CELEX: 62020CC0659
Language: en
Date: 2022-03-03 00:00:00
Title: Opinion of Advocate General Medina delivered on 3 March 2022.###

Provisional text
OPINION OF ADVOCATE GENERAL
MEDINA
delivered on 3 March 2022(1)

Case C‑659/20

ET

v

Ministerstvo životního prostředí

(Request for a preliminary ruling from the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic)
(Reference for a preliminary ruling – Article 267 TFEU – Protection of species of wild fauna and flora by regulating trade therein – Regulations (EC) No 338/97 and (EC) No 865/2006 – Exemptions from the prohibition of commercial activities – Captive-born and -bred specimens of an animal species – Concept of ‘breeding stock’ – Establishment of the ancestry of the breeding stock)

 Introduction

1.        ‘Wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come’. That fundamental statement is made in  the preamble to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (‘CITES’). (2)

2.        CITES is an international environmental treaty pursuing the objective of protecting certain species of wild fauna and flora from over-exploitation through international trade.  Commentators have described it as ‘arguably the most successful of all international treaties concerned with the conservation of wildlife’, while nevertheless acknowledging that ‘problems most certainly still exist’. (3) More particularly, illegal wildlife trafficking ‘continues to be a major concern’. (4) The value of illegal trade worldwide  is estimated by some to be between 7 and 23 thousand million United States dollars (USD) per year. (5) The most recent UN World Wildlife Crime Report shows wildlife crime to be a business that is ‘global; lucrative, with high demand driving high prices; and extremely widespread’. (6) That same report highlights the links between the global health crisis and the illegal exploitation of wildlife and considers the end to wildlife crime to be an ‘essential part of building back better from the COVID-19 crisis’. (7)

3.        It is against the backdrop of those general considerations that I intend to pursue the analysis of the request for a preliminary ruling submitted by the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic). That request concerns the interpretation of two EU regulations pursuing the objective of protecting species of wild fauna and flora and guaranteeing their conservation through controls on international trade in specimens of those species, namely Council Regulation (EC) No 338/97 (8) and Commission Regulation (EC) No 865/2006. (9)

4.        Regulation No 338/97 lays down certain  derogating  provisions applicable to captive-born and -bred specimens of animal species listed in Annex A to that regulation. The main issue raised in the present case is essentially whether, for the purpose of determining whether specimens qualify for an exemption from the prohibition of trade applicable to captive-bred specimens of an animal species,  the competent authorities  may verify the  origin of the breeding stock even where that examination extends beyond the specimens which the breeder lawfully acquired. As I intend to demonstrate in my analysis, the authorities should have the power to do so in order to determine whether the exemption should be granted.
 Legal framework

 International law

 CITES

5.        The  object of CITES is to protect certain endangered species of wild fauna and flora by regulating international trade. It lays down separate rules protecting different species, divided into three categories corresponding to the three appendices to the convention and according to how great the threat of extinction is for them.

6.        That convention, to which the European Union became a party on 8 July 2015, was implemented in the European Union as from 1 January 1984 by virtue of Council Regulation (EEC) No 3626/82. (10) That regulation was repealed by Regulation No 338/97.

7.        Appendix I to CITES includes the most endangered species, with the strictest rules on protection. Pursuant to Article II(1) of CITES, trade in specimens of those species must be authorised only in ‘exceptional  circumstances’.

8.        Pursuant to Article II(2)(a) of CITES, Appendix II to that convention includes ‘all species which although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilisation incompatible with their survival’.  The requirements for imports of Appendix II species are less stringent compared to those which apply to Appendix I species.

9.        Article VII(4) of CITES provides that specimens of an animal species included in Appendix I and bred in captivity for commercial purposes are to be deemed to be specimens of species included in Appendix II.
 European Union law

 Regulation No 338/97

10.      Article 1 of Regulation No 338/97 states that its object is to protect species of wild fauna and flora and to guarantee their conservation by regulating trade therein. It also states that it is to  apply in compliance with the objectives, principles and provisions of CITES.

11.      Article 2 of that regulation contains the following definitions:
‘…
(g)      “management authority” shall mean a national administrative authority designated, in the case of a Member State, in accordance with Article 13(1)(a)…
…
(s)      “species”  shall mean a species, subspecies or population thereof;
(t)      “specimen” shall mean any animal or plant, whether alive or dead, of the species listed in Annexes A to D …
…’

12.      Article 8 of Regulation No 338/97 provides:
‘1.      The purchase, offer to purchase, acquisition for commercial purposes, display to the public for commercial purposes, use for commercial gain and sale, keeping for sale, offering for sale or transporting for sale of specimens of the species listed in Annex A shall be prohibited.
…
3.      In accordance with the requirements of other Community legislation on the conservation of wild fauna and flora, exemption from the prohibitions referred to in paragraph 1 may be granted by issuance of a certificate to that effect by a management authority of the Member State in which the specimens are located, on a case-by-case basis where the specimens:
….
(d)      are captive-born and bred specimens of an animal species or artificially propagated specimens of a plant species or are parts or derivatives of such specimens; …
…’
 Regulation No 865/2006

13.      Article 1(3) of Regulation No 865/2006 contains the following definition:
‘“breeding stock” means all the animals in a breeding operation that are used for reproduction;’

14.      Article 54 of Regulation No 865/2006, headed ‘Specimens born and bred in captivity of animal species’, provides:
‘Without prejudice to Article 55, a specimen of an animal species shall be considered to be born and bred in captivity only if a competent management authority, in consultation with a competent scientific authority of the Member State concerned, is satisfied that the following criteria are met:
…
(2)      the breeding stock was established in accordance with the legal provisions applicable to it at the time of acquisition and in a manner not detrimental to the survival of the species concerned in the wild;
…’
 Facts, procedure and the questions referred

15.      The applicant is a parrot breeder. He applied, on 21 January 2015, for an exemption from the prohibition of  trade  in respect of  five specimens of the hyacinth macaw (Anodorhynchus hyacinthinus) bred by the applicant and born in 2014. That species is listed in Annex A to Regulation No 338/97 and in Appendix I to CITES. The competent management authority refused to grant the application, based on an opinion of the competent scientific authority.

