Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the fourteenth meeting of the Conference of the Parties to the Convention on the Conservation of Migratory Species of Wild Animals (CMS) as regards proposals from various parties to amend the Appendices to that Convention
Date: 2023-08-14
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, 14.8.2023  COM(2023) 486 final 2023/0298 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the fourteenth meeting of the Conference of the Parties to the Convention on the Conservation of Migratory Species of Wild Animals (CMS) as regards proposals from various parties to amend the Appendices 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 14th meeting of the Conference of the Parties to the Convention on the Conservation of 
Migratory  Species  of  Wild  Animals  ('the  Convention')  in  connection  with  the  envisaged 
adoption of decisions concerning the amendment of the Appendices to 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 aims to conserve 
terrestrial,  marine  and  avian  migratory  species 
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.  All  Member  States  are  parties  to  the 
Convention. 

their  range.  It 

throughout 

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 I and II 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  the 
Convention. 
The 14th meeting of the Conference of the Parties will take place in Samarkand (Uzbekistan) 
in early 2024. 

The envisaged acts of the Conference of the Parties 

2.3. 
During  its  14th  meeting,  the  Conference  of  the  Parties  is  to  adopt  decisions  regarding 
amendments of the Appendices to the Convention (‘the envisaged acts’). 

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

In  accordance  with  Article  III  of  the  Convention,  Appendix  I  to  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 

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, 19.7.1982, p. 10. 

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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 amendments 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. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

3. 
With regard to the 14th meeting of the Conference of the Parties to the Convention, and in line 
with Council Decision (EU) 2023/1034 of 22 May 20232, the Union has proposed to amend 
the Convention as follows: 

an  amendment  to  Appendix  I  to  the  Convention  to  include  the  Baltic  Proper 
population of the harbour porpoise, Phocoena phocoena.   

Other Parties to the Convention have submitted proposals to amend Appendix I to include the 
following  species  and  subspecies:  Lynx  lynx  balcanicus,  Tursiops  truncatus  gephyreus, 
Pelecanus  thagus,  Pluvianellus  socialis,  Southern  African  population  of  Gypaetus  barbatus 
meridionalis,  Carcharias  taurus,  Mediterranean  Sea  population  of  Glaucostegus  cemiculus, 
Mediterranean  Sea  population  of  Aetomylaeus  bovinus,  Mediterranean  Sea  population  of 
Rhinoptera marginata. 

Other  Parties  to  the  Convention  have  submitted  proposals  to  amend  Appendix  II  to  include 
the following species: Lynx lynx, Felis manul, Lama guanicoe, Tursiops truncatus gephyreus, 
Pelecanus  thagus,  Carcharias  taurus,  Glaucostegus  cemiculus,  Aetomylaeus  bovinus, 
Rhinoptera marginata, Brachyplatystoma rousseauxii, Brachyplatystoma vaillantii.  

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  14th  meeting  of  the 
Conference of the Parties with regard to all proposals for amendments. 

The Union should support all the above-mentioned proposals because they are science-based 
and  in  line  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,  except  for  the  inclusion  of  Carcharias  taurus  in  Appendix  I,  the 
Mediterranean Sea population of Aetomylaeus bovinus in Appendix I, and the Mediterranean 
Sea population of Rhinoptera marginata in Appendix I, since the current level of protection in 
the  Union  for  these  species  does  not  satisfy  the  requirements  of  Article  III(5)  of  the 
Convention.  
The Eurasian lynx, Lynx lynx, is covered by the EU Habitats Directive3. Adding this species 
to  Appendix  II,  and  the  subspecies  Lynx  lynx  balcanicus  to  Appendix  I  to  the  Convention, 
should be supported.  

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Council  Decision  (EU)  2023/1034  of  22  May  2023  on  the  submission,  on  behalf  of  the  European 
Union, of a proposal to amend Appendix I to the Convention on the Conservation of Migratory Species 
of  Wild  Animals  with  a  view  to  the  fourteenth  meeting  of  the  Conference  of  the  Parties,  OJ  L  139, 
26.5.2023, p.47. 
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. 

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The Union is not a range state for the species and subspecies Tursiops truncatus gephyreus, 
Pelecanus thagus, Pluvianellus socialis, Gypaetus barbatus meridionalis, hence adding these 
species  and  subspecies  to  Appendix  I  to  the  Convention  would  not  require  any  change  in 
Union law. 

The Union is not a range state for the species Felis manul, Lama guanicoe, Tursiops truncatus 
gephyreus,  Pelecanus  thagus,  hence  adding  these  species  to  Appendix  II  to  the  Convention 
would not require any action by the Union. 
The  species  Glaucostegus  cemiculus  is  strictly  protected  under  the  Barcelona  Convention4. 
Furthermore,  retention  on  board  of  fishing  vessels  of  this  species  is  prohibited  under 
Regulation (EU) 1343/20115. Therefore, adding this species to Appendix II to the Convention 
and adding the Mediterranean Sea population of this species to Appendix I to the Convention 
should be supported. 

The  species  Brachyplatystoma  rousseauxii  and  Brachyplatystoma  vaillantii  occur  in  the 
Union only  in  French Guiana,  where  Union nature legislation does not  apply.  Adding these 
species to Appendix II to the Convention should be supported.  

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’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. 

