THE EU AS AN INTERNATIONAL ENVIRONMENTAL ACTOR IN THE FIGHT AGAINST WILDLIFE TRAFFICKING : THE ACCESSION OF THE EU TO THE CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD FAUNA AND FLORA (CITES)

T

HE

EU

ASAN INTERNATIONALENVIRONMENTAL ACTOR




INTHE FIGHTAGAINST WILDLIFE TRAFFICKING

THE ACCESSION OF THE EU TO THE CONVENTION ON INTERNATIONAL TRADE IN

ENDANGERED SPECIES OF WILD FAUNA AND FLORA (CITES)

Amandine VAN DEN BERGHE 11025077

Supervisor : Prof. dr. Steven Blockmans

25.07.2016

FACULTY OF LAW

Acknowledgments

I first would like to express my gratitude to my thesis supervisor Dr. Steven Blockmans, without whom this adventure couldn’t have been possible. He gave me the opportunity to work on a topic that I deeply care about. He gave me the right advice in order to make this study go forward. His encouragement, expertise and guidance have been a valuable asset for the achievement of this research project.

Additionally, I wish to particularly thank Maribel Rodriguez, who gave me exceptional contacts and provided me with invaluable insight that significantly benefited my final thesis product.

ABSTRACT Wildlife trafficking has turned into one of the largest and most profitable organized criminal activities worldwide, with dire environmental, economic and social impacts, and severe security issues. As Europe is currently one of the main destination markets, a major transit route, as well as, for some species, the source of the trafficking of endangered species, the EU has a pivotal role and responsibility in the fight against wildlife trafficking. Initially, the EU sought to assert itself as a prominent international player in this domain notably by being proactively engaged in the shaping and application of CITES, the main international instrument to protect endangered plants and animals from unsustainable trade. Even though the EU was not a party to CITES (because the Gaborone Amendment - that would permit REIO membership to CITES - had not yet entered into force), the EU has adopted unilateral and stringent European legislation on trade in endangered species since the 80s, and played a very active role as an observer in this Convention. After the entry into force of the Gaborone Amendment in 2013, the EU reaffirmed its commitment to become a stronger and more powerful actor on the international stage by becoming, in July 2015, the first REIO to accede to CITES. The accession of the EU as a single party to CITES can be regarded

as a logical and necessary step toward the completion of the EU commitment in this field. This research paper examines whether this accession will make the EU a more prominent international environmental actor in the fight against illegal wildlife trade. In doing so, it aims

at establishing clarity on the respective roles and responsibilities of EU Institutions and Member States (competences, internal coordination, negotiation and voting, as well as external representation).


TABLE OF CONTENT

INTRODUCTION 6

FIRST PART. THE GLOBAL ISSUE OF WILDLIFE TRAFFICKING AND THE INTERNATIONAL LEGAL FRAMEWORK

9

Chapter I. Wildlife trafficking 9

Section I. Definition 9

Section II. A Global issue 9

Chapter II. The international framework : CITES 10

Section I. History and purpose of the Convention 10

Section II. Functionning of the Appendices and Licensing System 11 Section III. Structure and the Conference of the Parties 12 Section IV. Implementation and enforcement by the Parties 12

SECOND PART. THE EUROPEAN FRAMEWORK 14

Introduction. The EU’s special responsibility in halting illegal wildlife trade 14

Chapter I. The implementation of CITES at EU level : the Wildlife Trade Regulations

14

Section I. How CITES became part of EU Law 15

Section II. Competence of the EU to regulate wildlife trade 16 Section III. Functioning of the Wildlife Trade Regulations 17

Chapter II. The EU in CITES before its accession - Observer Status 19

Section I. External environmental competence 19

Section II. Participation 20

a) Duty of cooperation 21

b) Internal coordination 22

c) Negotiation 23

d) Voting 25

Section III. External representation 27

Section IV. Accountability 28

Chapter III. The accession of the EU to CITES - Full membership 28

Section II. The legal basis for accession 30

Section III. The issue of participation 30

a) Internal coordination 31

b) Negotiation 31

c) Voting 31

Section IV. External representation 33

Section V. Accountability 34

CONCLUSION 35

TABLE OF THE ANNEXES 38

I

NTRODUCTION

Wildlife trafficking is not a new phenomenon, but its recent surge demonstrates that it has become a more intricate issue than just an environmental concern.

More than heavily depleting the populations of hundreds of millions of plant and animal species, and bringing some of them close to extinction, illegal wildlife trade has become a billion euros criminal industry. Indeed, it is considered as one of the largest and most profitable forms of 1 organized crime after drugs and arms trafficking.

The illegal trade in wildlife threatens biodiversity and affects negatively affects the economy of local communities. It undermines the rule of law, engendering insecurity and instability, funding militia groups and fueling armed conflicts. This complex issue demands worldwide cooperation not only to safeguard certain species from over-exploitation and unsustainable trade, and to avert dire economic and social consequences, and severe security issues. 2

As Europe is currently one of the main destination markets , a major transit route, as well as, for 3 some species, the source of the trafficking of endangered species, the European Union (EU) has a pivotal role and responsibility in the fight against wildlife trafficking. Initially, the EU sought to 4 assert itself as a prominent international player in this domain notably by being proactively engaged in the shaping and application of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),the main international instrument to protect endangered plants and animals from unsustainable trade. The EU was not a party to CITES because it did not allow membership by Regional Economic Integration Organizations (REIO), and its Gaborone Amendment - that would permit REIO membership to CITES - had not yet entered into force. 5

European Commission, ‘The EU Approach to Combat Wildlife Trafficking’, <http://ec.europa.eu/environment/cites/

1

trafficking_en.htm>.

Directorate-General for Internal Policies, Policy Department A : Economic and Scientific Policy, Wildlife Crime Study

2

for the ENVI Committee (2016), p.34.

« In 2011, the EU was the world’s largest single market for fishery products, estimated at EUR18.6 billion, the second

3

largest market for timber and wood based products, importing 17% of global trade with an estimated value of 25 billion euros, and with an estimated value for all EU imports of CITES-listed animals and animal products of 499 million euros, around 70% of them reptile skins and leather products. », see TRAFFIC, ‘EU sets precedent : first REIO to join CITES’, 8 July 2015, <http://www.traffic.org/home/2015/7/8/eu-sets-precedent-first-reio-to-join-cites.html>.

European Commission, EU Action Plan Against Wildlife Trafficking COM (2016) 87 final, p.7.

4

Gracia Marin-Duran and Elisa Morgera, Environnemental Integration in the EU’s External Relations : Beyond

5

However, the EU has adopted unilateral and stringent European legislation on trade in endangered species since the 80s and played a very active role as an observer in this Convention. 6 7

The Gaborone Amendment, adopted 30 years ago, entered into force on 29 November 2013.Last summer, the EU reaffirmed its commitment to become a stronger and more powerful actor on the international stage by adopting a new Action Plan against Wildlife Trafficking and in particular by becoming the first REIO to accede to CITES. The accession of the EU as a single party to CITES 8 can be regarded as a logical and necessary step toward the completion of the EU commitment in this field. It is expected to strengthen the role of the EU as a global actor in the environment and trade areas. This paper will examine whether this accession will make the EU a more prominent 9

international environmental actor in the fight against illegal wildlife trade.

