Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union with regard to submitting a proposal for amendment of Appendix I to the Convention on the Conservation of Migratory Species of Wild Animals (CMS) with a view to the 14th meeting of the Conference of the Parties
Date: 2023-03-17
Institutions: Directorate-General for Environment, European Commission
Subjects: biodiversity, environmental cooperation, international convention, marine mammal, protected species, protection of animal life, revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 17.3.2023  COM(2023) 143 final 2023/0074 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union with regard to submitting a proposal for amendment of Appendix I to the Convention on the Conservation of Migratory Species of Wild Animals (CMS) with a view to the 14th 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 14th meeting of the Conference of 
the Parties to amend the Appendices to that 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 
Convention’)  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 Convention. The Convention entered 
into force on 1 November 1983. 
The European Union is a party to the Convention1. 

2.2. 

The Conference of the Parties 

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

The  fourteenth  meeting  of  the  Conference  of  the  Parties  will  take  place  in  Samarkand 
(Uzbekistan)  from  23  to  28  October  2023.  The  deadline  for  submitting  proposals  for 
amendments has been fixed by the Secretariat of the Convention, in line with Article XI (3), 
to be 26 May 2023. 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 fourteenth 
meeting of the Conference of the Parties with regard to submitting proposals for amendment. 

Before  the  fourteenth  meeting  of  the  Conference  of  the  Parties,  the  Secretariat  of  the 
Convention may communicate proposals made by other Parties to amend Appendices I and II 
to  the  Convention,  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  fourteenth  meeting  of  the  Conference  of  the  Parties,  it  is  proposed  that  the  Union 
submits a proposal to amend Appendix I to the Convention to increase the protection of one 
cetacean  species,  Baltic  Proper  harbour  porpoise  (Phocoena  phocoena),  throughout  its 
distribution range, including outside the Union.   

If adopted, the envisaged act will become binding on the Parties in accordance with Article XI 
of the Convention, which provides that an amendment to the Appendices enters into force for 

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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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  proposal  to  amend  Appendix  I  is  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 Eighth Environment Action Programme to 20302 and the 
EU  Biodiversity  Strategy  for  20303,  especially  key  commitment  14  of  the  EU  Nature 
Restoration  Plan  whereby  the  by-catch  of  species  is  eliminated  or  reduced  to  a  level  that 
allows  species  recovery  and  conservation.  This  proposal  would  not  require  any  change  in 
Union  law,  as  it  concerns  species  which  already  benefit  from  appropriate  protection  under 
Union law, notably under the EU Habitats Directive4 (which prohibits the capture or killing of 
cetaceans  within  the  EU)  and  under  the  EU  Common  Fisheries  Policy5.  The  European 
Commission  adopted  on  21  February  2023  the  "EU  Action  Plan:  Protecting  and  restoring 
marine ecosystems for sustainable and resilient fisheries", stemming from the EU Biodiversity 
Strategy  for  2030,  calling  on  EU  Member  States  to  adopt  or  recommend  measures  to 
minimise by-catch of the Baltic Sea harbour porpoise (or reduce it to the level that enables the 
full recovery of the population)6.   

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 Convention. 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 EU Biodiversity Platform (EUBP).  

The  position  to  be  taken  on  the  Union’s  behalf  should  therefore  be  to  authorise  the 
Commission to submit the above-mentioned proposal to the Secretariat 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 
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4 

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EUR-Lex - 32022D0591 - EN - EUR-Lex (europa.eu) 
EUR-Lex - 52020DC0380 - EN - EUR-Lex (europa.eu) 
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna 
and flora, OJ L 206, 22/07/1992 p. 0007 - 0050 
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 
See also Commission Delegated Regulation (EU) 2022/303 of 15 December 2021 amending Regulation 
(EU)  2019/1241  as  regards  measures  to  reduce  incidental  catches  of  the  resident  population  of  the 
Baltic Proper harbour porpoise (Phocoena phocoena) in the Baltic Sea” 

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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’7. 

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 
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). 

4.3. 

Conclusion 

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

7 

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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2023/0074 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union with regard to submitting a 
proposal for amendment of Appendix I to the Convention on the Conservation of 
Migratory Species of Wild Animals (CMS) with a view to the 14th 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) 

(6) 

The  Convention  on  the  Conservation  of  Migratory  Species  of  Wild  Animals  (‘the 
Convention)  was  concluded  by  the  Union  by  Council  Decision  82/461/EEC5  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 Appendices I and II to the Convention. 

The Conference of the Parties, during its fourteenth meeting on 23 to 28 October 2023, 
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 Convention, by 26 May 2023. 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 to submit 
proposals  to  amend  the  Appendices  to  the  Convention,  as  the  decision  of  the 
Conference of the Parties will be binding on the Union. 

The inclusion of the Baltic Proper harbour porpoise, Phocoena phocoena, in Appendix 
I  to  the  Convention  would  be  scientifically  sound  on  account  of  its  Critically 
Endangered  conservation  status,  in  line  with  the  Union  legislation  and  with  the 
Union's commitment to international cooperation for the protection of biodiversity. 

The  Union  should  therefore  submit  such  proposal  to  amend  Appendix  I  to  the 
Convention.  The Commission should  communicate the proposal  to  the Secretariat  of 
the Convention. 

HAS ADOPTED THIS DECISION: 

Article 1 

1. With a view to the fourteenth meeting of the Conference of the Parties to the Convention 
on  the  Conservation  of  Migratory  Species  of  Wild  Animals,  the  position  of  the  Union  is  to 
submit a  proposal  for  an amendment  of Appendix  I to  the  Convention to include  the Baltic 
Proper harbour porpoise, Phocoena phocoena.  

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2.  The  Commission  shall  communicate  this  proposal,  on  behalf  of  the  Union,  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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