2. WHAT SPECIES ARE COVERED BY THE REGULATIONS, AND IN WHAT WAY?
2.2 The Annexes to Regulation (EC) No 338/97
The implementation of CITES within the EU is governed by EU Regulations, which are directly applicable16 in the Member States. All the relevant Regulations are listed in Section 1.
By default, the EU Wildlife Trade Regulations and CITES cover trade in all specimens of the listed species, whether alive or dead, including parts and derivatives, from animal and plant species listed in the Annexes/Appendices17. Trade is defined in the EU Wildlife Trade Regulations as the introduction into the EU (including “introduction from the sea”) and the export and re-export therefrom, as well as the use, movement and transfer of possession within the EU, including within a Member State, of species listed in the Annexes (see Annex III of this Guide for exact definitions).
The term “trade” therefore encompasses not only trade in a commercial sense but also, for example, imports and (re-)exports for personal use. The species covered by Regulation (EC) No 338/97 are listed in four Annexes (A to D), which are referred to in this Guide as “the Annexes” (note the difference in terminology from the CITES Appendices).
In some cases, entire genera or families are listed, so if you cannot see the name of the species you are looking for in the Annexes, look for it on the database of species maintained by UNEP-WCMC at http://www.speciesplus.net/, where every species in the Regulations can be found. Scientific names change from time to time, and the taxonomic references that determine the current scientific names are set out in Annex VII to this Guide. It is these current scientific names that are found on the Species+ website, however the database also retains the old names so that you do not have to be completely up to date with the changes in taxonomy to find the current scientific name. Although common names are also listed, not all species have common names and they may vary from country to country. Therefore, if you are engaging in a transaction that may involve a CITES-listed species, you should always take care to familiarise yourself with the scientific name, since this is the name that must be entered on relevant documents.
16 Meaning that, unlike for EU Directives, Member States do not need to take action to transpose the EU legislation into national law.
17 See definition of “specimen” in Annex III to this Guide. It is noted that for items such as medicinal products, if the label or packaging states that the ingredients include a listed species, the product shall be taken as containing that particular species (Article 2(t) Regulation (EC) No 338/97).
2.2.1 Annex A
Table 2 shows the number of species and subspecies listed in Annex A of the EU Wildlife Trade Regulations.
Annex A18 contains:
all CITES Appendix I-listed species except those for which EU Member States have entered a reservation (currently not applicable since there are no Appendix I-listed species subject to such a reservation);
any species (listed in CITES Appendix II, III, or non-CITES-listed) that is, or may be, in EU or international demand and which is either threatened with extinction or is so rare that any trade would imperil its survival in the wild19, and
some species listed in CITES Appendix II, III or non-CITES-listed: If most of the species in a genus (or most of the subspecies in a species) are listed in Annex A, the remaining species can also be listed if this is considered to be essential for the effective protection of the species listed in Annex A, in order to exclude commercial trade in the entire genus or species (e.g.
for reasons related to control/enforcement).
Finally, although there is no separate provision in Regulation (EC) No 338/97, CITES-listed species that in 1997 were subject to a trade prohibition under EU legislation on the protection of indigenous species (Directive on the conservation of wild birds20 and the so-called “Habitats Directive”21), are automatically listed in Annex A. The names of these species in Annex A are printed in bold. However, species that came within the remit of those Directives with the later accession of new Member States, or that were added to the Appendices since 1997, are not included in Annex A.
Table 2: Number of species and sub-species listed in Annex A of the EU Wildlife Trade Regulations, updated 16 July 2020
Appendix
Source: adapted from http://www.speciesplus.net/ - data downloaded on 16 July 2020. *Includes 12 (sub-)species which have some populations listed in Annex B. **Each of these species has populations/sub-species listed in Annex B and/or Appendix II of CITES.
Commercial trade from, to and within the EU is, as a general rule, prohibited for wild specimens of species listed in Annex A22. Trade to and from the EU is governed by provisions comparable to those applicable to species listed in Appendix I under CITES.
18 Article 3(1) Regulation (EC) No 338/97.
19 For CITES Appendix III-listed species in Annex A, all populations of the species are subject to the corresponding provisions of the Regulations and not just the populations of the countries that listed them in Appendix III.