16.      For the purpose of its assessment, the competent management authority made the following findings regarding the origin of the parrots subject to evaluation. The grandparents of the parrots (‘the grandparent specimens’) were imported  by a Uruguayan national  to Bratislava (Slovakia)  in June 1993 under  suspicious circumstances. The grandparent specimens were subsequently transferred by car to the Czech Republic by FU. At the border, the car was stopped by customs authorities and the grandparent specimens were confiscated from FU by means of an administrative decision. That administrative decision was, however, overturned by the Vrchní soud v Praze (High Court, Prague, Czech Republic) in 1996.

17.      The authorities returned the grandparent specimens to FU who then lent them  to GV. GV bred the parents of the parrots in question (the ‘parent specimens’) in 2000 and subsequently returned the grandparent specimens to FU, who in turn handed them over to the Zlín Zoo (Zlín,  Czech Republic). The applicant obtained the parent specimens from GV in 2000. The validity of the transfer of ownership of the parent specimens to the applicant is not contested.

18.      The scientific authority assessed whether the parent specimens qualified for exemption from the prohibition of trade  applicable to captive-bred specimens of an animal species in accordance with the conditions laid down in Article 54(2) of Regulation No 865/2006. According to that provision, the breeding stock has to be established ‘in accordance with the legal provisions applicable to it at the time of acquisition and in a manner not detrimental to the survival of the species concerned in the wild’. The scientific authority recommended that the exemption not be granted. In its view,  there were discrepancies in the registration documents pertaining to the grandparent specimens and, furthermore,  no information about the origin of the parent specimens was provided.

19.      Based on the opinion of the scientific authority, the competent  management authority refused to grant an exemption  permitting the trade  of the specimens in question. The applicant brought an appeal against that decision before the Ministerstvo životního prostředí (Ministry of the Environment, Czech Republic). In his appeal, he claimed that the concept of ‘breeding stock’ had been misinterpreted. In his view, that concept comprises only the parent specimens and their offspring. Hence, the authorities did not have the power to verify the  origin of the grandparent specimens. The Ministerstvo životního prostředí (Ministry of the Environment) rejected the appeal, considering that the method of acquisition of the first reproducing pair is decisive in order to assess whether the breeding stock  has been established in accordance with the applicable rules. Given that the applicant was not able to prove the origin of the grandparent specimens, it was impossible to grant the exemption  permitting the trade of the specimens in question.

20.      The applicant challenged the decision of the Ministerstvo životního prostředí (Ministry of the Environment) before the Krajský soud v Hradci Králové (Regional Court,  Hradec Králové, Czech Republic). The judgment delivered by that court stated that trade in parrots of the Anodorhynchus species is prohibited and may be permitted only in exceptional circumstances as set out in Article 54(2) of Regulation No 865/2006, which were not the circumstances in which the applicant found himself. That court pointed out that,  at the time of acquisition of the grandparent  specimens, CITES was already in force in the Czech Republic and had been implemented into national law. It considered that, according to the legislation implementing CITES, an examination into the origin of the breeding stock is permitted and can be extended  to the grandparent  specimens. Therefore, the concept of ‘breeding stock’, as defined by Regulation No 865/2006, covers all three generations of parrot.

21.      The applicant lodged an appeal on a point of law against the judgment of the Krajský soud v Hradci Králové (Regional Court,  Hradec Králové) before the  Nejvyšší správní soud (Supreme Administrative Court), the referring court. He claimed that the judgment under appeal erred in law by taking the view that the concept of ‘breeding stock’ covers the parent and the grandparent specimens concerned. According to the applicant, such  an interpretation places an unreasonable burden of proof on him. Moreover, he claims that it is  incorrect  in the light of the scope of the concept of ‘breeding stock’. That concept, in the applicant’s submission, includes all animals located in one specific breeding operation and not their ancestors kept in other operations or by other breeders. The applicant also claims that the contested decision infringed his right to property and  his legitimate expectations given that he had  lawfully acquired the  parent specimens.

22.      In its response to the applicant’s  appeal on a point of law, the Ministerstvo životního prostředí (Ministry of the Environment) referred to the wording of Article 54(2) of Regulation No 865/2006, which employs the term ‘[establishment]’ of breeding stock. The term ‘establishment’ clearly refers to the past and thereby to the beginning of the breeding line. Furthermore, the Ministerstvo životního prostředí (Ministry of the Environment) stated that the definition of breeding stock is secondary, whereas the manner in which the stock was established is decisive for the purposes of granting an exemption.  With respect to the burden of proof, the Ministerstvo životního prostředí (Ministry of the Environment)  stated that it was not unreasonable, given that an owner would be required to prove the origin of the breeding stock only if he or she intended to trade subsequent generations. The authorities examine the origin of the breeding stock in compliance with established practice in the European Union. However, the opposite view,  advanced by the applicant,  makes it easier to legitimise  the breeding stock bred from specimens obtained from the wild. With regard to the right to property, the Ministerstvo životního prostředí (Ministry of the Environment)  noted that the legal ownership of the grandparent specimens and their offspring is not contested. Thus, the applicant’s right to property  is not infringed, only restricted.

23.      The referring court points out that the decisive issue in the present case is whether the definition of ‘breeding stock’ under Article 1(3) of Regulation No 865/2006 comprises all the animals in a specific breeding operation that are used for reproduction. If the Court were to interpret that definition broadly, including the grandparent specimens not kept by the applicant, then the second question referred becomes devoid of purpose.