The methodological approach for the study is threefold. First, using an external perspective, the paper describes how the issue of wildlife trafficking is regulated at the international level and provide a comparison with the European legal framework. Then, it describes how the EU participated as an observer in CITES meetings. For that purpose, interviews with a specialized lawyers and a policy officer from the DG Environment (European Commission) helped clarify practical issues. Second, this legal study has a predictive aspect, as its aim is also to serve the practice of law and inform other CITES parties on the new role of the EU in future CITES meetings. Finally, from a normative perspective, the EU external capacity in CITES is assessed on the basis of the four criteria of the ‘actorness theory’.

The ‘actorness theory’ was established by Jupille and Caporaso (1998), who propose four criteria that must be fulfilled by the EU to be an independent international player : authority, autonomy, external recognition and internal cohesiveness. Authority to act on behalf of the collective refers to the extent of delegated competences from the Member States to the EU. Autonomy refers to the ability to successfully pursue an independent agenda, i.e. the institutional independence of the EU

vis-à-vis its Member States in terms of representation, negotiations and voting. External recognition refers to the legitimacy of the EU, de facto (the interaction with third parties which

implies implicit recognition) and de jure (the diplomatic recognition under international law and

CITES is implemented in the EU since 1984 through through common Regulations, which are referred to hereafter

6

collectively as the ‘EU Wildlife Trade Regulations’.

European Commission, ‘Questions and answers on the EU Action Plan against Wildlife Trafficking’ (2016), <http://

7

europa.eu/rapid/press-release_MEMO-16-388_en.htm>.

Council Decision (EU) 2015/451 of 6 March 2015 on the accession of the European Union to the Convention on

8

International Trade in Endangered Species of Wild Fauna and Flora (CITES) [2015] OJ L 75/1.

European Commission, ‘EU Accession to CITES’, <http://ec.europa.eu/environment/cites/gaborone_en.htm>.

formal membership to an international agreement). Internal cohesiveness refers to the EU’s ability to formulate internally, and represent externally, a consistent position with a single voice, regardless of whether this is not the preferred position of all the Member States. The assessment of the 10 ‘actorness’ of the EU will discuss all along the paper through the issues of competences, internal coordination, negotiation and vote, as well as external representation. By doing so, this paper aims to establish clarity, for future CITES meetings, on the roles and responsibilities of EU Institutions and Member States, in particular for other representatives and stakeholders having an interest in matters covered by CITES. Indeed, the complex division of competence between the EU and the Member States in MEAs often makes their roles unclear for third parties.

The article will be structured as follow. Firstly, it will depict the global issue of wildlife trafficking and provide a quick overview of the international framework of the CITES Convention. The article will then offer three perspectives in probing the EU as an international actor in this field. First, it shows the width of the EU acquis in the field of endangered species protection and examines the implementation of the CITES Convention at the EU level, through the self-imposed EU Wildlife Trade Regulations. Secondly, the article goes on to review the role played by the EU as a non-party in the Convention. Finally, the article will discuss the legal implications of the accession of the EU to CITES. 


Thomas Ghering, Sebastian Oberthur and Marc Muhleck, ‘European Union Actorness in International Institutions :

10

Why the EU is Recognized as an Actor in Some International Institutions, but Not in Other’ (2013) 51:5 JCMS, pp. 853-855 ; Eugénia da Conceição-Heldt and Sophie Meunier, ‘Speaking with a single voice: internal cohesiveness and external effectiveness of the EU in global governance’ (2014) 21:7 JEPP, pp. 963-967.

FIRST PART 


THE ISSUE OF WILDLIFE TRAFFICKING AND 


THE INTERNATIONAL LEGAL FRAMEWORK

CHAPTER I. W

ILDLIFE

T

RAFFICKING SECTION I. DEFINITION

Wildlife trade is defined by TRAFFIC as « the sale or exchange of plant and animal or of wildlife products (live animals and plants, but also animal products such as skins, medical ingredients, timber etc) ». Once wildlife trade is pursued outside the legal boundaries and becomes 11 unsustainable, it becomes illegal and can be categorised under the notion of « wildlife crime » or « wildlife trafficking ». Wildlife trafficking is not defined in any treaty, but is understood as « any environment related crime that involves the poaching, capture, collection or processing of animals and plants taken in contravention of national laws, and any subsequent trade in such animals and plants, including their derivatives or products ». For the purposes of this study, wildlife trafficking 12 will be understood within the scope of CITES, this trade being considered illegal when the action represents a breach of the corresponding provisions of the CITES Convention.

SECTION II. A GLOBAL ISSUE

Illegal wildlife trade is not a new phenomenon, but its scale, nature and impact have recently changed considerably. It has become a growing problem worldwide and is considered as one of the world's most profitable organised crimes together with the trafficking of human beings, narcotics and firearms. The trade involves hundreds of millions of wild plants and animals from tens of thousands of species and provides a significant revenue on the black market, which is estimated to be between 8 and 20 billion euros annually. The increase in wildlife trafficking is mainly driven 13 by a growing demand for wildlife products, notably by the middle class in Asia, which can now

TRAFFIC, ‘Wildlife Trade : What Is It?’, < http://www.traffic.org/trade/>.

11

UNEP, ‘Perspectives : Illicit Wildlife Trafficking : an environmental, economic and social issue’ (2014) 14 UNEP, p.2

12

; In comparison, INTERPOL provides a broader definition : « the illegal exploitation of the world’s wild flora and fauna », see INTERPOL, ‘Environmental crime, <http://www.interpol.int/Crime-areas/Environmental-crime/ Environmental-crime>, accessed 24 April 2016.