20 Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ No. L 20 of 26.01.2010 p.7) (codified version of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, as amended).
21 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ No. L 206 of 22.7.92 p.7).
22 Captive-bred specimens of species listed in Annex A are exempted from this prohibition and can be traded for commercial purposes (see Section 3.6.1).
Reference Guide to the European Union Wildlife Trade Regulations (December 2020) 15
2.2.2 Annex B
Table 3 shows the number of species and subspecies listed in Annex B of the EU Wildlife Trade Regulations.
Annex B23 contains:
CITES Appendix II-listed species (if they are not already included in Annex A);
Appendix I-listed species for which EU Member States have entered a reservation (currently not applicable since there are no Appendix I-listed species subject to such a reservation);
any species (CITES Appendix III-listed, non-CITES-listed) subject to levels of international trade that may not be compatible with the survival of populations in certain countries, or with the maintenance of its total population at a level consistent with its role in the ecosystem24;
some “look-alike” species, whose listing is considered essential for the effective control of trade in other species listed in Annex A or B (see also Section 2.1), and
species (CITES Appendix III-listed, non-CITES-listed) known to pose an ecological threat to species that are indigenous to the EU (currently one species listed25).
Table 3: Number of species and subspecies listed in Annex B of the EU Wildlife Trade Regulations, updated 16 July 2020
Appendix I Appendix II Appendix III Non-CITES Total
Mammals 0 420* 1 0 421*
Birds 0 1213* 0 3 1216*
Reptiles 0 762* 1 1 764*
Amphibians 0 173 0 1 174
Fish 0 114 0 0 114
Invertebrates 0 2189 0 9 2198
Sub-total Animals 0 4871 2 14 4887
Sub-total Plants 1*** 31940** 0 0 31941**
Total 1 36811 2 14 36828
Source: adapted from http://www.speciesplus.net/ - data downloaded on 16 July 2020. *An additional 12 mammal, 1 bird and 6 reptile species have populations/subspecies listed in both Annex A and B; these are counted in the totals for Annex A only to avoid double counting. **All species in the Orchidaceae family are listed in CITES Appendix II, except for the 176 species that are listed in Appendix I. As there is currently no standard agreed nomenclature for the entire Orchidaceae family, for the purposes of this table the number of accepted Orchidaceae species according to The Plant List (www.plantlist.org, Royal Botanic Gardens, Kew, and Missouri Botanical Garden, accessed 17 July 2020; number of accepted Appendix II species: 27641) was used. ***Pachypodium windsorii is included in Species+ in Appendix I on the advice of the CITES Secretariat, as this species split from P. baroni (Appendix I) with the adoption of a new standard reference. The formal Appendices will be updated to reflect this change.
Documentation is required for the import, export and (re-)export of specimens of Annex B-listed species into and from the EU. EU rules on import of Annex B-listed species are stricter than under CITES as import permits are generally required (in addition to export permits) for the import of such specimens into the EU, with some exemptions.
2.2.3 Annex C
Table 4 shows the number of species and subspecies listed in Annex C of the EU Wildlife Trade Regulations.
23 Article 3(2) Regulation (EC) No 338/97.
24 Once again, for Appendix III-listed species listed in Annex B, all populations of the species are subject to the corresponding provisions of the Regulations, and not just the populations of the countries that listed them in Appendix III.
25 Painted Turtle (Chrysemys picta),
Annex C26 contains:
CITES Appendix III-listed species that are not already included in Annex A or B, and
Appendix II-listed species for which EU Member States have entered a reservation. (This is currently not applicable since there are no Appendix II species subject to such reservation).
Where Appendix III-listed species in Annex C are concerned, the species as a whole are subject to the corresponding provisions of the Regulations, and not just the populations of the countries that listed them in Appendix III.