24.      However, should the Court give a narrow interpretation of the concept of ‘breeding stock’, restricted to the specimens within a specific breeding operation, then it would be necessary to answer the second question referred. By that question, the referring court seeks to ascertain whether the concept of ‘[establishment]’ of the breeding stock, referred to in Article 54(2) of Regulation  No 865/2006, covers only the lawful acquisition of the specimens concerned or whether it also covers the beginning of the breeding line.

25.      In that regard, the referring court considers that the interpretation according to which the concept of ‘establishment’ covers the beginning of the breeding line of the specimens concerned prevents the legitimisation  of ‘questionable’ stocks by means of ‘dishonest’ transfers. On the other hand, that court notes that a ‘dishonest’ transfer is not possible within the European Union. Indeed, it takes the view that under the legislative framework currently in force it is impossible lawfully to acquire specimens of the animals listed in Annex A to Regulation No 865/2006 without obtaining an exemption. Furthermore, if the examination of the entire breeding line were permitted, it would place unrealistic requirements on owners of protected animals, obliging them to prove the legitimacy of a long and undefined genealogical line.

26.      By its third question, the referring court seeks to ascertain whether individual circumstances, such as the lawful acquisition of the parent specimens by the applicant and his legitimate expectations that he could trade the offspring, at least in the Czech Republic,  may be taken into account. The referring court notes, in that regard, that even if CITES were applicable in the Czech Republic at the time of the acquisition, the national implementing legislation did not require the issuance of a certificate in the event of a national transfer. Moreover, the stricter EU legislation, which requires the issuance of such a certificate in the case of a transfer within the European Union as well as within the same Member State, was not applicable at the time when the transfer of the parent specimens took place.

27.      Under these circumstances, the Nejvyšší správní soud (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Does “breeding stock”, as defined by [Regulation No 865/2006], include specimens that are the parents of specimens bred by a given breeder, even though that breeder never owned or kept them?
(2)      If the answer to the first question is that such parent specimens do not constitute a part of the breeding stock, are competent bodies authorised to verify, in examining compliance with the condition set  out in Article 54(2) of [Regulation No 865/2006], consisting of the establishment of stock lawfully and, at the same time, in a manner not detrimental to the survival of wild specimens, the origin of those parent specimens and to infer on that basis whether the breeding stock has been established in accordance with the rules set out in Article 54(2) of the Regulation?
(3)      In examining compliance with the condition set out in Article 54(2) of [Regulation No 865/2006], consisting of the establishment of stock legally and, at the same time, in a manner not detrimental to the survival of wild specimens, can further circumstances of the case be taken into consideration (in particular, good faith in the transfer of the specimens and the legitimate expectation that trading in their potential offspring will be permitted, and potentially also the less stringent legislation applicable in the Czech Republic prior to the country’s accession to the European Union)?’
 Analysis

 Question 1

28.      By its first question, the referring court is asking, in essence, whether the concept of ‘breeding stock’, within the meaning of Article 1(3) of Regulation No 865/2006, covers the parents of specimens bred by a given breeder that he or she did not own or keep.

29.      In that regard, I note, as a preliminary point, that qualifying animal specimens as having been ‘born and bred in captivity’ has important consequences with regard to their protection status.  Indeed, whereas,  pursuant to Article 8(1) of Regulation No 338/97, the trade of specimens of species listed in Annex A to that regulation is prohibited, Article 8(3)(d) of that regulation provides that captive-born and -bred specimens of an animal species may qualify for an exemption  from the prohibition of trade (the ‘captive-bred exemption’). The competent management authority issues a certificate to that effect (the ‘sales exemption certificate’).

30.      Article 54 of Regulation No 865/2006 sets out a number of conditions that have to be satisfied in order for the management authority to consider that the specimens are born and bred in captivity. According, more particularly, to Article 54(2) of that regulation, that  authority has to be satisfied that ‘the breeding stock was established in accordance with the legal provisions applicable to it at the time of acquisition and in a manner not detrimental to the survival of the species concerned in the wild’.

31.      In the present case, it is undisputed that the parents of the specimens acquired by the applicant (in other words, the grandparents of the  youngest generation of parrots) do not satisfy the conditions set out in Article 54(2) of Regulation No 865/2006. Indeed, the grandparent specimens  were caught in the wild and were imported into the Czech Republic under suspicious circumstances. However, the applicant states that the concept of ‘breeding stock’ should not include specimens which were never owned by him or kept in his breeding operation. It is his submission that the authorities should examine the requirements for granting an exemption from  the prohibition of trade in view of the legal status of only the specimens kept in his own breeding operation.

32.      It is in that context that the referring court seeks to ascertain the scope of the concept of ‘breeding stock’ within the meaning of Article 1(3) of Regulation No 865/2006. Should that concept be  interpreted as covering all specimens used for the purposes of breeding that line irrespective of the operation  in which they are kept, then the other two questions need not be considered. The authorities must take into account by definition  the ancestry of the breeding stock  when they examine its establishment, within the meaning of Article 54(2) of that regulation.

33.      According to the Court’s settled case-law, for the purpose of interpreting a provision of EU law it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part. (11)

34.      As far as concerns the wording  of Article 1(3) of Regulation No 865/2006, it defines the concept of ‘breeding stock’ as ‘all the animals in a breeding operation that are used for reproduction’.

35.      The referring court,  as well as the European Commission in its observations, takes the view that the wording of the definition of ‘breeding stock’ covers exclusively the animals held in a specific breeding operation. Indeed, the definition refers to animals kept in ‘a’ breeding operation and not in any breeding operation.

36.      A comparative examination of various language  versions lends support to that interpretation. The French version refers to ‘un  établissement d’élévage’, the Spanish version to ‘un establecimiento’, the German version to ‘einem Zuchtbetrieb’  and the Latvian version to ‘dzīvnieki audzētavā’. (12)

37.      However,  the textual interpretation is not conclusive to the extent that  some other language versions of Article 1(3) of Regulation No 865/2006 suggest that the concept of ‘breeding stock’ means all the animals in a breeding ‘process’. (13) Moreover, the Slovak Republic considers that the term ‘operation’ used in the English version  connotes  a ‘reproduction process’ and not a specific  breeding operation.