UNODC, ‘Wildlife crime worth USD 8-10 billion annually, ranking it alongside human trafficking, arms and drug

13

dealing in terms of profits’, <https://www.unodc.org/unodc/en/frontpage/2014/May/wildlife-crime-worth-8-10-billion-annually.html> ; CITES, ‘The international dimension of illegal wildlife trade’, <https://cites.org/eng/ international_dimension_of_illegal_wildlife_trade >.

afford products formerly reserved for the small elite. Other factors also make the illegal wildlife trade a very attractive and low-risk activity with high profit margins. 14

Illegal wildlife trade negatively affects biodiversity bydirectly threatening the survival of a number of species in the wild and by leading to disruption of the ecosystem, which can have severe socio-economic impacts on those local communities depending on natural resources for their everyday survival. It also has major implications for the rule of law, peace and stability. Wildlife trafficking 15 has turned into a lucrative activity attracting transnational organised crime networks. In most 16 countries, however, the illegal wildlife trade is often not perceived as a serious crime and the low enforcement priority limits the chances of detection and punishment. It is a serious misconception to set wildlife trafficking apart from other global criminal activities, as those networks are closely linked. They both drive and are facilitated by the same factors : poverty, weak governance and political instability, corruption, lack of resources for enforcement and insignificant penalties. By 17 failing to combat the transnational wildlife trafficking networks, these other networks benefit from it. In May 2013, the UN Secretary-General Ban Ki-moon and the majority of UN Security Council members recognized the threat that the illegal wildlife trade poses to international security. In Central Africa, particularly, the illegal wildlife trade fuels conflicts and threatens the stability and security of many regions by providing a source of funding to armed militia and terrorist groups. 18

CHAPTER II. T

HE

I

NTERNATIONAL

L

EGAL

F

RAMEWORK

: CITES

SECTION I. HISTORY AND PURPOSE

Until the 60s, environmental problems such as wildlife trade were mainly regarded as a domestic concern. It was not until the early 70s that the international community began to recognize that these issues often have a cross-border dimension and require international cooperation. It is in such a spirit that the United Nations' Convention on International Trade in Endangered Species of Wild

Directorate General for Internal Policies (n 2), p. 9

14

IEEP, ‘Brussels in Brief - Biodiversity and Wildlife Trade’ (2007) 14 IUCN Newsletter, p.1.

15

There is an increasing body of academic literature and reports by intergovernmental institutions that identify illegal

16

wildlife trade as linked to organised crime. For good summary of key literature findings on this topic, see Directorate General for Internal Policies (n 2), pp. 33-37.

IEEP (n 15), p.3 ; European Commission, EU Action Plan Against Wildlife Trafficking (n 4), p. 7.

17

UNEP, ‘Perspectives’ (n 12), p. 6 ; European Commission, Action Plan for strengthening the fight against terrorist

18

Fauna and Flora (CITES) was born, to safeguard certain species from extinction and to respond to the need to regulate the international trade in wildlife. 19

CITES is a voluntary agreement between governments that was drafted as a result of a resolution adopted in 1963 in the course of a meeting of members of the International Union for Conservation of Nature (IUCN) and subsequently signed in Washington, D.C., on 3 March 1973 before entering into force in 1975. It is also known as the Washington Convention. Since then, it has become one of the most prominent international agreements in the field of species conservation and is one of the most widely accepted MEAs. To date, there are 182 Parties to the Convention, including the EU and all its Member States, and it accords varying degrees of protection to more than 35,000 species of animals and plants. 20

CITES is intended to protect endangered species of wild fauna and flora by regulating international trade therein. In other words, it does not prohibit the trade in wildlife in itself, but rather regulates 21 it in such a way as to prevent the extinction of animal and plant species. The Convention therefore tries to balance two different interests : the conservation of biodiversity, and the protection of wildlife versus the sustainable use of natural resources of (developing) countries. 22

SECTION II. FUNCTIONING OF THE APPENDICES AND PERMIT SYSTEM

CITES restricts and controls international trade in selected wildlife species listed in three Appendices, according to the degree of protection they need , i.e. depending on how threatened 23 they are by international trade. Trade in species threatened with extinction is generally prohibited, and trade in many other species is strictly regulated. The Convention works by subjecting international trade in the listed specimens to certain controls : the import, export, re-export of all species listed in the Appendices require authorization through a licensing system (Articles III to V). Consequently, wildlife products must be accompanied by an appropriate permit or certificate 24 which, under the terms of the Convention, will be granted only if the trade has no adverse effects on the survival of the wild species in question. Such a decision is made by the Scientific Authority of 25

Elise Verdonck, The Role of The European Union in the Fight against Global Illegal Wildlife Trade (GRIN 2014), p.

19

16.

CITES, ‘What is CITES ?’, <https://cites.org/eng/disc/what.php>.

20

Ibid.

21

Elise Verdonck (n 19), p.17, citing Peter L Fitzgerald, International Issues in Animal Law (Carolina Academic Press

22

2012), p. 79. See Annex A.

23

CITES, ‘How CITES works?’, <https://cites.org/eng/disc/how.php>.

24

European Commission, ‘Wildlife Trade Regulations in the European Union : An Introduction to CITES and its

25

the exporting member state. On the basis of the advice of the Scientific Authority, the Management Authority of the exporting member State must issue an export permit. It is then up to the national law enforcement agencies, such as the customs and the police, to control the issued permits. 26

SECTION III. STRUCTURE AND THE CONFERENCE OF THE PARTIES

CITES is composed of different bodies, but in the context of this study, only the Conference of the Parties (CoPs) is of interest.

Source : CITES, ‘The structure of CITES’, <https://www.cites.org/eng/disc/org.php>

The Parties to the Convention, which are the member States, and the EU, since July 2015, are collectively referred to as the Conference of the Parties. It is the governing decision-making body. Every two to three years, the CoPs meets to review the implementation of the Convention and most importantly to consider and, where appropriate, adopt proposals to amend the lists of species in Appendices I and II (Article XI). The CoPs are attended not only by delegations representing CITES Parties, but also by observers. These include representatives of States that are not party to CITES, of United Nations agencies, of other international Conventions and of non-governmental organizations involved in conservation or trade. Although they may participate in the meeting, they have no vote (Article XI). 27

SECTION IV. IMPLEMENTATION AND ENFORCEMENT

The text of the Convention provides a legal framework for the regulation of international trade that is binding on its Parties, but is « not self-executing ». This means that the Convention does not take the place of national laws but rather establishes a broad framework to be respected by each Party,

Elise Verdonck (n 19), p. 18.

26

CITES, ‘Conference of the Parties’, <https://cites.org/eng/disc/cop.php>.

which has to adopt specific domestic measures to ensure that CITES is given effect and is properly implemented at the national level. The « CITES National Legislation Project » identifies four 28 main requirements for an adequate CITES implementing legislation : to prohibit trade in species in violation of the Convention, to enable confiscation of illegal species, to levy penalties for illegal trade, and to appoint the Management and Scientific Authorities. The Convention text is also 29 further interpreted and elaborated upon by Resolutions, passed by the CoPs and generally intended to provide long-standing guidance, as well as by operational Decisions, mostly directed to a specific body of CITES and designed to be implemented by a specific deadline. Both instruments are 30 important tools for the development of the Convention, but are not legally binding so Parties may choose not to implement them. 31

Enforcement is a key element in the legal structure of MEAs, and thus of CITES. It refers to the « set of actions that Parties take to correct or halt illegal trade » : Parties have to set up sanctions (penalties, confiscation and seizures) that will be taken by the bodies involved (customs, police, prosecutors and judges) in case of violation of the legislation (Article VIII). 32

Cyrille de Klemm, Guidelines for Legislation to Implement CITES (IUCN 1993), pp. 6-8 ; European Commission,

28

‘Wildlife Trade Regulations in the European Union’ (n 25), p. 8 ; CITES, ‘What is CITES?’ (n 20).

