Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the thirty-ninth meeting of the Standing Committee of the Convention on the Conservation of European Wildlife and Natural Habitats, with regards to amendments to Appendices II and III to that Convention
Date: 2019-10-25
Institutions: Directorate-General for Environment, European Commission
Subjects: European convention, European cooperation, biodiversity, bird, protection of animal life, protection of plant life, revision of an agreement, standing committee (EU)

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   EUROPEAN COMMISSION  Brussels, 25.10.2019  COM(2019) 494 final 2019/0241 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the thirty-ninth meeting of the Standing Committee of the Convention on the Conservation of European Wildlife and Natural Habitats, with regards to amendments to Appendices II and III to that Convention  
 
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  thirty-ninth  annual  meeting  of  the  Standing  Committee  of  the  Convention  on  the 
conservation  of  European  wildlife  and  natural  habitats,  Strasbourg,  France,  3-6  December 
2019,  in  connection  with  the  envisaged  adoption  by  the  Standing  Committee  of  a  decision 
concerning two amendments of Appendix II and Appendix III to the Convention. 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Convention on the conservation of European wildlife and natural habitats 

The  Convention  on  the  conservation  of  European  wildlife  and  natural  habitats  ("the 
Convention")  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 
Convention entered into force on 1 June 1982. 
The European Union is a Contracting Party to this Convention since 1 September, 19821. At 
present, there are 51 Contracting Parties to the Convention, 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 
Convention.  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. 

In accordance with Article 17 of the Convention, an amendment to the Appendices shall be 
adopted by two-thirds majority of the Contracting Parties.  

2.3. 

The envisaged act of the Standing Committee 

On  3-6  December  2019,  the  thirty-ninth  annual  meeting  of  the  Standing  Committee  of  the 
Convention, in Strasbourg, France, is expected to adopt a decision regarding amendments of 
Appendix II and Appendix III to the Convention (‘the envisaged act’). 

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

In accordance with Article 17 of the Convention, the envisaged act shall enter into force for 
all Parties three months after the adoption by the Standing Committee unless one-third of the 
Contracting  Parties  have  notified  objections.  Any  amendment  enters  into  force  for  those 
Contracting Parties which have not notified objections. 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

Norway submitted a proposal to move the Barnacle Goose (Branta leucopsis) from Appendix 
II  (strictly  protected  fauna  species)  to  Appendix  III  (protected  fauna  species  –  regulation  is 
possible).  The justification in support of the proposal is that the total population size of the 
Barnacle  Goose  has  multiplied  over  ten  times  from  the  1980s  to  2010  (from  112,000  to 

1 

Council Decision 82/72/EEC of 3 December 1981 on the conclusion on behalf of the Community of the 
Convention on the Conservation of European Wildlife and Natural Habitats, OJ L 38, 10.2.1982, p. 1. 

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1,319,000), including as a result of the intensification of agriculture that has made available 
large  quantities  of  feed2.  Therefore,  the  species  is  no  longer  in  need  of  strict  protection 
throughout its range. 

The subject matter of the envisaged decision of the Standing Committee concerns an area of 
EU exclusive external competence pursuant to Article 3(2) TFEU since it falls within an area 
already  largely  covered  by  internal  common  rules  (i.e.  the  Birds  Directive).  It  is  therefore 
necessary for the Council to take a decision for the purpose of establishing the positions to be 
adopted  on  behalf  of  the  Union  in  the  thirty-ninth  meeting  of  the  Standing  Committee  with 
regard to the envisaged act. 

