  one column or category to  the 
other as set out in the draft Resolution 7.3. 

Those  amendments  proposed  by  Uganda  should  be  approved  on  behalf  of  the  European 
Union, since they reflect the evolution of the conservation status of the concerned bird species 
populations and will contribute to a higher degree of protection of the species populations that 
are in decline.  In particular,   

(a) 

(b) 

The proposed amendments to Annex 3 to the Agreement submitted by Uganda and 
set  out  in  the  draft  Resolution  7.3  that  are  in  line  with  the  relevant  EU  legislation 
(Birds  Directive)  shall  be  approved  on  behalf  of  the  European  Union  by  the 
Commission, in line with Article 3(1) and 3(3) of Council Decision 2006/871/EC of 
18 July 2005  on  the  conclusion  on  behalf  of  the  European  Community  of  the 
Agreement on the Conservation of African-Eurasian Migratory Waterbirds. 

The proposed amendments to Annex 3 to the Agreement submitted by Uganda and 
set  out  in  the draft Resolution  7.3 concerning the following nine species:  Common 
Eider -  Somateria mollissima, Red-breasted Merganser - Mergus serrator, Common 
Pochard - Aythia ferina, Eurasian Oystercatcher  - Haematopus ostralegus, Northern 
Lapwing  -  Vanellus  vanellus,  Bar-tailed  Godwit  -  Limosa  lapponica,  Black-tailed 
Godwit  -  Limosa  limosa,  Red  Knot  -  Calidris  canutus,  and  Spotted  Redshank  - 
Tringa  erythropus,  which  are  not  in  line  with  the  relevant  EU  legislation  (Birds 
Directive),  shall  be  approved  on  behalf  of  the  European  Union  pursuant  to  article 
218.9 TFUE. 

However, in line with Article 3(4) of Council Decision 2006/871/EC of 18 July 2005 on 
the  conclusion  on  behalf  of  the  European  Community  of  the  Agreement  on  the 
Conservation  of  African-Eurasian  Migratory  Waterbirds,  the  Commission  shall  enter  a 
reservation with regard to the proposed amendments concerning the above nine species, as 
it did  for amendments  with similar effects  at  the previous Meetings of the Parties, since 
they  would  require  an  amendment  to  the  Birds  Directive,  which  is  not  possible  within 
ninety days of the date of their adoption by the Meeting of the Parties. 

In the European Union reservation two groups of species are to be distinguished.  

For  the  populations  of  four  species  –  the  Red-breasted  Merganser,  Common  Pochard, 
Black-tailed Godwit, and Spotted Redshank,  that  are proposed to  be listed in  Categories 
1b  (Common  Pochard)  or  3c  (the  other  three  species)  of  Column  A,  no  more  hunting 
would be allowed under the Agreement although they are huntable species under the Birds 
Directive since they are listed in Annex IIb thereof. Therefore, in line with Article 3(4) of 
Council decision 2006/871/EC of 18 July 2005, the Commission shall enter a reservation 
with  respect  to  those  amendments,  since  it  is  not  possible  to  amend  the  Birds  Directive 
within ninety days of the date of their adoption by the Meeting of the Parties.  

The  populations  of  the  five  other  species  -  the  Common  Eider,  Eurasian  Oystercatcher, 
Northern  Lapwing,  Bar-tailed  Godwit,  and  Red  Knot  -  are  proposed  to  be  listed  in 
Category 4 of Column A of Annex 3 of the Agreement. According to Annex 3, the species 
listed  in  that  Category  may  only  be  hunted  within  the  framework  of  an  international 
species action plan, through which Parties will endeavour to implement the principles of 
adaptive harvest management. Therefore, the European Union reservation with regard to 
them  could  be  lifted  once  an  adaptive  harvest  management  mechanism  under  an 
international body, consistent with the requirements of Article 7 of the Birds Directive, is 
in place. 

EN 

3 

  EN 

 
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 concept 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’6. 

4.1.2.  Application to the present case 

The Meeting of the Parties is a body set up by an agreement, namely the  Agreement on the 
Conservation of African-Eurasian Migratory Waterbirds. 

The  act  which  the  Meeting  of  the  Parties  is  called  upon  to  adopt  constitutes  an  act  having 
legal  effects.  The  envisaged  act  will  be  binding  under  international  law  and  is  capable  of 
decisively influencing the content of European Union legislation, namely, the Birds Directive. 
This  is  because  some  actions,  in  particular  as  regards  hunting,  which  the  Parties  shall 
undertake in relation to priority species listed in Table 1 of Annex 3 of the Agreement are not 
always compatible with what the Birds Directive provides for the same species. Namely, if a 
species listed in Annex II of the Birds Directive becomes no more huntable under AEWA, an 
amendment  of  the  Birds  Directive  would  be  required.Under  Article  3  of  Council  Decision 
2006/871/EC of 18 July 2005 on the conclusion on behalf of the European Community of the 
Agreement on the Conservation of African-Eurasian Migratory Waterbirds, as regards matters 
falling within Community competence, the Commission is authorised to approve, on behalf of 
the  Community,  amendments  to  the  Annexes  to  the  Agreement  adopted  in  accordance  with 
Article X(5)  of  the  Agreement.  However,  this  authorization  is  limited  to  those  amendments 
that are consistent with, and do not entail any modification of, Community legislation on the 
conservation of wild birds and their natural habitats. 