CITES, ‘National laws for implementing the Convention’, <https://cites.org/eng/legislation> ; See also Articles VIII

29

to IX of CITES.

European Commission, TRAFFIC Europe and CITES, Reference Guide to the European Union Wildlife Trade

30

Regulations Guide (2015), p. 142 ; CITES, ‘Resolutions’, <https://cites.org/eng/res/intro.php>.

Willem Wijnstekers, Evolution of CITES (9th edn, International Council for Game and Wildlife Conservation 2011),

31

p. 241.

Juan Carlos Vasquez, ‘Compliance and enforcement mechanisms of CITES’, in Sara Oldfield (ed), The Trade in

32

SECOND PART 


THE EUROPEAN FRAMEWORK

I

NTRODUCTION

. T

HE

EU’

SSPECIAL RESPONSIBILITYIN HALTING




ILLEGALWILDLIFE TRADE

Because of the absence of internal border controls, once in the EU, illegal wildlife can be easily trafficked throughout Member States. Europe is one of the most important destination markets, one of the major transit route to other regions and also, for some species, the source region for the illegal trade. The EU has a special responsibility in halting the illegal wildlife trade, to ensure that trade in wildlife and wildlife products is sustainable and does not lead to the species concerned becoming endangered. Moreover, the EU is a major provider of official development assistance globally. It promotes, funds and supports, on a long-term basis, economic development and biodiversity conservation programs abroad, and addresses the instability and insecurity which the traffic causes to European foreign policy interests, as well as its diplomatic and financial commitments. The EU therefore has an important role to play in tackling the problem at both the 33 European and international level.

In this Second Part, the article offers three dimensions in probing the active role of the EU in the fight against wildlife crime, both on the domestic and international stage. First, the EU has set ambitious policies and legislation by integrating the CITES Convention into EU law on a voluntary basis since 1984 (Chapter I). Secondly, the EU has shown leadership by being a key player in the CITES Convention and by participating as an observer to the CoPs meetings (Chapter II). And thirdly, the recent accession of the EU to the Convention constitutes a logical step and reflects the EU’s commitment to playing a stronger role in the protection of endangered species (Chapter III).

CHAPTER I. T

HE IMPLEMENTATION OF

CITES

AT

EU

LEVEL




THE

W

ILDLIFE

T

RADE

R

EGULATIONS

Even though the EU was not a party to the Convention and was therefore not bound to implement it, it has autonomously adopted measures through which it performs within the EU the obligations of the Member States under CITES, as if it were itself a contracting party to the Convention. This 34

Directorate General for Internal Policies (n 2), p. 42.

33

Court of Justice, Case C-370/07 Commission v Council [2009] ECR I-8917, Opinion of AG Kokott, para. 9.

chapter will look at how wildlife trafficking is regulated at the EU level. First, it will explore how CITES became part of EU Law and how EU legislation has therefore been influenced by the Convention, while presenting some differences (Section I). It will then also look at the legal basis on which the EU is competent to regulate the trade in wildlife and how the EU shares these competences with the Member States (Section II). The third section will provide a general overview of the EU Wildlife Trade Regulations and the functioning of the annexes and permits (Section III).

SECTION I. HOW CITES BECAME PART OF EU LAW

There are several reasons why CITES needed to be implemented uniformly at EU level and not individually by each Member State.

In 1982, only five of the existing ten Member States, were parties to CITES. The Customs Union and the resulting absence of systematic border controls between Member States made the implementation of CITES by individual Member States impossible, or at best, ineffective. 35 According to the definition of the internal market of Article 26 TFEU, common rules in all the Member States were necessary to ensure the free movement of wildlife products that CITES regulates. Moreover, external trade rules are of exclusive EU competence. As trade in wildlife 36 products is a commercial activity like any other, it falls under the scope of EU competences (Article 207 TFEU). In addition, the adoption of European policy and legislation on the protection and 37 conservation of the EU’s indigenous species also made wildlife trade regulations shift from being 38 individual national issues to embracing the entire EU (Article 192 TFEU). In 1982, the EU 39 therefore established its two first regulations, applicable in all EU Member States, including those that had not yet joined CITES at that time. In the 90s, due to the completion of the Single Market, 40 but also due to the disparate implementation of the aforementioned regulations by Member States and the constant evolution of wildlife trade control techniques and conservation management

European Commission, Reference Guide’ (n 30), p. 143.

35

Elise Verdonck (n 19), p. 22.

36

David Morgan, ‘The European Community Wildlife Trade Regulations’, in Sara Oldfield (ed), The Trade in Wildlife:

37

Regulation for Conservation (Routledge 2014), p. 70 ; CITES, ‘CITES in the European Union’ (2005) 15 CITES World

Official Newsletter of the Parties, p.14.

The Habitats and Birds Directives, respectively : Directive 92/43 on the protection of natural habitats and wild fauna

38

and flare, OJ 1992, L 296 and Directive 2009/147 on the conservation of wild birds, OJ 2010, L 20, p. 7

European Commission, ‘The European Union and Trade in Wild Fauna’, <http://ec.europa.eu/environment/cites/

39

legislation_en.htm>.

Council Regulation (EEC) No 3626/82 of 3 December 1982 on the implementation in the Community of the

40

Convention on international trade in endangered species of wild fauna and flora (CITES) [1982] OJ L 384 ; Commission Regulation (EEC) No 3418/83 of 28 November 1983 laying down provisions for the uniform issue and use of the documents required for the implementation in the Community of the Convention on international trade in endangered species of wild fauna and flora (CITES) [1983] OJ L 344/2.

policies, the EU had to replace the 1982 Regulations with two more comprehensive regulations. 41 Since then, some modifications have been made to the regulations (replacement, amendment, etc.) in order to take into account new provisions adopted at the meetings of the CoPs. To date, a set of 42 four regulations, known as the EU Wildlife Trade Regulations, implements CITES in EU law.

SECTION II. THE COMPETENCE OF THE EU TO REGULATE WILDLIFE TRADE

Existence of the competence and choice of the legal basis

The Union enjoys competences conferred on it by the Member States in the Treaties (Article 5 TEU, principle of conferral). The competences that have not been delegated to the EU continue to be the realm of the Members States (Article 4 TEU). Each competence of the EU must be found in a specific legal basis. The choice of the appropriate legal basis is of constitutional significance as it has important implications for intra EU policy-makings, as well as for the delimitation of powers between the EU and its MS. 43

In the context of wildlife trade, the EU is competent in the areas of protection of the environment (Article 192 TFEU) and common commercial policy (Article 207 TFEU). Indeed, regulating wildlife trade is an external environmental policy that also affects trade with third countries. The Commission has therefore regarded measures implementing the system of import and export licenses in the trade in endangered species of wild fauna and flora as environmental but also common commercial policy within the meaning of Article 207 TFEU. The Council, on the other hand, took a more subjective approach by looking at the content of the measure to identify its objectives. If it is prompted by considerations of environmental policy (the purpose of the measure is the protection of species), then it cannot be based on Article 207 TFEU but instead on article 192 TFEU only. Finally, the EU implemented CITES solely on the basis of its environmental 44 competence.

