Proposal for a COUNCIL DECISION establishing the position to be adopted, on behalf of the European Union, with regard to the submission of proposals for amendments to the Appendices to the Convention on the Conservation of Migratory Species of Wild Animals (CMS) with a view to the 13th meeting of the Conference of the Parties
Date: 2019-07-05
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, 5.7.2019  COM(2019) 321 final 2019/0148 (NLE)  Proposal for a COUNCIL DECISION establishing the position to be adopted, on behalf of the European Union, with regard to the submission of proposals for amendments to the Appendices to the Convention on the Conservation of Migratory Species of Wild Animals (CMS) with a view to the 13th meeting of the Conference of the Parties  
 
 
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  Convention  on  the  Conservation  of  Migratory  Species  of  Wild  Animals  (CMS)  in 
connection with submitting proposals for decisions of the 13th meeting of the Conference of 
the Parties to amend the appendices of the Convention. 

2. 

2.1. 

CONTEXT OF THE PROPOSAL 

The  Convention  on  the  Conservation  of  Migratory  Species  of  Wild  Animals 
(CMS) 

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 migratory species to be conserved are listed in Appendices I (endangered species) 
and  II  (species to be the subjects  of agreements) to  the Agreement. The  Agreement entered 
into force on 1 November 1983. 
The European Union is a party to the Agreement1. 

2.2. 

The Conference of the Parties 

The Conference of the Parties is the decision-making body of the Agreement with powers to 
assess the conservation status of migratory species and, subsequently, to amend Appendices I 
and  II  to  the  Agreement.  In  accordance  with  Article  XI  of  the  Agreement,  proposals  for 
amendment  may  be  made  by  any  Party,  and  shall  be  adopted  by  a  two-thirds  majority  of 
Parties present and voting.  

The thirteenth meeting of the Conference of the Parties will take place in Gandhinagar (India) 
from 15 to 22 February 2020. The deadline for submitting proposals for amendment has been 
fixed  by  the  Secretariat  of  the  Agreement,  in  line  with  Article  XI  (3),  to  be  19  September 
2019.  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 thirteenth 
meeting of the Conference of the Parties with regard to submitting proposals for amendment. 

Before  the  thirteenth  meeting  of  the  Conference  of  the  Parties,  the  Secretariat  of  the 
Agreement may communicate proposals made by other Parties to amend Appendices I and II 
to the Agreement, which may require a further decision establishing the position to be adopted 
on behalf of the Union with regard to those proposals. 

2.3. 

The envisaged act of the Conference of the Parties  

For  the  thirteenth  meeting  of  the  Conference  of  the  Parties,  it  is  proposed  that  the  Union 
submit proposals to amend Appendix I to the Agreement to increase the protection of one bird 
species (Tetrax tetrax) and to amend Appendix II to the Agreement to increase the protection 
of the same species of bird (Tetrax tetrax) and also of two species of shark (Galeorhinus galeus 
and Sphyrna zygaena), throughout their distribution range, including outside the Union.   

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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If adopted, the envisaged act will become binding on the parties in accordance with Article XI 
of the Agreement, which provides that an amendment to the Appendices enters into force for 
all  Parties  ninety  days  after  the  meeting  of  the  Conference  of  the  Parties  at  which  it  is 
adopted, except for those Parties which make a reservation. 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The Union proposals to amend the appendices are based on the following considerations: (1) 
the inclusion of such species is scientifically sound; (2) such an inclusion is consistent with 
the  EU  legislation;  and  (3)  the  Union  is  committed  to  international  cooperation  for  the 
protection of biodiversity. 
The proposal  is  consistent  with  the Seventh  Environmental Action Programme2  and the EU 
biodiversity  strategy  to  20203,  especially  Target  6:  help  avert  global  biodiversity  loss.  This 
proposal  would  not  require  any  change  in  Union  law,  as  it  concerns  species  which  already 
benefit from appropriate protection under Union law, notably the Birds Directive4 and the EU 
Common Fisheries Policy5.  

