Can the European Commission prohibit imports of species listed in Annexes A and B? What is the

3.3.9.1 Overview

Article 4(6) of Regulation (EC) No 338/97 provides the Commission with the legal authority to prohibit imports into the EU with regard to certain species and countries. These import prohibitions must be adopted by the whole EU, and cannot be applied by individual Member States. It is therefore essential that import prohibitions are uniformly implemented, i.e. it must be ensured that, at any moment in time, all Member States issue or do not issue import permits for a given species exported from a given country.

Prohibitions of imports into the EU of certain species from certain countries of origin are usually decided after the Scientific Review Group (SRG) (see Section 11.2.2) has formed a “Negative Opinion” on the import of a species from a particular country, and has consulted with the relevant range State(s) on the matter. A Negative Opinion is formed if the import is deemed to have a harmful effect on the conservation status of the species; once a Negative Opinion is issued, import permits cannot be granted for the species from the particular range State.

Negative Opinions by the SRG are of a temporary nature and may be lifted immediately when new information on the trade or conservation status of the species in the country of concern is provided and addresses concerns raised. However, if such imports continue to be of concern and the range State in question has not provided information proving otherwise, the European Commission can prohibit imports on a long-term basis by adopting the so-called “Suspensions Regulation” which is published in the Official Journal of the European Union.

 A Negative Opinion may be triggered by concerns raised by one or more Member State or by the SRG with regard to the conservation impact of trade in a species from a particular range State, following an assessment of compliance with the relevant conditions contained in Article 4(1) and (2) of Regulation (EC) No 338/97. According to these provisions, import permits cannot be granted (even when all other relevant provisions are met) if the competent Scientific Authority, after considering any Opinion by the Scientific Review

124 Article 11(1) Regulation (EC) No 865/2006 125 Article 11(5) Regulation (EC) No 865/2006

Reference Guide to the European Union Wildlife Trade Regulations (December 2020) 33

Group, has advised that the introduction into the EU would have a harmful effect on: the conservation status of the species, or

 the extent of the territory occupied by the relevant population of the species (see Section 3.3.9.2 for further explanation).

Longer-term prohibitions of import do not always require the prior establishment of a Negative Opinion by the SRG, and the Commission may also establish an import prohibition in the following cases (see also Section 3.3.9):

 for species listed in Annex A or B, on the basis of other factors relating to the conservation of the species which militate against import into the EU¹²⁶;

 if it concerns live specimens of species listed in Annex B which have a high mortality rate during transportation or are unlikely to survive in captivity for a considerable proportion of their potential life span¹²⁷; or

 if it concerns live specimens of species that present an ecological threat to wild species of fauna and flora indigenous to the EU¹²⁸ - the species currently subject to an import restriction on these grounds is the Painted Turtle (Chrysemys picta),¹²⁹.

3.3.9.2 What criteria are considered by Scientific Authorities and the SRG when making non-detriment findings, deciding on import prohibitions and forming Negative Opinions?

One of the tasks of the Scientific Authority under Article 4(1) or (2) of Regulation (EC) No 338/97 is to advise its Management Authority on whether the import of certain specimens of species listed in Annex A or B is likely to have a harmful effect on the conservation of the species (see also the tabular summary in Section 3.3.10). This is termed a “non-detriment finding” (NDF) and is also a requirement under CITES. The Guidelines on Duties and Tasks of the Scientific Authorities and Scientific Review Group under Regulation (EC) No 338/97 and Regulation (EC) No 865/2006 (see Annex XII of this Guide and its attachments) present a more detailed overview of the factors and conditions that must be considered by a Scientific Authority when making NDFs. They include for example:

 the biological status of the species (abundance, present distribution, population trends, etc.);

 the species’ life history (which can contribute to its vulnerability – e.g. a long maturation period before reaching reproductive age);

 harvest characteristics (volumes, trends, etc.);

 risk of mortality after capture and before export (live specimens);

 management regimes and monitoring programmes that are in place, and

 current or anticipated trade levels (trade history, use of export quotas, demand in the EU, etc.).

In addition, they include questions related to whether there are any other factors that mitigate against the issuance of an import permit, such as recommendations made by the Animals or Plants Committee, or concerns about the accuracy of statements on the export permit.