Council Regulation (EC) No 338/97 on protection of species of wild fauna and flora by regulating trade therein

41

[1997] OJ L 61 ; Commission Regulation (EC) No 939/97 laying down detailed rules for the implementation of Council Regulation (EC) No 338/97 [1997] OJ L 140.

For an complete overview of the evolution of the EU Regulations in Wildlife Trade, see European Commission,

42

‘Reference Guide’ (n 30), pp. 143-144. Marin-Duran and Morgera (n 5), p.8.

43

Jan H. Jans and Hans H.B. Vedder, European Environmental Law After Lisbon (4th edn, Europa Law 2012), pp.

44

Nature of the competence

Article 4(2)(e) TFEU states that the EU shares with the Member States the competence in environmental policy. Shared competence means that « the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not done so. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence ». 45 Under the new Lisbon framework, shared competence is concurrent in nature, and hence the exercise of shared competence by the Union excludes Member States from exercising their competence at the same time. Concerning trade and customs measures, the EU is exclusively competent (Article 3 TFEU).

Repartition of the competences between the EU and the Member States

By adopting the Wildlife Trade Regulations, the EU made use of its competences and laid down the rules in the matters of protection of wild fauna and flora from illegal trade. Therefore, the Member States no longer have the right to undertake obligations which would affect those rules. 46

SECTION III. THE WILDLIFE TRADE REGULATIONS

The EU Wildlife Trade Regulations form the legal basis for the implementation of CITES and aim at a common implementation, coordinated enforcement and scientific coordination. It includes the following regulations :

-

the « Basic Regulation » on the protection of species of wild fauna and flora (Council Regulation (EC) No 338/97 providing the general framework for the regulation of international as well as internal trade in wild animals and plants in the EU),

-

the « Implementing Regulation » (laying down how to implement the Basic Regulation),

-

the « Suspensions Regulation » (used to suspend the importation of particular species from certain countries into the EU), and

-

the « Permit Regulation » (provides inter alia standard model forms that must be used for permits, certificates and notifications). 47

Article 2(2) TFEU.

45

Interview B.

46

European Commission, ‘The European Union and Trade in Wild Fauna’ (n 39).

Those Regulations lay down a system of annexes and import and export licenses in wildlife trade in a similar fashion to the one imposed by CITES. In a nutshell, « permits, certificates or notifications are required for trade to and from the EU (import, export, re-export) in animal or plant species listed - according to the degree of protection they need - in one of the four Annexes. Documents will be issued only if certain conditions are met and they must be presented to customs before a shipment is allowed to enter or leave the EU. Whether or not these conditions are met is determined by the designated Management Authority of the individual EU Member State in co-operation with its national Scientific Authority ». It should be noted that the regulation only applies to trade with 48 third countries and does not affect the free movement of goods within the EU. 49

The EU Wildlife Trade Regulations are not a mere implementation of the provisions of CITES. In some respects they go beyond the Convention's requirements, often requiring stricter conditions for the trade in wildlife. Therefore, the text of CITES or the CITES CoPs’ Resolutions cannot used as an interpretation of the laws applicable in the EU. At the same time, the Court has consistently 50 held that the Regulations should be interpreted in the light of the CITES Convention. 51

Although the EU Wildlife Trade Regulations are directly binding and applicable in all EU Member States , they remain very general and Member States are responsible for the enforcement of 52 matters that remain under their competence. In particular, setting up sanctions are matters that remain under the sovereignty of each Member State. In addition, responsibility for the issuance of relevant permits by the Scientific and Management authorities lies with the Member States. 53 Member States may also take additional national measures (for example regarding the keeping of, or trade in, species listed in the Annexes), except when it relates to trade measures (for example rules on import and export permits) as trade is an exclusive EU competence. 54

European Commission, Permits, certificates and notifications’, <http://ec.europa.eu/environment/cites/

48

info_permits_en.htm>.

Jans and Vedder (n 44), p. 520.

49

For a complete table on the differences between the EU Regulations and CITES, see European Commission,

50

Reference Guide (n 30), p. 12.

Jans and Vedder (n 44), p. 518.

51

Article 288 TFEU.

52

CITES, ‘CITES in the European Union’ (n 37).

53

European Commission, ‘Wildlife Trade Regulations in the European Union (n 25), p. 12 ; Interview B.

CHAPTER II. T

HE

EU

IN

CITES

BEFOREITSACCESSION




O

BSERVER

S

TATUS

This chapter will assess the role of the EU in the context of the CITES Convention before its accession. Even though the EU was not a party to the Convention, the fact that CITES covers matters that fall under the competence of the EU (protection of the environment, trade and customs) justified its participation in the international regime. « The participation of the EU as such, is based on the need to make sure that both legal and political arrangements that are the results of cooperation within an international regime, conform to the Union’s political agenda and respect its competences ». The foundations of such participation of the EU on the international scene are dual 55 : the divisions of competences between the EU and its Member States, and the status of the EU in the international regime. This chapter will thus first look at the external environmental 56 competence of the EU (Section I). Then, it will examine the observer status of the EU and the issues of participation, representation and accountability (Section II, III and IV).

SECTION I. EXTERNAL ENVIRONMENTAL COMPETENCE

The EU has to be able to extend its jurisdiction beyond its borders. In the first instance, EU participation in CITES is based on express powers allowing the EU to engage international environmental cooperation (Articles 191 to 193 TFEU). External environmental policy aims at a high level of protection and the promotion of measures on an international level to deal with regional or worldwide environmental problems (Article 191(1) and (2) TFEU). Article 191(4) calls on the EU and the Member States, within their respective spheres of competence, to cooperate with third countries and international organizations. Article 193 TFEU might also be applicable, and likewise, Article 21(2)(f) TEU, regarding international measures to preserve the environment and the sustainable management of global natural resources. According to those provisions, the EU 57 shares the competence in external environmental policy with the Member States. The EU has 58 made use of its competence by adopting the Wildlife Trad Regulations. According to the ERTA judgement, when the EU exercises its internal competence by adopting common rules, Member

Bart Van Vooren and Ramses A. Wessel, EU External Relations Law: Text, Cases and Materials (1st edn, Cambridge

55

2014), pp. 246-248. Ibid.

56

Ludwig Krämer, ‘EU Negotiating and Voting under the Amended CITES Convention’ (2015) 12 JEEP, pp. 6-7.

57

See also Court of Justice, Case C-459/03 Commission v. Ireland [2006] ECR I-4635, para. 92.