38.      In view of the apparent disparity  between the equally authentic language versions of Article 1(3) of Regulation No 865/2006, it is necessary to examine the context in which that provision is set out, as well as the objectives pursued by it and the legislation of which it forms part. (14)

39.      With regard to the context  of Article 1(3) of Regulation No 865/2006, it must be recalled that, as follows from the first recital of that regulation, its objective is, inter alia, to ensure full compliance with the provisions of CITES. Therefore, for the purpose of interpreting that regulation, it is necessary to consider the provisions of CITES, including the resolutions adopted by the Conference of the Parties to CITES (‘Resolution Conf.’), which help to clarify the interpretation of the provisions of that convention. (15)

40.      In that regard, I would make the following observations.  On the one hand, the  definition of the concept of ‘breeding stock’ under Regulation No 865/2006 is almost identical to the definition adopted by Resolution Conf. 10.16.  That resolution specifies that ‘the “breeding stock” of an operation means the ensemble of the animals in the operation that are used for reproduction’. (16) The use of the definite article ‘the’ before the nouns ‘animals’ and ‘operation’  would seem to suggest  that the concept of ‘breeding stock’ should be understood to cover all animals used for reproduction in a specific breeding operation and not by various breeders in an indefinite number of operations.

41.      On the other hand, under the terms of Resolution Conf. 12.10, (17) an ‘operation’ may only be registered according to the procedure it sets out if specimens produced by that operation qualify as having been ‘bred in captivity’ according to the provisions of Resolution Conf. 10.16. (18) The terms of the former resolution and its  annexes provide sufficiently clear indications that the captive-breeding operation cannot be understood as meaning a ‘process’. (19)

42.      For the sake of completeness, it may be helpful to observe that even in other fields of law, and more particularly in EU agricultural law, the term ‘breeding operation’ is understood in a similar way.  Regulation (EU) 2016/1012 (20) defines the term ‘breeding operation’ as ‘any breeders’ association, breeding organisation, private undertaking operating in a closed production system or public body’.

43.      Consequently, consideration of the context of which Regulation No 865/2006 forms part confirms the interpretation that the concept of ‘breeding stock’, within the meaning of Article 1(3) of that regulation, covers all the animals in a specific breeding operation. That same concept does not cover the parents of specimens bred by a given breeder which he or she did not own or keep.

44.      As regards the objective pursued by Article 1(3) of Regulation No 865/2006 and the legislation of which it forms part, those also support a more restrictive understanding of the term ‘breeding stock’.  The definition of the scope of that concept has repercussions on the determination of the object of the evaluation by the authorities when they carry out the assessment as to whether the breeding stock was established in accordance with the conditions set out in Article 54(2) of Regulation No 865/2006. The object  of the evaluation  should be specific, precise and concrete.

45.      From that perspective, even if the interpretation put forward by the Slovak Republic – that the English term ‘breeding operation’ connotes a ‘process’ – were accepted, quod non, it seems clear to me that such a process could not be unlimited, but should be understood as having definite boundaries  within a specific operation.

46.      The Slovak Republic argues, however, that the consideration of the overall objective pursued by Regulation No 865/2006, consisting in the protection of endangered species,  should lead to a different conclusion. In my view, the objective pursued by that  regulation cannot lead to an interpretation of the concept of ‘breeding stock’ which would be inconsistent with the meaning of such a concept in the legislative context of which it forms part. In any event, the interpretation I propose of the concept of ‘breeding stock’ does not compromise the realisation of the objective of the protection of endangered species. As I will develop in the framework of the second and third questions, that objective is taken into account in order to acknowledge that  the competent management authority has the power to examine the ancestry of the breeding stock  when it determines whether a  specimen of an animal species qualifies for the captive-bred exemption.

47.      In the light of the above, I conclude that the concept of  ‘breeding stock’, within the meaning of Article 1(3) of Regulation No 865/2006,  covers all the animals kept in a specific breeding operation. Therefore, that concept does not cover, as such, the parents of specimens bred by a given breeder that he or she did not own or keep.
 Questions 2 and 3

48.      By its second  and third questions, the referring court asks, in essence, on the one hand, whether the competent management authority has the power to verify the origin of the breeding stock in order to satisfy itself that it was established lawfully and in a manner not detrimental to the survival of the species concerned in the wild, within the meaning of Article 54(2) of Regulation No 865/2006. On the other hand, it asks whether, in the framework of that assessment, the specific  circumstances of the case, such as the good faith of the breeder and his legitimate expectations that trading in offspring will be permitted, as well as the less stringent legislation applicable in the Czech Republic prior to that country’s accession to the European Union, are decisive.

49.      As I will attempt to demonstrate in my analysis, the authorities should have the power to verify the origin of the breeding stock. In circumstances where they are not satisfied that the conditions set out in Article 54(2) of Regulation No 865/2006 are met, the authorities should then have the power to refuse to grant an exemption from the prohibition of trading. In my view,  considering the general rule of prohibiting  the trade of endangered species, the authorities should have every means at their disposal in order to investigate  where there are risk indicators and not to turn a blind eye.
 (a) On the power of the management authority to establish the ancestry of the breeding stock

50.      It should be borne in mind at the outset that, according to the Court’s settled case-law, (21) for the purpose of interpreting a provision of EU law it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part.

51.      As regards, in the first place, the text  of Article 54(2) of Regulation No 865/2006, it should be noted that that provision uses the concept of ‘[establishment]’ of the breeding stock, which is quite broad. It can, therefore, be understood as involving the examination of events that occurred in the past and,  more particularly,  the ancestry  of the specimens.

