Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the thirteenth meeting of the Conference of the Parties of the Convention on the conservation of migratory species of wild animals (CMS) with regard to proposals from various parties to amend the Appendices to that Convention, and on the withdrawal of a reservation notified to that Convention
Date: 2020-01-13
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, 13.1.2020  COM(2020) 8 final 2020/0005 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the thirteenth meeting of the Conference of the Parties of the Convention on the conservation of migratory species of wild animals (CMS) with regard to proposals from various parties to amend the Appendices to that Convention, and on the withdrawal of a reservation notified 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  thirteenth  meeting  of  the  Conference  of  the  Parties  of  the  Convention  on  the 
conservation of migratory  species of wild  animals ('the Convention') in  connection with  the 
envisaged adoption of decisions concerning amendment of the Appendices of the Convention, 
and the withdrawal of an existing reservation to that 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  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.  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  Convention.  Its 
functions  are  enumerated  in  Article  VII  of  the  Convention,  including  powers  to  assess  the 
conservation  status  of  migratory  species  and,  subsequently,  to  amend  Appendices  to  the 
Convention.  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 
Convention. 

The Union position concerning amendments of the Appendices is determined 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. 

The thirteenth meeting of the Conference of the Parties will take place in Gandhinagar (India) 
from 15 to 22 February 2020. 

The eighth meeting of the Conference of the Parties which took place in Nairobi, Kenya from 
20  to  25  November  2005  adopted  a  decision  to  include  the  species  Cetorhinus  maximus  in 
Appendix I to the Convention. 

2.3. 

The envisaged acts of the Conference of the Parties 

On 15 to 22 February 2020, during its thirteenth meeting, the Conference of the Parties is to 
adopt decisions regarding amendments of the Appendices of the Convention (‘the envisaged 
acts’). 

The purpose of the envisaged acts is to amend Appendix I and Appendix II of the Convention, 
as provided for in Article XI of the Convention.   

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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In  accordance  with  Article  III  of  the  Convention,  Appendix  I  of  the  Convention  shall  list 
migratory  species  which  are  endangered  and  for  which  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  Convention  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. 

In accordance with Article XI of the Convention, proposals for amendment may be made by 
any Party.  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. 

In  accordance  with  Article  XI  of  the  Convention,  a  reservation  to  an  amendment  may  be 
withdrawn by written notification to the Depository and thereupon the amendment shall enter 
into force for that Party ninety days after the reservation is withdrawn. 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

With regard to the thirteenth meeting of the Conference of the Parties of the Convention, and 
in  line with  Council Decision 2019/1581  of 16 September 2019, the Union has proposed to 
amend the Convention as follows: 

 (a) 

(b) 

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

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

Other Parties to the Convention have submitted proposals to amend Appendix I to include the 
following species: Elephas maximus indicus, Panthera onca, Ardeotis nigriceps, Houbaropsis 
bengalensis bengalensis, Diomedea antipodensis, and Carcharhinus longimanus. 

Other  Parties  to  the  Convention  have  submitted  proposals  to  amend  Appendix  II  to  include 
the following species: Panthera onca, Ovis vignei, and Sphyrna zygaena (regional population 
which  occurs  along  Brazil,  Uruguay,  Argentina  Exclusive  Economic  Zones  (EEZs)  and 
international adjacent waters). 

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 all proposals for amendment. 

The  Union  should  in  principle  support  all  proposals  because  they  are  science-based,  in  line 
with Union legislation and with the Union's commitment to international cooperation for the 
protection  of  biodiversity,  including  consideration  of  how  to  make  best  use  of  scientific 
information concerning both biological features and fisheries biological reference points. 

Adding these species to Appendix I or II to the Convention, as proposed, would not require 
any change in Union law. 

Concerning Panthera onca, which is present in the European Union only in French Guiana, 
where  EU  nature  legislation  does  not  apply,  its  hunting  is  forbidden  by  an  order  defining  a 

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zero  quota  with  derogatory  regimes  for  traditional  subsistence  users  and  extraordinary 
circumstances covered by article III(5), paragraphs c and d to the Convention. 

In  the  case  of  the  proposal  to  include  the  regional  population  of  Sphyrna  zygaena  which 
occurs along Brazil, Uruguay, Argentina EEZs and international adjacent waters in Appendix 
II,  since  this  proposal  overlaps  in  substance  with  the  Union's  proposal  to  include  the  entire 
global  population  of  this  species  in  Appendix  II,  the  Union  proposal  should  be  supported 
rather than the proposal submitted by the other party.  All other proposals should be supported 
unconditionally. 

Furthermore, with regard to the decision taken at the eighth meeting of the Conference of the 
Parties to include Cetorhinus maximus in Appendix I to the Convention, the Union's existing 
reservation2  with  regard  to  inclusion  of  Cetorhinus  maximus  in  Appendix  I  should  be 
withdrawn since Union law now meets the obligations of the Convention with regard to the 
protection of this species by Range States as a result of its inclusion in Appendix I. 

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’3. 

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  acts  which  the  Conference  of  the  Parties  is  called  upon  to  adopt  constitute  acts  having 
legal effects. The envisaged acts  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  acts  do  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 

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Established  in  2006  based  on  Council  Decision  of  21  February  2006  relating  to  the  amendment  of 
Appendix I to the Convention on the conservation of migratory species of wild animals, adopted at the 
eighth meeting of the Conference of the Parties, for the addition of Cetorhinus maximus. 
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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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 acts relate to environment.  