States can no longer act externally in a way which would affect those internal EU rules. As soon 59 as a matter is covered by those Regulations, the EU is competent, not the Member States, to regulate this area, unless, of course, the Union has decided to cease exercising its competence. In addition to environmental competences, the participation of CITES is also justified on the basis of Article 207 TFEU since the measures agreed under CITES are also to a large extent of a trade-related nature.

SECTION II. PARTICIPATION

As noted earlier, before the Gaborone Amendment came into force, CITES membership was only open to individual States. Therefore, the EU was given observer status EU competences in the area of protection of endangered species called for its participation in CITES CoPs. The observer status allowed the EU to attend and participate in the negotiations, but not to vote. Because the EU does have formal competences but does not enjoy full membership, the form of EU involvement during CITES meetings was quite complex, especially for third parties.

Yet, the shared external competences in environmental issues between the EU and the Member States does not explain how the right to participate (negotiate and vote) is divided between them. This question concerns the amendments to the text of the Convention itself and in particular to Appendix I and Appendix II of the Convention. While EU negotiation and voting on an amendment of the CITES Convention itself is not problematic (see detailed provisions laid down in Article 218 TFEU), such EU negotiation and voting is less clear for issues concerning the amendments of Appendices I and II to the Convention. « These appendices may be amended by decisions of the CoPs, then they become binding on the parties to the Convention, without a formal ratification process of the Amendment being foreseen ». An amendment of the Appendices comes into effect 60 when supported by two thirds of the Parties present and voting (Article XV CITES).

This section will first look at the importance of cooperation and coordination in the relationship between the EU and Member States in external relations (a) and will then examine how the EU developed a common internal position (b),the way the Member States were encouraged to negotiate in line with the common position (c) and vote as a block (d).

Court of Justice, Case 22/70 Commission v. Council (ERTA) [1971] ECR 263, paras. 17-18.

59

Krämer (n 57), p. 7.

(a) The principle of sincere cooperation

The principle of sincere cooperation is laid down in Article 4(3) TEU and is of paramount importance in the relationship between the EU and Member States in external relations, especially in the context of MEAs because of the complexity of shared pre-emptive competences. It is based 61 on a requirement of unity which means, in clear terms, that the EU should speak in international forums with one voice and not give the impression of being divided internally, as this would weaken the EU’s negotiating position with regards to the other parties of the Convention concerned. The assumption is that, if the Member States are internally cohesive and speak « with a 62 single voice », the EU would be more effective and thus increase its external influence. The duty 63 of cooperation exists to ensure that the objectives laid down in EU law are attained. It imposes different obligations of action or inaction on the EU and Member States, depending on which phase they find themselves in, and depending on the intensity of collaboration and state of affairs within each phase : 64

-

Strategy and preparation : During the discussions in the relevant EU working groups in Brussels

or during the discussions between the Member States delegations and an EU delegation at international meetings, the EU and the Member States must cooperate in the preparation of the actual substance of a common EU initiative or strategy. They must try to reach an agreement on a common position or initiative and to set the stage for EU action and decisions on the division of competences between the EU and Member States. 65

-

Execution and implementation : The execution of previously agreed upon common initiative or

strategy within the international context materializes when the EU and the Member States speak at the CoPs or propose a new action with a single voice and vote as a block. Indeed, the Court has explicitly extended the obligation to sincere cooperation to the negotiation phase of an international agreement. The public expression of diverging opinion (on competence repartition 66 between the EU and Member States, whether a measure is stricter or not, etc.) would be contrary

Court of Justice, Case C-246/07 Commission v. Sweden [2010] ECR I-3317, para. 71. A mixed agreement is an

61

international agreement where both the EU and the Member States

Krämer (n 57), pp. 9-10 ; Panos Koutrakos, EU International Relations Law (Hart 2015), p. 182 ; see also Court of

62

Justice, Case C-246/07, paras. 104 and 65. Heldt and Meunier (n 10), p. 961.

63

Van Vooren and Wessel (n 55), pp. 192-193.

64

Ibid.

65

Court of Justice, Opinion 1/94 [1994] ECR I-5276, para. 108.

to « the requirement of unity in the international representation ». The Member States may not express a different opinion from the EU position and must vote in line with this position. 67

(b) Internal coordination

Every two years, CITES members meet at the CoPs in order to decide on changes to CITES rules, such as adding new species to the Appendices, changing the level of protection applied, or changing the documentation requirements associated with trade in these species. Because of the Union competence on trade and environment and the effects of the decisions taken at the CoPs on the implementation of Council Regulation (EC) No 338/97, the EU and the Member States must agree a common line ahead of the wider CITES meetings. Moreover, with their 28 votes, the Member 68 States of the EU have had a crucial role in influencing the far-reaching decisions of the CoPs. In order to use such a collective power and strength, the EU must ensure that the EU Member States act on the basis of such a common position by coordinating policies either in preparation of the international meeting or sur place during the negotiations. The EU common position defended in 69 international environmental negotiations is developed in detail at different levels through internal coordination processes between the European Commission and the Member States (the Council) (Article 218(9) TFEU).

Before the international meetings. The Commission has an important role, as it will prepare the

proposal that will be discussed by the working groups on CITES, and that will establish the position to be taken by the Member States during the international meeting on the issue under consideration.

Van Vooren and Wessel (n 55), p. 192-193.

67

Court of Justice, Case C-370/07 Commission v Council [2009] ECR I-8917, para. 57.

68

Tom Delreux, ‘The European Union in International Environmental Negotiations : an Analysis of the Stockholm

69

Convention Negotiations’ (2009) 19 Env. Pol. Gov., pp. 21-22.

Coordination among EU Member States in CITES negotiations involves various bodies established by the EU : 


the Committee on Trade in Wild Fauna and Flora, the Scientific Review Group and the Enforcement Group

If a proposal is of a scientific nature, it must first be approved by the Scientific Review Group before being discussed by the Committee. Once a consensus or qualified majority is reached, the Environmental Council conducts an EU internal coordination through its relevant responsible body, the Working Party on International Environmental Issues (WPIEI), which is composed of national experts from the Member States and with Commission officials in attendance. This working group prepares the EU position in international negotiations. Subsequently, the proposal is discussed by the Committee of the Permanent Representatives (COREPER) before approval by the Council of Ministers. In important and highly politicised negotiations, the EU position is formalized in Council Decisions, and in less salient negotiations the EU position simply takes the form of a joint act of representatives of the Member States meeting, within the Council. Since it gives instructions for negotiation and voting and instructs the Member States as to the position they are to represent at the meeting of the CoPs to CITES, a Council Decision, consequently, has binding and direct legal effects.70

During the international meetings. The common position could also be agreed sur place by the

so-called EU Coordination Meetings, in the margins of the international conference. An interval between the negotiation sessions often presents an opportunity to reflect and adapt, since proposals from other contracting parties are made or amended during such meetings and an immediate reaction by the EU is necessary.71

Decisions of those two formations are taken by qualified majority (Article 218(8) TFEU) and adherence to the common position agreed in Brussels or sur place would arise by virtue of the duty of loyal cooperation. In their own ways, both the Working Party and the Coordination Meetings 72 are formations of the Council (‘special committees’). 73

(c) Negotiation

Once the Member States and the Commission have coordinated a Union position, they will have to uphold this EU position. Because the arguments raised during the negotiations will influence the 74 outcome of the voting, Member States are required to adopt a specific position, especially in the

Tom Delreux, ‘The EU as an International Environmental Negotiator : External Representation and Internal

70

Coordination’ (2015) GovInn, pp. 5-6 ; Koutrakos (n 62), pp. 195-197. Ibid.