52.      As regards, in the second place, the context of that provision, it is important to recall, firstly,  that Article 8(1) of Regulation No 338/97 sets out a general rule prohibiting all commercial use of specimens of the species listed in Annex A to that regulation. The exemptions provided for under Article 8(3) of that regulation, including the exemption in relation to captive-born and -bred specimens of an animal species,  may be granted, on a case-by-case basis. The prohibition  of trading  endangered species reflects a fundamental principle of CITES, according to which trade in specimens of species threatened with extinction must be authorised only ‘in exceptional circumstances’. (22) Given that the prohibition of trading endangered species is the rule, whereas  the granting of an exemption from that rule with regard to captive-born species is the exception, that exception must be interpreted strictly.

53.      Next, Article 8(3)(d) of Regulation No 338/97 authorises, but does not require, exemptions from the prohibition it lays down. (23) It clearly follows from that provision that the granting of the captive-bred exemption is only an option for the Member States. (24)

54.      In that regard, it is important to point out that it follows from the case-law of the Court that, as regards species covered by Annex A to Regulation No 338/97, the Member States are allowed to lay down a general prohibition in their territory of all commercial use of captive-born and -bred specimens. (25) If that is so, it should a fortiori  be considered that where  exemptions from the prohibition of trade  of listed species are authorised, the authorities enjoy a wide margin of discretion as to the methods they use in order to examine whether specimens qualify for exemption.

55.      Lastly, it should be pointed out that Article 55 of Regulation No 865/2006  provides that a competent authority is to have  the discretion to require the analysis of samples in circumstances where, for the purposes of Article 54, it considers it necessary to establish the ancestry of a specimen through the analysis of blood or other tissue. That provision lends support to the conclusion that the authorities have the power to examine the ancestry of the breeding stock in order to reach their finding with regard to the fulfilment of the conditions set out under Article 54(2) of that regulation.

56.      As regards, in the third place, the objective of Regulation No 865/2006, it must be borne in mind that it implements Regulation No 338/97. The purpose of the arrangements introduced by those regulations in order to protect specimens of species listed in Annex A to Regulation No 338/97 is to ensure the fullest possible protection for species of wild fauna and flora through controls on trade in such species, in compliance with the objectives, principles and provisions of CITES. (26) The interpretation according to which the authorities have the power  to examine the ancestry of the specimens in the framework of an application for a sales exemption certificate  contributes to the attainment of the objective pursued by those regulations.

57.      I also find it particularly relevant to point out that the conditions for the qualification of a specimen of an animal species as having been born and bred in captivity,  as set out in Article 54(2) of Regulation No 865/2006,  correspond to the ones set out in paragraph 2(b)(ii)(A) of Resolution Conf. 10.16. That resolution was adopted in view of the concern that ‘much trade in specimens declared as bred in captivity remains contrary to [CITES] and to Resolutions of the Conference of the Parties, and may be detrimental to the survival of wild populations of the species concerned’. The interpretation according to which the authorities have the power to verify the origin of the breeding stock is consistent with the intentions of the Conference of the Parties to CITES to strengthen the protection of specimens bred in captivity.

58.      Any other interpretation would be liable to run counter to the objectives mentioned above. As the referring court, the European Commission, the Czech Republic and the Slovak Republic have pointed out in their written observations, it is necessary to prevent the risk of an easy ‘legitimisation’ or ‘laundering’ of  illegally traded specimens. Indeed, it would suffice for a breeder to acquire the offspring of a specimen caught in the wild for their future trade to be rendered lawful. (27) From that perspective, I do not find the statement of the referring court convincing in that a ‘dishonest’ transfer is not possible within the European Union.

59.      In  the light of the above, I take the view that the authorities have the power to examine the ancestry of the breeding stock for the purpose of determining its establishment within the meaning of Article 54(2) of Regulation No 865/2006.
 (b) On the practical aspects and the burden of proof for establishing the ancestry of the breeding stock

60.      It is important to address, at this stage, the concerns expressed by the referring court with regard to practical aspects of the examination by the authorities of the ancestry of the breeding stock. Those doubts correspond, to some extent, to the arguments put forward by the applicant in his written observations.

61.      I agree with the Czech Republic and the Commission, which point out in their written observations and in answer to a question  put by the Court, that that examination by the authorities  may be extended to cover the moment when the first specimens were removed from the wild. As observed in point 51 of the present Opinion, the term ‘[establishment]’ of the breeding stock employed in Article 54(2) of Regulation No 865/2006 is very broad. Its scope can therefore include the examination of the entire breeding line up to the specimens taken from the wild. Moreover, as the Commission rightly points out in its response to a question put by the Court, the term ‘ancestry’ employed in Article 55 of Regulation No 865/2006 is broader than the term ‘parents’ employed in Article 54(1)(a) of that regulation. The term ‘ancestry’ would seem, therefore, to suggest that the authorities should have the power to extend their investigation  to the point in time when specimens were removed from the wild, as was the case with the grandparent specimens in question.

62.      The length of time that may have lapsed since the founder stock was removed from the wild is not, in my view, decisive  as such in circumstances where the proposed activity involves trade. Regulation No 338/97 already provides for a specific situation under which the authorities may decide to grant an exemption in view of the lapse of time. That situation concerns ‘worked specimens that were acquired more than 50 years previously’ (28) within the meaning of Article 2(w) of Regulation No 338/97.  However, the specimens in question do not fall within the scope of that provision.

63.      The applicant contends that the requirement to prove the legitimacy of the entire breeding line gives rise to an unreasonable  burden of proof. I am not convinced  that that is the case.