The  proposal  does  not  create  any  new  monitoring  or  reporting  requirements.  All 
implementation planning and monitoring would be part of the regular planning and reporting 
activities under the Agreement. Furthermore, there are no budgetary implications. 

An informal exchange of preliminary views with the Member States has taken place through a 
written  consultation  of  the  Member  State  members  of  the  Co-ordination  Group  for 
Biodiversity  and  Nature (CGBN)  and  the  Expert  Group  on  the  Birds  and  the  Habitats 
Directives (NADEG). 

The  position  to  be  taken  on  the  Union’s  behalf  should  therefore  be  to  authorise  the 
Commission to submit the above-mentioned proposals to the Secretariat of the Agreement.  

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 

2 

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4 

5 

Decision No 1386/2013/EU of the European Parliament and of the Council of 20 November 2013 on a 
General Union Environment Action Programme to 2020 ‘Living  well, within the limits of our planet’ 
OJ L 354, 28.12.2013, p. 171. 
COM(2011) 244 final “Our life insurance, our natural capital: an EU biodiversity strategy to 2020". 
Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, OJ L 103, 25.4.1979, 
pg. 1. 
Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on 
the Common Fisheries Policy, OJ L 354, 28.12.2013, p.22 

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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 Conference of the Parties is a body set up by an agreement, namely  the  Convention on 
the Conservation of Migratory Species of Wild Animals (CMS). 

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 XI 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. 

Therefore, the procedural legal basis for the proposed decision 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 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 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. 

6 

Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  

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

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2019/0148 (NLE) 

Proposal for a 

COUNCIL DECISION 

establishing the position to be adopted, on behalf of the European Union, with regard to 
the submission of proposals for amendments to the Appendices to the Convention on the 
Conservation of Migratory Species of Wild Animals (CMS) with a view to the 13th 
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/EEC7  and 
entered into force on 1 November 1983.  

Pursuant  to  Article  XI  of  the  Agreement,  the  Conference  of  the  Parties  can  adopt 
amendments to Appendices I and II to the Agreement. 

The  Conference  of  the  Parties,  during  its  thirteenth  meeting  on  15  to  22  February 
2020,  may  adopt  such  amendments.  The  Secretariat  of  the  Convention  has  informed 
the  Parties  to  the  Convention  that  any  proposals  for  amendment  are  to  be 
communicated, in accordance with Article XI(3) of the Agreement,  by 19 September 
2019. The Union may, as a Party to the Convention, make such proposals. 

It is appropriate to establish the position to be taken on the Union's behalf with regard 
to  the  submission  of  proposals  to  amend  the  Appendices  to  the  Agreement,  as  such 
amendments will be binding on the Union. 

The  inclusion  of  the  species  Tetrax  tetrax  in  Appendix  I  to  the  Agreement  and  the 
species Tetrax tetrax, Galeorhinus galeus and Sphyrna zygaena  in Appendix II would 
be  scientifically  sound  and  in  line  with  Union  legislation  as  well  as  the  Union's 
commitment  to  international  cooperation  for  the  protection  of  biodiversity.  The 
Commission should therefore be authorised to propose amendments to that effect. 

(6) 

The  Commission  should  communicate  those  proposals  to  the  Secretariat  of  the 
Agreement, 

HAS ADOPTED THIS DECISION: 

Article 1 

1.   With  a  view  to  the  thirteenth  meeting  of  the  Conference  of  the  Parties  to  the 
Convention  on  the  Conservation  of  Migratory  Species  of  Wild  Animals  (‘the 

7 

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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Agreement’), the Commission is hereby authorised to submit, on behalf of the Union, 
a proposal for the following amendments: 

(a) 

(b) 

an amendment  to  Appendix  I to  the Agreement to include the species  Tetrax 
tetrax; 

amendments  to  Appendix  II  to  the  Agreement  to  include  the  species  Tetrax 
tetrax, Galeorhinus galeus and Sphyrna zygaena. 

2.  

The  Commission  shall  communicate  the  proposals  referred  to  in  paragraph  1  to  the 
Secretariat of the Convention. 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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