With regard to the import of Annex A specimens, the Management Authority must also be satisfied that the import is taking place for certain purposes only and must consult the Scientific Authority in this regard. For example, the import may be taking place for breeding or propagation purposes that will have conservation benefits for the species, or for other purposes which are not detrimental to

126 Article 4(6)(a) and (b) Regulation (EC) No 338/97 127 Article 4(6)(c) Regulation (EC) No 338/97 128 Article 4(6)(d) Regulation (EC) No 338/97

129 Commission Implementing Regulation (EU) No 2019/1587 of 24/09/2019 prohibiting the introduction into the Union of specimens of certain species of wild fauna and flora (the Suspensions Regulation).

the conservation of the species, such as well-managed trophy hunting programmes (see Annex XII of this Guide)¹³⁰.

3.3.9.3 How are Negative Opinions and import restrictions established?

The usual procedures for the establishment of a Negative Opinion and, where necessary, a subsequent import prohibition for species listed in Annex A or B is described in the following paragraphs (see also Figure 3).

Step 1: Making a non-detriment finding at the national level¹³¹

If a Scientific Authority of a Member State advises its Management Authority under Article 4(1) or (2) of Regulation (EC) No 338/97 not to authorise imports of certain specimens on the basis that to allow such imports would be detrimental to the conservation of the species¹³², it must be immediately ensured that no import permits are issued on the basis of Article 4(1) or (2) by any of the other Management Authorities in the EU. The Commission must therefore be informed immediately of any decision taken by a Management Authority not to authorise a particular import on this basis (Letter A in Figure 3) and, in turn, must instruct all other Member States to refrain from issuing import permits under Article 4(1) or (2) until the advice of the other Scientific Authorities can be sought, for example, by a written procedure or in a meeting of the SRG (Letter B in Figure 3).

In other cases where a Management Authority has decided to refuse the import of certain specimens under Article 4(1) or (2) (i.e. for reasons other than detriment to the conservation status of the species), the Management Authority must immediately inform the Commission of the rejection and the reasons for the rejection in cases of significance in respect of the objectives of the EU Wildlife Trade Regulations¹³³ (see also Section 3.3.4 above). The Management Authority has the discretion to decide what is “significant” for these purposes.

Step 2: Uniform application at the EU level¹³⁴

Once EU Member States have been advised by the Commission to refrain from issuing import permits for a particular species/country combination - for example in response to the negative advice of a Scientific Authority of an EU Member State - the advice of the other Scientific Authorities in the EU (e.g. by a written procedure and/or in a meeting of the SRG) is sought (Letter C in Figure 3).

If the initial negative advice of the national Scientific Authority is confirmed, the SRG forms a Negative Opinion. This means that the species is in trade or is likely to be in trade and that introduction into the EU from the country of origin at current or anticipated levels of trade is likely to have a harmful effect on the conservation status of the species or the extent of the territory occupied by the species.

For as long as this Negative Opinion is in place, Member States will reject all import permit applications for the species/country combination of concern.

On the other hand, if the negative advice of the national Scientific Authority is not confirmed by the other Scientific Authorities, and the SRG concludes that the import will not be detrimental to the conservation status of the species concerned (a “non-detriment finding” has been made), it forms a Positive Opinion and imports can be resumed (Letter D in Figure 3). A Positive Opinion remains valid

130 Article 4(1)(a)(ii) Regulation (EC) No 338/97.

131 Article 4(1)(a)(i) and Article 4(2)(a) Regulation (EC) No 338/97.

132 Article 4(1)(a)(i) Regulation (EC) No 338/97.

133 Article 6(1) Regulation (EC) No 338/97.

134 Article 4(1)(a)(i) and Article 4(2)(a) Regulation (EC) No 338/97; Article 17(2) Regulation (EC) No 338/97.

Reference Guide to the European Union Wildlife Trade Regulations (December 2020) 35

for subsequent import permit requests as long as the conservation and trade status of the species concerned have not changed significantly. To ensure that adequate monitoring takes place and that trade into the EU does not contribute to the decline of any species in the wild, Management Authorities are encouraged to consult their Scientific Authorities on every application or, at least, to keep their Scientific Authorities informed of permits issued so that the Scientific Authority can determine when circumstances have changed or a ‘non-detriment finding’ should be reviewed¹³⁵. Where a high level of scrutiny is required on the basis of conservation concern for the species, each individual application can be referred to the SRG under the decision type “SRG Referral” (formerly called “no-opinion iii” – see Annex IV). In these cases, individual Member States cannot make the decision whether to allow or refuse an application and must wait for feedback from the SRG for each and every application.