71

Article 34(1) TEU and Article 4(3) TEU.

72

Jolyon Thomson, ‘A Member State Perspective on the post-Lisbon Framework for the EU’s representation in

73

Multilateral Environmental Negotiations’, pp. 96-98, in Elisa Morgera (ed), The External Environmental Policy of the

European Union : EU and International Law Perspectives (Cambridge 2012).

Article 34(1) TEU and Article 4(3) TEU.

context of the work of international conventions to which the EU may not accede even though it has the competences to do so. In CITES CoPs, the EU relied upon its Members States for the exercise of its external competence. The complexity of the scope of the duty of cooperation within international conventions of which the EU is not a party, may give rise to disputes, such as in the

IMO case. 75

As soon as the EU has a position on the species being discussed (under existing EU legislation, in the Council instructions on the preparation of negotiations, or in the coordination meetings sur

place), a Member State may not dissociate itself therefrom. In other words, in the course of

negotiating amendments to CITES Appendices, an EU Member State may not express an opinion different from that of the EU itself, not even by suggesting more protectionist measures, under Article 193 TFEU. 76

Similarly, where a species is already protected by the EU legislation, the competence to regulate its protection through trade restrictions belongs to the EU. The EU therefore has sole competences to suggest measures at the CoPs, and no Member State is allowed to propose an amendment to Appendix I or II, or to express an opinion on such a proposal made by another Party to CITES. Where a species is not protected by EU law, the Member States - in theory - remain competent to regulate it. However, the competence to regulate is not the same as the right to negotiate on the international stage. Even if the species at issue is not regulated by the EU, a Member State must abstain from making unilateral proposals and must first inform and consult the EU Institutions on its initiative in order to find a common approach together. Consequently, while in theory, during international negotiations, the Member States are competent to deal with species not yet protected by the EU, the Court of Justice went a step further with the principle of sincere cooperation. Member States have to cooperate at all stages with the EU, even in a situation where a species is not yet regulated, but the Commission has submitted to the Council a proposal which has not been adopted, because it represents the point of departure of an EU concerted approach. 77

In brief, as soon as a species is protected under EU legislation or is the subject of an EU position,

the Member States may not express a diverging opinion and the right to negotiate proposals to the CoPs lies with the EU. Moreover, even if a species is not yet the subject of protection under EU law, a Member State that intends to act or negotiate unilaterally on a proposal made to CITES CoPs

Koutrakos (n 62), pp. 195-197. 75 Krämer (n 57), pp 9-11. 76 Krämer (n 57), pp. 10-13. 77

is under obligation to inform and consult the EU relevant Institutions in order to reach, if possible, a common and concerted approach with regard to that proposal. And during these consultations, the Member State cannot take any unilateral step. Thus, Member States only regain the right to negotiate unilaterally when the discussions between the Member States and the EU do not even lead to a proposal by the Commission for a common EU action, or when the achievement of a coordinated approach is deliberately delayed. 78

(d) Voting

While the EU was not allowed to vote before its accession, the Member States have almost always shown unity when casting votes at CITES CoPs, because they were also obliged to act in the Union’s interest in that context where the agreement affected EU competence. During the CoPs, 79 Member States used to vote individually, but always in line with the EU common position agreed in advance of the meetings or sur place at the CoPs. The bloc vote increase the EU influence over the proceedings as it gives strength to the EU to make a proposal pass or fail.

As mentioned above, the common position must be adopted by a qualified majority (Article 218(8) TFEU) and may take the form of a Council Decision giving negotiation and voting instruction. Where there is a qualified majority, the Member States’ vote will have to be made in line with that majority. A common position reached may also consist of abstaining from voting. All Member States have almost always respected their obligations to make the EU speak with one voice and thus show unity in the international representation towards other CITES Parties.

When a proposal does obtain a qualified majority within the EU, this means that the EU is not able to have an opinion on the subject-matter. In such a case, practice has shown that the Member States would abstain during the vote.

Where the EU proposal is rejected by the CITES CoPs, there remains an EU coordinated strategy and thus letting the Member States vote freely would contradict the requirement of unity, unless the EU decides to yield its competence under Article 2(2) TFEU. In such cases, it is assumed (details of the voting instructions are often unknown) that the EU has foreseen a « fall-back position » to cover the situation where the EU’s own proposal was rejected. 80

Ibid.

78

Article 4(3) TEU ; see also Matthias Buck, ‘The EU’s representation in multilateral environmental negotiations after

79

Lisbon’, in Elisa Morgera (ed), The External Environmental Policy of the European Union : EU and International Law

Perspectives (Cambridge 2012), p. 78.

Krämer (n 51), pp. 13-14.

The EU has positivity influenced CITES meetings. For example, the EU support has been crucial in adding a number of shark and ray species to CITES at the last meeting in 2013, and in bringing the illegal ivory and rhino horn trade into the light. On the other hand, the EU bloc voting system has 81 sometimes been criticized, especially in the recent Polar Bear case. 82

At the 16th CITES CoPs (Bangkok, 2013), the USA proposed to place the polar bear in Appendix I instead of Appendix II. Ireland, on behalf of the EU and its Member States, proposed to leave the polar bear in Appendix II but to add an annotation which restricted its trade. First, the EU proposal was put to the vote. While all EU Member States backed the proposal, showing unity and respecting their obligation to make the EU speak with one voice, the proposal was nevertheless rejected. The USA proposal was then put to the vote, but all EU Member States abstained and Denmark voted against, resulting in a refusal of the proposal. 83

According to Luke Dale-Harris, the abstention of the EU Member States is not due to a EU fall-back position on the USA proposal, but rather because a qualified majority for that proposal was not reached within the EU. A clear majority of EU countries supported the ban and would have voted in favour. However, because Denmark (arguing for the interest of Greenland) did not agree with the USA proposal, the Commission proposed its own compromise, but failed to reach the qualified majority. The Commission therefore withdrew its own compromise and requested that all Member States abstain from voting on the USA proposal. It is said that Denmark and Greenland held the whole EU vote hostage and managed to have the EU abstain itself. « Pressures put on the member states to abstain from voting simply because a minority of states does not agree, has no basis in EU law ». Moreover, Denmark had no competence to vote differently from the other EU 84 Member States, as there was a common EU position, and, by casting its vote against, it acted in contravention with the principle of sincere cooperation. 85

This case illustrates several issues. First, it demonstrates the huge influence the EU voting bloc system can have over CITES voting outcomes. This is also because the EU influences other countries, notably those relying on their trade links with the EU or looking to gain accession to the EU. Second, the Polar Bear example indicates that the principle of sincere cooperation is relatively WWF, ‘What difference will EU membership make to CITES ?’, 3 July 2015, <http://www.wwf.eu/?