64.      In that regard, it should be recalled, as was stated in point 30 of the present Opinion, that Article 54(2) of Regulation No 865/2006 sets out two  conditions with regard to the establishment of the breeding stock which the administrative authorities have to assess. The first one relates to the establishment of the breeding stock ‘in accordance with the legal provisions applicable to it at the time of the acquisition’  (the ‘legal acquisition finding’). The second one relates to the establishment of the breeding stock ‘in a manner not detrimental to the survival of the species concerned in the wild’  (the ‘non-detriment finding’). Those two determinations are not specific to the question as to whether specimens are to be considered as having been born and bred in captivity;  they reflect a general approach to the regulation of trade set out by Regulation No 338/97 and CITES. (29)

65.      In the framework of the determinations carried out by the authorities, according to Article 54(2) of Regulation No 865/2006, it is important to observe that an examination of ancestry appears to be common practice, as the Czech Republic and the European Commission have underlined in their written observations.

66.      The Czech Republic and the European Commission explain, in essence, that  breeders do not systematically have to prove the legitimacy of the entire ancestry of the breeding stock. The authorities carry out a risk assessment depending on the circumstances of each case. (30) In carrying out such an assessment, ‘the degree of risk to the species (risk of detriment, illegal trade involvement etc.)’ should  ‘determine[…] the degree of scrutiny’. (31) The European Commission, in its written response to a  question put by the Court, gives certain examples of relevant risk indicators  on the basis of which the authorities should pay particular attention. Such risk indicators include the following: a sudden increase in or significant volume of trade in specimens declared in captivity; a declaration of specimens as bred in captivity from operations the level of annual production of which exceeds the normal level taking into account the size of the parental population and the potential for reproduction of the species concerned; specimens whose size and condition do not comply with the reproduction data supplied; or the existence of doubts with regard to the legal origin of the founder stock which could have been acquired before the country in which it is located became a party to CITES. The European Commission also submitted that it is currently cooperating with the Member States in drawing up a guidance document with relevant examples of risk indicators.

67.      The European Commission also pointed out that when the authorities assess whether to grant a sales exemption certificate, they take into account the chain of custody  requirements. (32) That examination involves the documentation regarding the lawfulness of the acquisition of the breeding stock. In that context, it does not appear unreasonable to require the breeder to be able to prove the lawfulness of the acquisition on the basis of breeding records. What is more, the European Commission explained, in reply to a question put by the Court, that if the documentation does not exist, the proof of lawfulness of the chain of custody remains possible by other means.

68.      It should also be borne in mind that with regard to specimens of species listed in Annex B to Regulation No 338/97, the Court has ruled that the task of determining what evidence  may establish that the condition of lawful acquisition of those specimens has been met is left to the competent authorities of the Member States. (33) I consider that the same reasoning should apply by analogy with regard to specimens of species listed in Annex A to that same regulation, taking into account the fact that  the latter does not specify what evidence may establish the lawful acquisition of those specimens.

69.      With regard to the  point of reference for the legal acquisition finding, it follows from the terms of Article 54(2) of Regulation No 865/2006 that the authorities would need to take into account the legal provisions that were applicable at the date of acquisition of each specimen  as they move from generation to generation.  With regard to the point of reference for the non-detriment finding, it must be observed that it is not specifically determined in that provision. In the absence of such a determination, the point of reference could be considered to be the same as for the legal acquisition finding, that is to say,  the date of acquisition of the original specimens. However, the non-detriment finding is quite broad and may include a number of methods of assessment. (34) The nature of the determination involved appears to be more compatible with a consideration of the evolution of the species over a period of time, instead of a specific date. From that perspective, it seems more appropriate to avoid setting limits. I would, therefore, agree with the Commission’s approach set out in a response to a question put by the Court, that in order to make a valid finding, the authorities should be able to take into account the status of the species  at the time of the assessment. Such an interpretation ensures that the ‘best available scientific information is the basis for non-detriment findings’. (35)

70.      My final remark with regard to the determinations carried out by the authorities is that they must, in any event, comply with the principle of EU law relating to good administration, which entails requirements that must be met by the Member States when they implement EU law. Among those requirements, the obligation to state reasons for decisions adopted by the national authorities is particularly important, since it puts their addressee in a position to defend his or her rights and decide in full knowledge of the circumstances whether it is worthwhile to bring an action against those decisions. It is also necessary in order to enable the courts to review the legality of those decisions and it is therefore a requirement for ensuring that the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) is effective. (36) In the present case, there are no elements in the file demonstrating a breach of the obligation to state reasons or any other irregularity in the procedure followed by the  competent management authority. That authority refused to grant an exemption to the trade of the specimens in question, relying on the recommendation by the scientific authority that that exemption not be granted.

71.      In view of the above, I consider that acknowledging that the competent management authority has the power to examine the origin of specimens when it assesses whether to grant a sales exemption certificate  does not amount to imposing on the breeders an unreasonable burden of proof.
 (c) The relevance of the particular circumstances of the case on the assessment of the conditions set out in Article 54(2) of Regulation No 865/2006

72.      The last point of my analysis will address the issue raised by the third question of the referring court in relation to the relevance of the particular circumstances of the case on the assessment of the conditions set out in Article 54(2) of Regulation No 865/2006. According to the referring court, such particular circumstances include the (ostensible) legitimate expectations of the breeder as to his right to trade the offspring of the grandparent specimens, his good faith as to the lawfulness of the acquisition and the less stringent legislation applicable in the Czech Republic prior to the country’s accession to the European Union.

73.      In my view, none of the abovementioned circumstances justify, by themselves, the management authority adopting a more lenient approach and granting an exemption that would allow the specimens in question to be traded.

74.      To begin with, the conditions set out in Article 54(2) of Regulation No 865/2006 that the authorities have to assess  in order to qualify specimens as having been born and bred in captivity  do not relate to the breeder but to the establishment of the breeding stock.  Moreover, those conditions are cumulative. Even if the authorities conclude that the establishment of the breeding stock was lawful at the time of the acquisition, that finding alone does not suffice to grant an exemption. What is more, as I pointed out above, (37) in order for the management authority to make a valid non-detriment finding it needs to take into account updated evidence on the state of the species.

