Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the fortieth meeting of the Standing Committee of the Convention on the Conservation of European Wildlife and Nature Habitats (Bern Convention)
Date: 2020-10-16
Institutions: Directorate-General for Environment, European Commission
Subjects: European convention, European cooperation, biodiversity, financing method, protection of animal life, protection of plant life, revision of an agreement, standing committee (EU)

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   EUROPEAN COMMISSION  Brussels, 16.10.2020  COM(2020) 654 final 2020/0293 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the fortieth meeting of the Standing Committee of the Convention on the Conservation of European Wildlife and Nature Habitats (Bern Convention)  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns a decision establishing the position to be taken on the Union's behalf 
in the fortieth meeting of the Standing Committee of the  Convention on the conservation of 
European wildlife and natural habitats, Strasbourg, France, 1-4 December 2020, in connection 
with  the  envisaged  adoption  by  the  Standing  Committee  of  two  decisions  concerning 
amendment of the Convention, and establishment of an enlarged partial agreement. 

2. 

2.1. 

CONTEXT OF THE PROPOSAL 

The Convention on the conservation of European wildlife and natural habitats 
(Bern Convention) 

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.    It  is  responsible 
for following the application of the Convention. Its functions are enumerated in Articles 13 to 
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 16 of the Convention, an amendment  to  Articles 13 to  24 of the 
Convention  shall  be  adopted  by  a  three-quarters  majority  of  the  Parties  in  the  Standing 
Committee, after which it shall be submitted to the Committee of Ministers for approval.   

In  accordance  with  Article  14  of  the  Convention,  the  Standing  Committee  may  make 
proposals  for  improving  the  effectiveness  of  the  Convention.  Consequently,  the  Standing 
Committee may decide to propose to the Committee of Ministers the adoption of an Enlarged 
Partial Agreement for improving the application of the Convention.  In accordance with  rule 
8b  of  the  Rules  of  Procedure,  this  decision  of  the  Standing  Committee  shall  be  taken  by  a 
two-third majority of the votes cast. 

2.3. 

The envisaged act of the Standing Committee 

On  1-4  December  2020,  in  Strasbourg,  France,  during  its  fortieth  meeting,  the  Standing 
Committee is expected to adopt decisions regarding: 

 

 

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Amendment  of  the  Convention  to  introduce  financial  clauses  (‘the  first  envisaged 
act’) and 

Establishment of an Enlarged Partial Agreement on the Fund for the implementation 
of  the  Convention  on  the  Conservation  of  European  Wildlife  and  Natural  Habitats 
(‘the second envisaged act’). 

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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The  purpose  of  the  first  envisaged  act  is  to  amend  the  Convention  to  introduce  a  financial 
mechanism whereby the Standing Committee would determine a scale of obligatory financial 
contributions  from  Parties  to  complement  the  ordinary  budget  allocation  of  the  Council  of 
Europe. 

In accordance with Article 16 of the Convention, the first envisaged act shall enter into force 
for all Parties after approval by the Committee of Ministers and subsequently on the thirtieth 
day after all the Contracting Parties have notified acceptance. 

The  purpose  of  the  second  envisaged  act  is  to  strengthen  intergovernmental  cooperation  for 
the implementation of the Bern Convention, including through establishment of an obligatory 
financial contribution for the parties to the Enlarged Partial Agreement. 

In accordance with Article 20.d of the Statute of the Council of Europe and Article 2 of the 
Guide of the Committee of Ministers of the Council of Europe on Procedures and Working 
Methods, following the decision by the Standing Committee, the second envisaged act shall 
enter  into  force  for  all  Parties  to  the  Enlarged  Partial  Agreement  after  adoption  by  the 
Committee of Ministers by a two-thirds majority of the Representatives casting a vote and a 
majority  of  the  Representatives  entitled  to  sit  on  the  Committee  of  Ministers,  and 
subsequently  after  a  threshold  of  signatories  is  achieved.  Unless  otherwise  decided  by  the 
Committee  of  Ministers,  the  minimum  membership  threshold  is  fixed  at  one  third  of  the 
Member States of the Council of Europe, which at present would consist of 16 countries.  