Table 4 Number of species and subspecies listed in Annex C of the EU Wildlife Trade Regulations, updated 16 July 2020
Appendix III Non-CITES Total
Mammals 49 0 49
Birds 25 0 25
Reptiles 85 0 85
Amphibians 4 0 4
Fish 24 0 24
Invertebrates 25 0 25
Sub-total Animals 212 0 212
Sub-total Plants 10 0 10
Total 219 0 219
Source: adapted from http://www.speciesplus.net/ - data downloaded on 16 July 2020.
Species listed in Annex C do not require an import permit. Imports can take place on the basis of a CITES export permit (if coming from a Party that listed the species in Appendix III), a (re-)export certificate, or a certificate of origin (if coming from a Party that did not list the species in Appendix III), together with an import notification (the import notification is not a document required under CITES and is therefore a stricter EU measure). The (re-)export of specimens of Annex C-listed species from the EU requires an export permit or re-export certificate.
2.2.4 Annex D
Table 5 shows the number of species and subspecies listed in Annex D of the EU Wildlife Trade Regulations.
Annex D27 contains:
Non-CITES-listed species that are not listed in Annexes A to C which are imported into the European Union in such numbers as to warrant monitoring, and
Appendix III-listed species for which EU Member States have entered a reservation (there are currently three of these (and four sub-species)28).
Annex D does not have a CITES equivalent. Imports of specimens of Annex D-listed species require an import notification. The Annex D monitoring system is intended to allow the early detection of possible conservation concerns to the species listed and thus is similar to the purpose of Annex B, which aims to ensure sustainable trade in species and thus prevent them from becoming Annex A candidates. Where necessary, Annex D-listed species can be proposed for “up-listing” and brought under the trade provisions applicable to Annex B-listed species. Some former Annex D-listed species have subsequently been added to CITES Appendix II and consequently to Annex B in the EU.
26 Article 3(3) Regulation (EC) No 338/97.
27 Article 3(4) Regulation (EC) No 338/97.
28 As of February 2017.
Reference Guide to the European Union Wildlife Trade Regulations (December 2020) 17
Table 5: Number of species and subspecies listed in Annex D of the EU Wildlife Trade Regulations, updated 16 July 2020
Appendix III Non-CITES Total
Mammals 7 5 12
Birds 0 56 56
Reptiles 0 21 21
Amphibians 0 10 10
Fish 0 1 1
Invertebrates 0 4 4
Sub-total Animals 7 97 104
Sub-total Plants 0 33 33
Total 7 130 137
Source: adapted from http://www.speciesplus.net/ - data downloaded on 16 July 2020.
2.2.5 Annotations
As noted above, CITES and the EU Wildlife Trade Regulations cover, by default, all specimens, whether alive or dead, including parts and derivatives, from animal and plant species listed in the Appendices/Annexes. However, through an annotation to the listing, some parts and derivatives may be specified or exempted from certain provisions.29 Swietenia mahagoni (Caribbean Mahogany), for example, is listed in Annex B, with an annotation that the listing applies to logs, sawn wood and veneer sheets. The trade in other specimens therefore does not fall under CITES and does not require a permit or certificate.
2.2.6 Hybrids
Hybrids between two species are also covered by CITES and the EU Wildlife Trade Regulations, when at least one of the two parents is of a species listed in one of the four Annexes. In cases where the parents of such animal or plant hybrids are of species listed in different Annexes, or of species of which only one is listed in the Annexes, the provisions of the more restrictive Annex apply. However, in the case of hybrid plants where only one parent is of a species listed in Annex A, the provisions of the more restrictive Annex will apply only when the species is annotated to that effect30 (currently there is no such annotation in force31). Hybrid animals that have, in their previous four generations of the lineage, one or more specimens of species included in Annexes A or B are subject to the provisions of Regulation (EC) No 338/97 as if they were full species, even if the hybrid concerned is not specifically included in the Annexes32.
29 Annotations are listed under point 12 in the Notes on interpretation of Annexes A, B, C and D which precedes the Annexes in Regulation (EC) No 338/97.
30 Article 2(t) Regulation (EC) No 338/97.
31 Point 13, Annex to Regulation (EC) No 338/97 (Notes on interpretation of Annexes A, B, C and D).
32 Point 11, Annex to Regulation (EC) No 338/97 (Notes on interpretation of Annexes A, B, C and D).