Opinions of the SRG come into effect immediately and do not need to go through any further approval process.

Note that Positive, Negative and SRG Referral Opinions of the SRG can also originate at meetings of the SRG, for example through the regular review of trade levels of certain species from certain countries, or of trends in annual export quotas that are established voluntarily by the country of origin.

In cases where data is insufficient, the SRG is not in a position to issue a confident Positive or Negative Opinion. The SRG may decide that consultation with the country or exporter scientific experts to address information gaps is appropriate. Such cases are referred to as “in consultation”.

The EU will consult the relevant country/expert to request the necessary information. To allow time for a response, the SRG will re-consider the case after 12 months but not more than 24 months. It should be noted that “In consultation” is not a formal opinion of the SRG and can made alongside other formal SRG opinions. It replaces the previous “no opinion ii)” and is recorded in Species+. The Scientific Authorities of the Member States continue to assess all imports on a case-by-case basis.

Where a species/country combination is discussed by the SRG but a formal SRG opinion is not adopted, a record to note that the discussion took place is reflected in both the short and detailed Summary of Conclusions of SRG meetings, and also recorded in Species+.

A Negative Opinion may be transformed into a Positive Opinion where the conditions for establishing a Negative Opinion no longer apply. This may be based on information received from the country of export/relevant range State, but it is also possible that a non-detriment finding is made on the basis of additional scientific information, e.g. from another Scientific Authority, or the SRG. A Positive Opinion can also be reversed into a Negative Opinion by the SRG if circumstances have changed or additional information has become available.

Definitions of the three types of SRG Opinions, along with further details on when and how they are applied in practice, are included in Annex IV of this Guide.

In some cases, it may be necessary to set size limits for the import of certain reptile species from specific countries and for specific source codes as tool to ensure the sustainability of harvesting and trade. To ease the enforcement, it is recommended to follow these scientifically standardized measurements, as described in Annex XVII.

135 For definitions of SRG opinions, see Annex IV to this Guide.

Step 3: Range State consultation¹³⁶

When the SRG has formed a Negative Opinion, the Commission then consults with the affected range State to ask for additional biological and trade information on the species of concern. If the range State then responds and provides this information, the SRG reconsiders its decision on the basis of the information received and, if this leads to a non-detriment finding, the Negative Opinion is transformed into a Positive Opinion and imports can be resumed (Letter E in Figure 3).

Step 4: Establishment of an official import restriction¹³⁷

If no new information is provided by the range State or other sources, or if the information received is not sufficient to make a non-detriment finding, the Negative Opinion will be confirmed and may, after consultation with the SRG, be transformed by the Commission into an official import prohibition through publication in the Official Journal of the European Union (Letter F in Figure 3). It is important to note that published import prohibitions are also reversible if new information is received. The official import prohibition will then enter into force once the updated “Suspensions Regulation” has been published. The Suspensions Regulation currently in force is Commission Implementing Regulation (EU) No 2019/1587 of 24 September 2019 prohibiting the introduction into the Union of specimens of certain species of wild fauna and flora. Where an official import restriction is established by the Commission, all Member States must reject all permit applications for as long as that restriction is in place¹³⁸.

Note that in the case of import prohibitions established in respect of Annex B specimens under Article 4(6)(c) (concerns relating to high mortality rates during shipment or low prospects of survival in captivity) or (d) (specimens presenting an ecological threat), import prohibitions may be applied directly without the formation of a prior Negative Opinion by the SRG (see Section 3.3.9.1).

136 Article 4(6) Regulation (EC) No 338/97.

137 As above.

138 Article 71(1) Regulation (EC) No 865/2006.

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Figure 3: Overview of procedures to establish Positive and Negative Opinions and import restrictions for species listed in Annex A or B of the EU Wildlife Trade Regulations*

*Letters in bold to the right of the diagram highlight stages explained in more detail above.