Since  the  proposed  amendments  of  Uganda  to  Table  1  of  Annex  3  of  the  Agreement 
concerning the following nine species: Common Eider - Somateria mollissima, Red-breasted 
Merganser  -  Mergus  serrator,  Common  Pochard  -  Aythia  ferina,  Eurasian  Oystercatcher  - 
Haematopus ostralegus,  Northern  Lapwing  - Vanellus vanellus, Bar-tailed Godwit  - Limosa 
lapponica,  Black-tailed  Godwit  -  Limosa  limosa,  Red  Knot  -  Calidris  canutus,  and  Spotted 
Redshank - Tringa erythropus would require an amendment to the Birds Directive, a Council 
decision is needed to establish the position to be taken on behalf of the  European Union in 
the seventh Meeting of the Parties of the Agreement in that respect7.  

The  envisaged  act  does  not  supplement  or  amend  the  institutional  framework  of  the 
Agreement. 

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

6 

7 

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  
For  amendments  that  would  not  require  an  amendment  to  the  Birds  Directive,  the  Commission  may 
approve them in accordance with Council decision 2006/871/EC of 18 July 2005.   

EN 

4 

  EN 

 
                                                 
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 taken on the 
Union's behalf.  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. 

Therefore, the substantive legal basis of the proposed decision is 192(1) TFEU. 

4.3. 

Conclusion 

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

5. 

PUBLICATION OF THE ENVISAGED ACT 

As  the  envisaged  act  of  the  Agreement  on  the  Conservation  of  African-Eurasian  Migratory 
Waterbirds  will  amend  its  Annexes  2  and  3,  it  is  appropriate  to  publish  it  in  the  Official 
Journal of the European Union after its adoption. 

EN 

5 

  EN 

 
2018/0369 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the seventh Meeting of 
the Parties of the Agreement on the Conservation of African-Eurasian Migratory 
Waterbirds with regard to certain amendments to Annex 3 to the Agreement  

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  Agreement  on  the  Conservation  of  African-Eurasian  Migratory  Waterbirds  (‘the 
Agreement’) entered into force on 1 November 1999 and was approved on behalf of 
the European Community by Council Decision 2006/871/EC8 

Pursuant to Article X, paragraph 5, of the Agreement, the Meeting of the Parties may 
adopt amendments to Annexes of the Agreement.  

The  seventh  Meeting  of  the  Parties  of  the  Agreement,  on  4-8  December  2018,  is 
expected to adopt a Resolution on the adoption of amendments to the Annexes 2 and 3 
of the Agreement.   

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
Meeting of the Parties, as the Resolution will be binding on the Union and capable of 
decisively influencing the content of Union law, namely the Birds Directive. 

The proposed amendments to Annex 3 to the Agreement submitted by Uganda and set 
out in the draft Resolution 7.3 concerning the following nine species: Common Eider - 
Somateria mollissima, Red-breasted Merganser - Mergus serrator, Common Pochard - 
Aythia  ferina,  Eurasian  Oystercatcher  -  Haematopus  ostralegus,  Northern  Lapwing  - 
Vanellus  vanellus,  Bar-tailed  Godwit  -  Limosa  lapponica,  Black-tailed  Godwit  - 
Limosa  limosa,  Red  Knot  -  Calidris  canutus,  and  Spotted  Redshank  -  Tringa 
erythropus,  which  are  not  in  line  with  the  relevant  EU  legislation  (Birds  Directive), 
should  be  approved  on  behalf  of  the  European  Union,  since  they  contribute  to 
achieving a higher degree of protection of these species populations that are in decline. 
However, in line with Article 3(4) of Council Decision 2006/871/EC of 18 July 2005 
on  the  conclusion  on  behalf  of  the  European  Community  of  the  Agreement  on  the 
Conservation of African-Eurasian Migratory Waterbirds, the Commission shall enter a 
reservation  with  regard  to  the  proposed  amendments  concerning  the  above  nine 
species, since they  would require an amendment to the Birds Directive, which is not 
possible within ninety days of the date of their adoption by the Meeting of the Parties. 

8 

OJ L345, 8.12.2006, p. 24 

EN 

6 

  EN 

 
                                                 
HAS ADOPTED THIS DECISION: 

Article 1 

The  position  to  be  taken  on  the  Union's  behalf  in  the  seventh  meeting  of  the  Parties  to  the 
Agreement shall be the following: 

The amendments to Annex 3 to the Agreement submitted by Uganda and set out in the draft 
Resolution  7.3  of  the  Seventh  Meeting  of  the  Parties  to  the  Agreement  concerning  the 
following  nine  species:  Common  Eider  -  Somateria  mollissima,  Red-breasted  Merganser  - 
Mergus  serrator,  Common  Pochard  -  Aythia  ferina,  Eurasian  Oystercatcher  -  Haematopus 
ostralegus,  Northern  Lapwing  -  Vanellus  vanellus,  Bar-tailed  Godwit  -  Limosa  lapponica, 
Black-tailed Godwit - Limosa limosa, Red Knot - Calidris canutus, and Spotted Redshank - 
Tringa  erythropus  will  be  approved  at  the  Seventh  Meeting  of  the  Parties  on  behalf  of  the 
European Union. 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

EN 

7 

  EN