This proposal is not in line with the current legal protection status of Barnacle Goose under 
the Birds Directive as it is not listed in its Annex II (huntable species). The species is listed in 
Annex I of the Birds Directive (i.e. requiring designation of Special Protection Areas). 
A  draft  Single  Species  Management  Plan  for  the  Barnacle  Goose  was  adopted  at  the  7th 
Meeting of the Parties of the African-Eurasian Waterbird Agreement (AEWA) in December 
2018 to address the very rapid population increase, particularly the resulting problems caused 
by the species (agricultural damage and risks to air safety). The Plan provide a framework for 
assisting  the  decision-making  process  in  range  states  concerning  the  application  of 
derogations,  including  a  regular  assessment  of  the  cumulative  impact  of  derogations, 
monitoring of the status of the population as well as the evolution of agricultural damage or 
risks  to  air  safety.  It  should  facilitate  the  sharing  of  information  and  potentially  the  co-
ordination  of derogation measures among range  states to  increase their efficiency and avoid 
unintended effects at flyway level. 

The  Union  should  support  the  Norwegian  amendment  proposal  to  address  the  very  rapid 
population increase of this species, particularly the resulting problems caused by the species 
(agricultural damage and risks to air safety), so that the non-EU parties to the Convention can 
apply  population  management  measures,  including  hunting  of  this  species  as  needed. 
However, since an amendment of the Annexes of the Birds Directive is currently not foreseen 
or possible within the short time frame required by the Convention (90 days), the Union will 
have to indicate that, for the time being, it will apply stricter protection measures, as provided 
for in Article 12 of the Convention. 

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 

International Single Species Management Plan for the Barnacle Goose, AEWA 
Technical Series No. 70, Dec. 2018, www.unep-
aewa.org/sites/default/files/publication/ts70_issmp_barnacle%20goose_complete.pdf, p. 
13. 

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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’3. 

4.1.2.  Application to the present case 

The Standing Committee is a body set up by the Convention. 

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. 

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

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 192(1). 

4.3. 

Conclusion 

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

5. 

PUBLICATION OF THE ENVISAGED ACT 

As the act of the Standing Committee will amend Appendices II and III of the Convention, it 
is appropriate to publish it in the Official Journal of the European Union after its adoption. 

3 

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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2019/0241 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the thirty-ninth meeting 
of the Standing Committee of the Convention on the Conservation of European Wildlife 
and Natural Habitats, with regards to amendments to Appendices II and III to that 
Convention 

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) 

(6) 

The  Convention  on  the  conservation  of  European  wildlife  and  natural  habitats  ('the 
Convention')  was  concluded  by  the  Union  by  Council  Decision  82/72/EEC4  and 
entered into force on 1 September 1982. 

Pursuant  to  Article  17  of  the  Convention,  the  Standing  Committee  may  adopt 
amendments to the appendices to the Convention. 

The Standing Committee, during its thirty-ninth meeting on 3-6 December 2019, is to 
adopt a decision on the proposed amendments to Appendix II and Appendix III to the 
Convention. 

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

Norway submitted a proposal to move Branta leucopsis from Appendix II to Appendix 
III to the Convention. 

In view of the very rapid population increase of this species across its range, the Union 
should  support  this  proposal.  However,  the  proposal  is  not  aligned  with  the  current 
protection  status  of  Branta  leucopsis  under  Directive  2009/147/EC  of  the  European 
Parliament  and  of  the  Council5.  As  an  amendment  of  Directive  2009/147/EC  is  not 
foreseen and is not possible within the time limit of three months after the adoption of 
the decision of the Standing Committee, laid down in the Convention, the Union for 
the time being needs to apply stricter conservation measures, as provided for in Article 
12 of the Convention. 

4 
5 

OJ L 38, 10.2.1982, p. 1. 
Directive  2009/147/EC  of  the  European  Parliament  and  of  the  Council  of  30  November  2009  on  the 
conservation of wild birds (OJ L 20, 26.1.2010, p.7) 

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HAS ADOPTED THIS DECISION: 

Article 1 

The  position  to  be  taken  on  the  Union's  behalf  in  the  thirty-ninth  meeting  of  the  Standing 
Committee  of  the  Convention  on  the  conservation  European  wildlife  and  natural  habitats, 
shall be to support the proposal to move Branta leucopsis from Appendix II to Appendix III 
thereto and to indicate to the Contracting Parties to the Convention that,  for the time being, 
the Union intends to apply stricter conservation measures for this species, as provided for in 
Article 12 of the Convention. 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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