Therefore, the substantive legal basis of the proposed decision is Article 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 acts of the Conference of the Parties will amend Appendices I and II of the Convention 
on the conservation of migratory species of wild animals, it is appropriate to publish them in 
the Official Journal of the European Union after their adoption. 

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2020/0005 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the thirteenth meeting of 
the Conference of the Parties of the Convention on the conservation of migratory species 
of wild animals (CMS) with regard to proposals from various parties to amend the 
Appendices to that Convention, and on the withdrawal of a reservation notified 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) 

(7) 

The  Convention  on  the  conservation  of  migratory  species  of  wild  animals  (‘the 
Convention’)  was  concluded  by  the  Union  by  Council  Decision  82/461/EEC  of  24 
June 19824 and entered into force on 1 November 1983. 

Pursuant  to  Article  XI  of  the  Convention,  the  Conference  of  the  Parties  may  adopt 
decisions to amend the Appendices of the Convention. 

The  Conference  of  the  Parties,  during  its  thirteenth  meeting  on  15  to  22  February 
2020, is to adopt decisions to amend the Appendices of the Convention. 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
Conference of the Parties, as the decisions will be binding on the Union. 

The  Union  submitted  proposals  for  inclusion  of  the  species,  Galeorhinus  galeus, 
Tetrax tetrax and Sphyrna zygaena in Appendix II to the Convention and the species 
Tetrax  tetrax  to  Appendix  I  to  the  Convention,  none  of  which  would  require  any 
change in EU law. 

Other parties submitted proposals regarding the inclusion of Elephas maximus indicus, 
Panthera  onca,  Ardeotis  nigriceps,  Houbaropsis  bengalensis  bengalensis,  Diomedea 
antipodensis, and Carcharhinus longimanus to Appendix I and regarding the inclusion 
of  Panthera  onca,  Ovis  vignei,  and  Sphyrna  zygaena  (regional  population  which 
occurs  along  Brazil,  Uruguay,  Argentina  EEZs  and  international  adjacent  waters)  to 
Appendix II. 

The  Union  should  support  its  own  proposal  to  include  the  global  population  of 
Sphyrna  zygaena  in  Appendix  II  of  the  Convention,  in  preference  to  the  proposal 
submitted by another party to include only the regional population which occurs along 
Brazil, Uruguay, Argentina EEZs and international adjacent waters. 

(8) 

The Union should support all other proposals because they are science-based, in line 
with  the  Union's  commitment  to  international  cooperation  for  the  protection  of 

4 

OJ L 210, 19.7.1982, p. 10. 

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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. 

(9) 

The  EU  is  not  a  range  state  for  the  species  Elephas  maximus  indicus,  Ardeotis 
nigriceps,  and  Houbaropsis  bengalensis  bengalensis  so  adding  these  species  to 
Appendix I to the Convention would not require any change in Union law. 

(10)  The  EU  is  not  a  range  state  for  the  species  Ovis  vignei  so  adding  this  species  to 

Appendix II to the Convention would not require any change in Union law. 

(11)  The  species  Panthera  onca  occurs  in  the  EU  only  in  French  Guiana,  which  falls 
outside  the  scope  of  Council  Directive  92/43/EEC  of  21  May,  1992  on  the 
conservation of natural habitats and of wild fauna and flora5, which only applies to the 
European territory of the Member States to which the Treaty applies.  The protection 
of species in French Guiana, including of Panthera onca is therefore ensured through 
national legislation.  Hence adding this species to Appendix I of the Convention would 
not require any change in EU law. 

(12)  The  bird  species  Diomedea  antipodensis  does  not  occur  in  the  Union.  The  Union's 
Common  Fisheries  Policy  and  the  regulation  of  fishing  by  the  relevant  regional 
fisheries management organisations offer the appropriate instruments for the Union to 
contribute  to  managing  its  protection  so  adding  this  species  to  Appendix  I  to  the 
Convention would not require any change in EU law. 

(13)  The  Union's  Common  Fisheries  Policy  and  the  regulation  of  fishing  by  the  relevant 
regional fisheries management organisations offer the appropriate instruments for the 
EU  to  contribute  to  managing  the  protection  of  the  fish  species  Carcharhinus 
longimanus.    Furthermore,  the  fishing  and  retention  of  this  species  are  prohibited 
under Council Regulation 2019/124.   Therefore  adding this species to  Appendix I to 
the Convention would not require any change in EU law. 

(14)  The  fishing  and  retention  of  the  species  Cetorhinus  maximus,  which  is  included  in 
Appendix I to the Convention but concerning which inclusion the Union presently has 
a reservation in force, are prohibited under Council Regulation 2019/124.  Therefore 
withdrawing this reservation would not require any change in EU law. 

HAS ADOPTED THIS DECISION: 

Article 1 

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

(1) 

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

(1)  Tetrax tetrax 

(2)  Elephas maximus indicus 

(3)  Panthera onca 

(4)  Ardeotis nigriceps  

(5)  Houbaropsis bengalensis bengalensis 

(6)  Diomedea antipodensis 

5 

OJ L 206, 22.7.1992, p. 7. 

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(7)  Carcharhinus longimanus 

(2) 

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

(1)  Tetrax tetrax 

(2)  Galeorhinus galeus  

(3)  Sphyrna zygaena (global population) 

(4)  Panthera onca 

(5)  Ovis vignei 

Article 2 

The  Commission,  on  behalf  of  the  Union,  shall  communicate  to  the  Depository  the 
withdrawal of its reservation concerning the inclusion of Cetorhinus maximus in Appendix I 
to the Convention. 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 3 

For the Council 
The President 

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