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

In  accordance  with  Resolution  No.  9  (2019)  of  the  thirty-ninth  meeting  of  the  Standing 
Committee,  adopted  on  6  December  2019,  on  the  financing  of  the  Bern  Convention  on 
initiating the establishment of a new system of obligatory financial contributions by Parties, 
an  inter-sessional  expert  working  group  was  established  to  assist  the  Secretariat  to  present 
proposals  for  the  inclusion  of  financial  clauses  by  amending  the  articles  of  the  Bern 
Convention and for the establishment of an Enlarged Partial Agreement, for consideration at 
the fortieth meeting of the Standing Committee. 

The  ordinary  allocation  of  the  Council  of  Europe  to  the  Bern  Convention  has  progressively 
decreased  over  the  years  to  the  point  that  the  functions  of  the  Bern  Convention  cannot  be 
assured without substantial voluntary contributions by the parties, which are also in decline.  
It is therefore essential to establish a reliable source of finance for the Convention. 

The  proposal  to  amend  the  Convention  to  include  a  mechanism  to  establish  an  obligatory 
contribution aligns with provisions of most multilateral environmental agreements, so should 
be  supported  in  principle.    Nevertheless,  in  the  context  of  other  multilateral  environmental 
agreements,  there  is  normally  a  distinction  between  the  core  budget  and  the  programmatic 
budget, with only the former subject to obligatory contributions.  The proposed amendment to 
the  Convention  does  not  clarify  that  the  mechanism  to  be  established  would  follow  this 
precedent.    Neither  does  the  proposed  amendment  specify  the  scale  of  contributions  to  be 
applied.    The  Union  should  therefore  not  support  the  amendment  in  its  present  format,  but 
favour a postponement of the vote on this issue to allow a period of negotiation to refine the 
text of the proposed amendment in order ensure clarity on these matters.  

Considering  the  length  of  time  required  for  the  proposed  amendment  to  be  negotiated  and 
enter  into  force,  a  more  immediate  solution  is  also  required.    The  Union  should  therefore 
support  the  proposal  to  establish  an  Enlarged  Partial  Agreement,  to  allow  those  Parties  and 

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non-members who so wish to accede to this agreement and thereby support activities related 
to implementation 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 
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. 

4.1.2.  Application to the present case 

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

The acts  which the Standing Committee is  called upon to  adopt  constitute acts  having legal 
effects. The envisaged acts will be binding under international law in accordance with Article 
6 of the Convention. 

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 
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) TFEU. 

4.3. 

Conclusion 

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

2 

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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5. 

PUBLICATION OF THE ENVISAGED ACT 

As the envisaged acts of the Standing Committee require further approval by the Committee 
of  Ministers,  it  is  not  appropriate  to  publish  them  in  the  Official  Journal  of  the  European 
Union after their adoption. 

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2020/0293 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the fortieth meeting of 
the Standing Committee of the Convention on the Conservation of European Wildlife 
and Nature Habitats (Bern 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) 

(8) 

The  Convention  on  the  conservation  of  European  wildlife  and  natural  habitats  ('the 
Convention')  was  concluded  by  the  Union  by  Council  Decision  82/72/EEC3  and 
entered into force on 1 September 1982.  

Pursuant  to  Article  16  of  the  Convention,  the  Standing  Committee  may  adopt 
amendments  to  the  Convention  for  submission  to  the  Committee  of  Ministers  for 
approval. 

Pursuant to article Article 14 of the Convention, whereby the Standing Committee of 
Contracting Parties to the Bern Convention is responsible for following the application 
of  the  Convention,  and  may  in  particular  make  any  proposals  for  improving  the 
effectiveness of the Convention, the Standing Committee may decide to propose to the 
Committee  of  Ministers  the  establishment  of  an  Enlarged  Partial  Agreement  for 
improving the application of the Convention. 