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 
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6 

The Convention for the Protection of the Mediterranean Sea Against Pollution. 
Regulation (EU) No 1343/2011 of the European Parliament and of the Council of 13 December 2011 on 
certain  provisions  for  fishing  in  the  GFCM  (General  Fisheries  Commission  for  the  Mediterranean) 
Agreement  area  and  amending  Council  Regulation  (EC)  No  1967/2006  concerning  management 
measures  for  the  sustainable  exploitation  of  fishery  resources  in  the  Mediterranean  Sea.  OJ  L  347, 
30/12/2011, p. 44, Consolidated version of 10/07/2019.  
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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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 acts relate to environmental protection. 

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 to 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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2023/0298 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the fourteenth meeting of 
the Conference of the Parties to the Convention on the Conservation of Migratory 
Species of Wild Animals (CMS) as regards proposals from various parties to amend the 
Appendices 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  Migratory  Species  of  Wild  Animals  (the 
‘Convention’)  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  Convention,  the  Conference  of  the  Parties  to  the 
Convention  (the  ‘Conference  of  the  Parties’)  may  adopt  decisions  to  amend  the 
Appendices to the Convention. 

The Conference of the Parties, during its fourteenth meeting in early 2024, is to adopt 
decisions to amend the Appendices to the Convention. 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  at  the 
meeting of the Conference of the Parties, as the decisions amending the Appendices to 
the Convention will be binding on the Union. 

The  Union  submitted  a  proposal  for  inclusion  of  the  Baltic  Proper  population  of  the 
harbour porpoise,  Phocoena phocoena,  to  Appendix  I to  the  Convention. The Union 
should  support  its  own  proposal.  This  proposed  amendment  would  not  require  any 
change in Union law. 

Other  parties  submitted  proposals  regarding  the  inclusion  of  Lynx  lynx  balcanicus, 
Tursiops  truncatus  gephyreus,  Pelecanus  thagus,  Pluvianellus  socialis,  Southern 
African  population  of  Gypaetus  barbatus  meridionalis,  Carcharias 
taurus, 
Mediterranean  Sea  population  of  Glaucostegus  cemiculus,  Mediterranean  Sea 
population  of  Aetomylaeus  bovinus,  Mediterranean  Sea  population  of  Rhinoptera 
marginata in Appendix I and regarding the inclusion of Lynx lynx, Felis manul, Lama 
guanicoe,  Tursiops 
taurus, 
thagus,  Carcharias 
Glaucostegus 
bovinus,  Rhinoptera  marginata, 
Brachyplatystoma  rousseauxii,  Brachyplatystoma  vaillantii  in  Appendix  II  to  the 
Convention. 

truncatus  gephyreus,  Pelecanus 

cemiculus,  Aetomylaeus 

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, 19.7.1982, p. 10). 

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(7) 

(8) 

The  Union  should  support  all  the  above-mentioned  proposals,  because  they  are 
science-based,  in  line  with  the  Union's  commitment  to  international  cooperation  for 
the protection of biodiversity in accordance with  Article 5 of the UN Convention on 
Biological Diversity, and in line with decisions taken at the Conference of the Parties 
to that Convention. 

The  proposals  to  include  the  species  Carcharias  taurus  and  the  Mediterranean  Sea 
populations  of  Aetomylaeus  bovinus  and  Rhinoptera  marginata  in  Appendix  I  of  the 
Convention would require a change to Union law, since the current level of protection 
in  the  Union  does  not  satisfy  the  requirements  of  Article  III(5)  of  the  Convention. 
Therefore, the Commission, on behalf of the Union, is to enter a reservation pursuant 
to  Article  XI(6)  of  the  Convention  with  regard  to  the  inclusion  of  these  species  in 
Appendix I. 

HAS ADOPTED THIS DECISION: 

Article 1 

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

(1) 

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

(1)  Lynx lynx balcanicus  

(2)  Pelecanus thagus 

(3)  Pluvianellus socialis 

(4)  Southern African population of Gypaetus barbatus meridionalis 

(5)  Baltic Proper population of Phocoena phocoena  

(6)  Tursiops truncatus gephyreus 

(7)  Mediterranean Sea population of Glaucostegus cemiculus  

(2) 

to support the addition to Appendix I of the following species, subject to the entry of 
a reservation by the Commission on behalf of the Union: 

(1)  Carcharias taurus 

(2) 

(3) 

 Mediterranean Sea population of Aetomylaeus bovinus 

 Mediterranean Sea population of Rhinoptera marginata 

(3) 

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

(1)  Lynx lynx  

(2)  Felis manul  

(3)  Lama guanicoe  

(4)  Tursiops truncatus gephyreus 

(5)  Pelecanus thagus 

(6)  Carcharias taurus 

(7)  Glaucostegus cemiculus 

(8)  Aetomylaeus bovinus 

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(9)  Rhinoptera marginata 

(10)  Brachyplatystoma rousseauxii 

(11)  Brachyplatystoma vaillantii 

Article 2 

Refinement  of  the  position  referred  to  in  Article  1  may  be  agreed  to,  in  the  light  of 
developments at the fourteenth meeting of the Conference of the Parties on the Conservation 
of  Migratory  Species  of  Wild  Animals,  by  the  representatives  of  the  Union,  in  consultation 
with Member States during on-the-spot coordination meetings, without a further decision of 
the Council. 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 3 

For the Council 
The President 

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