75.      Under those conditions, I am of the view that the existence of a less stringent applicable legislative framework at the time of the acquisition of the breeding stock prior to the country’s accession to the European Union (38) is not a reason for the management authority to grant an exemption from the prohibition of trading the specimens in question. It should also be pointed out that, at the time of the acquisition of the specimens in question, CITES was already applicable in the Czech Republic. Furthermore, the applicant did not claim that the specimens in question qualify for the exemption applicable to ‘pre-convention specimens’, that is to say, specimens of listed species acquired before CITES applied to them. (39)

76.      More particularly, as regards the alleged legitimate expectations of the breeder, CITES ‘in no way’ affects the right of the parties to adopt stricter domestic measures regarding the conditions for the trade of species included in Appendix I to that convention ‘or [even] the complete prohibition thereof’. (40) Therefore, traders should not be entitled to expect that the legislative framework will remain the same when they decide to trade specimens that fall under the general rule establishing a prohibition set out in CITES.  Instead, the breeders have to demonstrate due diligence when they intend to engage in such trade. (41)

77.      The referring court asks whether the fact that the applicant cannot trade the specimens in question interferes with his right to property within the meaning of Article 17 of the Charter. However, according to settled  case-law, (42) the right to property is not an absolute right and must be viewed in relation to its social function. Consequently, its exercise may be restricted, provided that those restrictions in fact correspond to objectives of general interest and do not constitute, in relation to the aim pursued, disproportionate and intolerable interference, impairing the very substance of the right guaranteed. As regards the general interest objectives referred to above, the protection of wildlife is one of them (43) and is therefore capable of justifying a restriction on the exercise of the right to property. As regards the principle of proportionality, it is sufficient to state that Regulation No 338/97 and Regulation No 865/2006 operate a balance between the requirements of that right and the requirements linked to the protection of wildlife. Consequently, I take the view that the applicant’s right to property is not infringed.

78.      It is also relevant to point out that the applicant was permitted to keep the specimens and that he was not subject to any kind of administrative or criminal sanction. The present case does not seem to require, therefore, further analysis with regard to the respect of the principle of proportionality.

79.      Nevertheless, the applicant claims that his breeding activity has a positive impact on the environment. In his view, the trade of the captive-bred specimens in question leads to a decrease in the demand for the illegal acquisition of specimens caught in the wild. That is, in my view, an unsubstantiated claim. Article 8(3)(f) of Regulation No 338/97 provides, in particular, that an exemption may be granted from the prohibition of trade where the specimens ‘are intended for breeding or propagation purposes from which conservation benefits will accrue to the species concerned’. However, it does not appear from the file  nor has it been argued before the Court that the breeder asked the authorities for an exemption based on that provision. In any event, as the Czech Republic has observed in its written response to a question put by the Court, that provision presupposes that the proposed activity has concrete conservation benefits, such as where there is participation in conservation projects operated by zoos or where the specimens are returned to the wild.

80.      My final remark concerns the relevance of the length of time that has lapsed since the founder stock was removed from the wild. As alluded to in point 62 of the present Opinion, that factor should not be decisive as such where the risk assessment has led the authorities to conclude against the granting of an exemption. The general rule prohibiting  commercial activities involving listed specimens is not limited in time. For the sake of completeness, I wish to point out once more that the present case does not involve criminal proceedings; were that to be the case,  the principle of limitation would apply.  What is more, from the perspective of civil law, it must be observed that the lawfulness of acquisition of the specimens in question is not contested.

81.      In view of the above, I do not consider that the specific circumstances of the case, such as the ones exposed by the referring court, are relevant in the context of the examination by the authorities of the conditions set out under Article 54(2) of Regulation No 865/2006.
 Conclusion

82.      In the light of the foregoing, I propose that the questions referred be answered as follows:
(1)      The concept of ‘breeding stock’, within the meaning of Article 1(3) of Commission Regulation No 865/2006 of 4 May 2006 laying down detailed rules concerning the implementation of Council Regulation No 338/97, as amended by Commission Regulation (EU) 2015/870 of 5 June 2015, covers all the animals kept in a specific breeding operation. That concept does not cover the parents of specimens bred by a given breeder that he or she did not own or keep.
(2)      The competent management authority has the power to verify the origin of the breeding stock in order to satisfy itself  that it was established lawfully and in a manner not detrimental to the survival of the species concerned in the wild, within the meaning of Article 54(2) of Commission Regulation (EC) No 865/2006. For the purpose of that assessment,  the specific circumstances of the case, such as the good faith of the breeder and his or her  legitimate expectations that trading in offspring will be permitted, as well as the less stringent legislation applicable in the Czech Republic prior to that country’s accession to the European Union, are not decisive.

1      Original language: English.

2      Signed in Washington (United States), on 3 March 1973 (United Nations Treaty Series, Vol. 993, No I-14537).

3      Bowman, M., ‘A Tale of Two CITES: Divergent Perspectives upon the Effectiveness of the Wildlife Trade Convention’, Review of European, Comparative & International Environmental Law, Vol. 22, 2013, p. 228, citing Davies, P.,  in Bowman, M., Davies, P. and Redgwell, C., Lyster’s International Wildlife Law, 2nd edition, Cambridge University Press, Cambridge, 2010, pp. 484 and 533.

4      As recognised by the Resolution of the Conference of the Parties 11.3 ‘Compliance and enforcement’.

5      Nellemann, C. et al. (ed.), The Rise of Environmental Crime – A Growing Threat to Natural Resources, Peace, Development and Security, A UNEP‑Interpol Rapid Response Assessment, UNEP, 2016, p. 7.

6      United Nations Office on Drugs and Crime, World Wildlife Crime Report 2020: Trafficking in protected species, United Nations, New York, 2020, p. 3.