The  Standing  Committee,  during  its  fortieth  meeting  on  1-4  December  2020,  is  to 
adopt decisions on amendment of the Convention to introduce financial clauses and on 
establishment of an Enlarged Partial Agreement on the Fund for the implementation of 
the Convention on the Conservation of European Wildlife and Natural Habitats. 

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

The  Secretariat  has  presented  a  proposal  to  amend  the  Convention  to  introduce  a 
financial  mechanism  whereby  the  Standing  Committee  would  determine  a  scale  of 
obligatory  financial  contributions  from  Parties  to  complement  the  ordinary  budget 
allocation of the Council of Europe. 

In accordance with Article 16 of the Convention, this amendment shall enter into force 
for all Parties after approval by the Committee of Ministers and subsequently on the 
thirtieth day after all the Parties have notified acceptance. 

The  Secretariat  has  also  presented  a  proposal  to  strengthen  intergovernmental 
cooperation for the implementation of the Bern Convention through establishment of 

3 

OJ L 38, 10.2.1982, p. 1.  

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(9) 

an  Enlarged  Partial  Agreement,  which  would  include  an  obligatory  financial 
contribution for the parties to the Enlarged Partial Agreement. 

In accordance with Article 20.d of the Statute of the Council of Europe and Article 2 
of the Guide of the Committee of Ministers of the Council of Europe on Procedures 
and Working Methods, following a decision by the Standing Committee, the proposed 
Enlarged Partial Agreement shall come into force for all Parties to the Enlarged Partial 
Agreement after adoption by the Committee of Ministers by a two-thirds majority of 
the Representatives casting a vote and a majority of the Representatives entitled to sit 
on  the  Committee  of  Ministers,  and  subsequently  after  a  threshold  of  signatories  is 
achieved. 

(10)  There  is  a  pressing  need  to  establish  a  secure  and  reliable  source  of  finance  for  the 
functioning  of  the  Bern  Convention,  considering  the  decrease  in  finance  provided 
through the ordinary contribution of the Council of Europe, as well as the decrease in 
voluntary contributions by Parties. 

(11)  An amendment of the Convention to introduce a financial mechanism aligns with how 
other  multilateral  environmental  agreements  are  financed  and  would  ensure  a  fair 
contribution  by  all  Parties  to  the  Convention.  However,  the  proposed  text  for 
amendment  of  the  Convention  leaves  uncertainty  with  regards  to  the  financial 
mechanism to be established, particularly with regard to the distinction between core 
and programmatic budgets, and with regard to the level of contributions to be required. 

(12)  Support for an amendment of the Convention to introduce a financial mechanism must 

follow the procedure set out in Article 218, paragraphs 2 to 4 of the Treaty. 

(13)  The length  of time required for negotiation and entry into force of an amendment to 
the Convention indicates the need for a more immediate solution, which would be met 
through the proposed Enlarged Partial Agreement. 

(14)  Enlarged  Partial  Agreements  are  not  international  treaties  per  se,  but  a  form  of  co-

operation within the Council of Europe. 

(15) 

In  view  of  treaty  obligations  for  loyal  cooperation,  those  Member  States  which 
become  party  to  the  Enlarged  Partial  Agreement  would  be  bound  to  ensure  that  the 
application  of  this  agreement  would  align  with  Union  interests  in  the  context  of  the 
Bern Convention,  

HAS ADOPTED THIS DECISION: 

Article 1 

The  position  to  be  taken  on  the  Union's  behalf  in  the  fortieth  meeting  of  the  Standing 
Committee of the Convention on the conservation European wildlife and natural habitats shall 
be: 

 

 

To propose a motion to postpone the vote on the proposal to amend the Convention 
until the forty-first meeting of the Standing Committee;  

To support the proposal to establish an Enlarged Partial Agreement. 

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This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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