At national level:

Scientific Authority (SA) makes a decision on whether or not to allow an import based on non-detriment finding under Article 4(1)(a)(i) or 4(2)(a) of Regulation (EC) No 338/97 SA to check if there is an existing SRG Opinion. If so, this existing SRG Opinion will be followed

unless circumstances have changed or additional information has become available.

SA negative advice

= imports cannot be allowed SA positive advice

= imports can take place

The Management Authority rejects import application and informs the Commission

Consultation with SRG on this SA opinion (either by post or in meeting) At EU level

Legally binding import prohibition established and published in Official Journal of the

European Union as

“Suspension Regulation"

Negative opinion reversed into a SRG Positive Opinion: imports

can be allowed

SRG Positive Opinion: imports can be allowed

Third country reply: when restriction NOT supported = issue referred back to SRG

SRG Negative Opinion:

The Commission may consult affected Range State about establishing an import restriction under Article 4(6) of

Regulation (EC) No 338/97 SRG examines scientific issues

(e.g. by regular review of trade levels for species/country combinations or levels of voluntary

export quota)

SRG Referral

The Commission notifies other EU Member States and the issuance of import permits is put on hold (where there is not yet a Negative

Opinion of the SRG in place)

SA negative advice not confirmed by SRG = SRG Positive Opinion

SRG Negative Opinion confirmed SA negative advice confirmed by SRG =

SRG Negative Opinion

Included in Species+ website at http://www.speciesplus.net/

A

Third country reply: restriction supported

B

C

D

E

F

3.3.9.4 Can certain imports be exempt from import prohibitions established by the Commission under Article 4(6) of Regulation (EC) No 338/97?

Unless specifically decided otherwise, restrictions in accordance with Article 4(6) of Regulation (EC) No 338/97 do not apply to¹³⁹:

 specimens that are born and bred in captivity or artificially-propagated in accordance with the criteria laid down in Section XIII of Regulation (EC) No 865/2006 (see Section 3.6.1);

 specimens that are being imported for essential biomedical purposes, for conservation-oriented breeding/propagation programmes or for research or education aimed at the preservation or conservation of the species (see Section 4.2); and

 specimens, alive or dead, that are part of the household possessions of persons moving into the EU to take up residence there (see Section 3.6.5).

Member States should inform every importer that each and every application will be considered on its own merits, and that the absence of a Negative Opinion or an import restriction at the time of the application does not mean that a permit will be issued. It should be advised that it would be extremely unwise to conclude definitive contracts, to pay for ordered specimens and to arrange for their shipment in the absence of an import permit or, at least, of a sufficient guarantee that a permit will be issued.

Article 71(2) of Regulation (EC) No 865/2006 contains a “hardship clause” to deal with the treatment of applications that were made before an import restriction was established. It provides that an import permit may be issued:

 where an application was submitted prior to the establishment of the restriction, and

 where the competent Management Authority is satisfied that a contract or order exists for which payment has been made, or as a result of which the specimens have already been shipped.

A provision of this kind should not lead to a situation in which imports continue to take place, in spite of the fact that the conditions for import are not met. Therefore it should in general not be used, besides in exceptional cases, where import permits would be rejected on the basis of concerns of conservation detriment under any normal circumstance (see Section 3.3.3), and certainly not when these cases are established as a general import restriction under Article 4(6) (paragraphs (a) and (b)). To further reduce the possibility for abuse, import permits issued under this derogation will only be valid for one month.

3.3.9.5 Where can I access information on Negative Opinions and import restrictions?

Import restrictions under Article 4(6) are published by the Commission in the Suspensions Regulation¹⁴⁰. The state of Negative Opinions and import restrictions under Article 4(6) at any given point in time can be checked on the Species+ website.

139 Article 71(4) Regulation (EC) No 865/2006.

140 Commission Implementing Regulation (EU) 2019/1587 -OJ L 248/5 (27/9/2019) (at the time of the Guide’s publication – check the Official Journal or the Commission website for more recent versions).

Reference Guide to the European Union Wildlife Trade Regulations (December 2020) 39

3.3.10 Summary of conditions that must be fulfilled for the issue of import permits for

Nel documento GUIDA ALLA DISCIPLINA CITES IN UE (pdf, 4 MB) (pagine 32-39)