7      Ibid.

8      Council Regulation of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (OJ  1997 L 61, p. 1), as amended by Commission Regulation (EU) No 1320/2014 of 1 December 2014 (OJ  2014 L 361, p. 1).

9      Commission Regulation of 4 May 2006 laying down detailed rules concerning the implementation of Council Regulation No 338/97 (OJ  2006 L 166, p. 1), as amended by Commission Regulation (EU) 2015/870 of 5 June 2015 (OJ  2015 L 142, p. 3).

10      Council Regulation of 3 December 1982 on the implementation in the Community of the Convention on international trade in endangered species of wild fauna and flora (OJ  1982 L 384, p. 1)

11      Judgment of 8 December 2020, Staatsanwaltschaft Wien (Ordres de virement falsifiés) (C‑584/19, EU:C:2020:1002, paragraph 49).

12      Emphasis added.

13      I refer, more particularly, to the Slovenian, Greek and Croatian versions.

14      See,  to that effect, judgment of 24 March 2021, A (C‑950/19, EU:C:2021:230, paragraphs 37 and 38).

15      See, by analogy, judgment of 12 May 2021, Hauptzollamt B (Sturgeon caviar) (C‑87/20, EU:C:2021:382, paragraphs 30 and 31). 

16      Resolution Conf. 10.16, paragraph 1(c).

17      That resolution is headed ‘Registration of operations that breed Appendix-I animal species in captivity for commercial purposes’. It is not implemented in the European Union, which means that registration of commercial captive-breeding operations with the CITES Secretariat is not a requirement to trade in the European Union. That being said, that resolution can be used as a reference point with regard to the understanding of the term ‘breeding operation’.

18      Resolution Conf. 12.10, paragraph 5(a).

19      By way of example, Annex 1 to Resolution Conf. 12.10 sets out the information to be provided to the Secretariat by the management authority on operations to be registered, which includes the name and address of the owner and manager of the captive-breeding operation, the date of establishment, and the description of the facilities to house the stock. Annex 3 to that same resolution provides a sample application form, which requires, inter alia, an indication of the contact details of the owner and manager of the captive-breeding operation.

20      Regulation of the European Parliament and of the Council of 8 June 2016 on zootechnical and genealogical conditions for the breeding, trade in and entry into the Union of purebred breeding animals, hybrid breeding pigs and the germinal products thereof and amending Regulation (EU) No 652/2014, Council Directives 89/608/EEC and 90/425/EEC and repealing certain acts in the area of animal breeding (‘Animal Breeding Regulation’) (OJ  2016 L 171, p. 66).

21      See footnote 11 above.

22      Article II(1) of CITES.

23      Judgment of 23 October 2001, Tridon (C‑510/99, EU:C:2001:559, paragraph 34).

24      See, to that effect, judgment of 23 October 2001, Tridon (C‑510/99, EU:C:2001:559, paragraph 30).

25      See, to that effect, judgment of 23 October 2001, Tridon (C‑510/99, EU:C:2001:559, paragraph 41).

26      See, to that effect, judgment of 4 September 2014, Sofia Zoo (C‑532/13, EU:C:2014:2140, paragraph 34).

27      See Lieberman, S., ‘Procedures used by the United States of America in making CITES non-detriment findings’,  in  Rosser, A., Haywood, M., Guidance for CITES Scientific Authorities: Checklist to Assist in Making Non-detriment findings for Appendix II Exports, IUCN – The World Conservation Union, Gland, Switzerland and Cambridge, UK, 2002, p. 32, who observes, in relation to the procedures used in the United States: ‘there are … all-too-many cases where animals may themselves be bred in captivity, but the founder stock was not obtained legally, and therefore export of even the progeny would be detrimental to the survival of the species (in that it increases demand and facilitates detrimental trade)’.

28      Article 8(3)(b).

29      See  Article 5(2)(a) and (b) of Regulation No 338/97 and Article IV(2)(a) and (b) of CITES with regard to the conditions for the issuance of an export permit of listed species. See also Resolution Conf. 18.7 ‘Legal acquisition findings’ and Resolution Conf. 16.7 ‘Non-detriment findings’.

30      In the specific context of the legal acquisition finding for the export of CITES-listed species, Resolution Conf. 18.7 defines the term ‘risk assessment’ as the ‘evaluation of the likelihood that a specimen of a CITES-listed species was not legally acquired’.

31      Lieberman, S., op. cit., p. 30.

32      In the specific context of the legal acquisition finding for the export of CITES-listed species, Resolution Conf. 18.7 defines the term ‘chain of custody’  as follows: ‘chronological documentation, to the extent practicable and in accordance with applicable laws and records, of the transactions pertaining to the removal  from the wild of a specimen and the subsequent ownership of that specimen’.

33      Judgment of 16 July 2009, Rubach (C‑344/08, EU:C:2009:482, paragraph 27).

34      See Resolution Conf. 16.7 (Rev. CoP17) ‘Non-detriment findings’.

35      Resolution Conf. 14.2 ‘CITES Strategic Vision: 2008-2013’, Objective 1.5.

36      Judgment of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras (C‑927/19, EU:C:2021:700, paragraph 120).

37      Point 69.

38      See  the explanations of the referring court in that regard in point 26 of the present Opinion.

39      The exemption for pre-convention specimens is provided under Article 8(3)(a) of Regulation No 338/97. See  Davies, P., op. cit. p. 510.

40      Article XIV(1)(a) of CITES.

41      Another matter entirely is whether the authorities would potentially have to provide for transitional measures to allow the traders to adapt. However, the applicant did not claim that his legitimate expectations were infringed on that ground.

42      See judgment of 15 January 2013, Križan and Others (C‑416/10, EU:C:2013:8, paragraph 113).

43      See,  to that effect, judgment of 19 June 2008, Nationale Raad van Dierenkwekers en Liefhebbers and Andibel (C‑219/07, EU:C:2008:353, paragraph 27).