81

uNewsID=251474>.

Luke Dale-Harris, ‘Bogus Bloc: Why Joint European Votes Are Bad for Wildlife’, 21.03.2013, De Spiegel,

82

<www.despiegel.de>. Krämer (n 57), p. 18.

83

Dale-Harris (n 82), quoting the NGO ‘ClientEarth’.

84

Dale-Harris (n 82).

ambiguous as it requires to always come up with a common position, no matter if there are diverging interests between the EU Member States. Recently, proposals to regulate the trade of both the highly endangered blue fin tuna and north atlantic whales have also been thrown out after a blocking minority forced the EU bloc to abstain from voting. Moreover, what constitutes exactly a common EU position has been widely interpreted. Third, it illustrate the lack of clarity regarding where the EU interest lies (environment versus trade). 86

In such cases therefore, the EU and the Member States should in theory cooperate in order to agree on a common position ahead of the meetings or outside the meetings, to speak with a single voice, and vote as a block. In practice, however, the Member States do not want the EU to take the lead in the negotiations. As the polar bear case shows, trade and customs remain sensitive areas in which the Member States wish to maintain their influence on the international stage. 87

SECTION IV. EXTERNAL REPRESENTATION

Tensions have repeatedly arisen between the Commission and the Council on the question of external representation, because the EU Treaties did not clearly stipulate who should represent the EU in the case of mixed agreements such as MEAs. A system of « dual representation » has developed as Member States are represented by the rotating Presidency of the Council while the European Commission represents the EU. However, in practice, the system of dual representation is not typical of the EU’s external representation in the majority of environmental negotiations. Because of the vagueness in the Treaty provisions and the complex distribution of competences, EU representation arrangement in MEAs is often ad hoc. The way the negotiations arrangements is precisely fleshed out depends on pragmatic considerations, and the exact make-up of the EU representation varies from one negotiation session to another. 88

There is often tension between, on the one hand, the need, where possible, to have the coordinated position presented by an EU representative, and on the other, the wish of many Member States to maintain their own visible presence in CITES meetings. The mandate of EU representatives at 89 CITES meetings has never been clearly defined. Generally at CoPs, the Member State holding the 90

Ibid.

86

Interview A.

87

Delreux, ‘The EU as an International Environmental Negotiator’ (n 70), pp. 3-4, ; Buck (n 79) ; Thomson (n 73).

88

Van Vooren and Wessel (n 55).

89

Species Survival Network and Wildlife and Countryside Link, ‘Open letter: Concerns on the lack of transparency

90

rotating Council Presidency used to speak « on behalf of the European Union Member States acting in the interest of the European Union », engages in negotiations with other Parties and makes the proposals for the amendments to Appendices I and II of CITES. Member States, on the other 91 hand, would speak when it concerns their national interests.

SECTION V. ACCOUNTABILITY

As a non-party, the EU was not bound by the Convention and could not be held accountable by CITES for any actions it took in this field. Therefore, it could not officially be called to order by the Secretariat or the Conference of the Parties. They had to officially address themselves to individual member states who had transferred their competence to the European Union. 92

CHAPTER III - T

HE

A

CCESSION OF THE

EU

TO

CITES


F

ULL

M

EMBERSHIP

The EU takes an active part in the development, ratification and implementation of MEAs. The 93 two previous chapters have demonstrated that the EU has always sought to be a prominent player in the fight against wildlife trafficking by implementing CITES in a harmonized manner at EU level since 1984 as well as participating as an observer in the international negotiations at CITES meetings. The accession of the EU to CITES can be regarded as a logical and necessary step to ensure that the EU is fully able to pursue its objectives under its environmental policy and to play its full role in the work of the Convention. This third chapter examines the expected legal implications ensuing from this accession, in particular the impacts on the EU’s external capacity. The first section looks at the Gaborone Amendment and how the EU acceded to the Convention (Section I). The second section analyses the legal basis for the EU accession. (Section II). The last three sections review the implications for the issues of participation, representation and accountability of the EU (Section III to V).

SECTION I. THE GABORONE AMENDMENT

As has already been mentioned, the initial text of the CITES Convention only foresaw membership by States, which meant that the EU, as a regional organisation, could not become a party to the

Interview A and B.

91

European Commission, ‘Wildlife Trade Regulations in the European Union’ (n 25), p.19.

92

European Commission, ‘International Issues’, <http://ec.europa.eu/environment/international_issues/

93

Convention and was only an observer. This has changed with the entry in force of the « Gaborone Amendment » to CITES. This was adopted by a special CoPs in Gaborone, Botswana, in 1983, and modified Article XXI of the Convention so that access to the Convention could be opened to REIOs, « constituted by sovereign States which have competence in respect of the negotiation, conclusion, and implementation of international agreements in maters transferred to them by the Member States and covered by the Convention ». The Gaborone Amendment to CITES entered 94 into force on 29th _{November 2013, after its ratification by two-thirds of the 80 countries that were} Parties at the time of adoption of the amendment. Its entry into force allowed the EU to become a Party to CITES, as it is the only REIO in the sense of Article XXI of CITES. Since Lisbon, the EU 95 has been granted a legal personality (Article 47 TEU) allowing it to be a party to an international convention or treaty. The EU can therefore, just as sovereign States, ratify an international instrument, such as CITES, where it covers areas that fall within its remit. It is the only REIO where governments have transferred environmental competences over CITES matters to the regional entity (Articles 191 and 192 TFEU). The matters covered by CITES provisions also relate to trade and customs, areas which are subject to EU law (Article 207 TFEU).

With the EU being eligible for membership, the Commission adopted a proposal for a Council Decision on the accession of the EU to CITES in December 2013. The Council, in turn, submitted a proposal to the European Parliament in May 2014 and after having obtained its consent, the Council adopted the Council Decision (EU) 2015/451 in March 2015 (Article 218(6)(a) TFEU). The EU 96 became officially a party to CITES on 8th _{July 2015.}

The accession of the EU to CITES has been a long story. Indeed, it took 30 years to convince other CITES parties to ratify the Gaborone Amendment, and still some of them have been reluctant to offer a seat to the EU as a full member. The EU participation in addition to its Member Staes creates a number of costs for third parties. First, it increases the EU influence at the negotiation table. Secondly, it increases the complexity of the negotiations. Finally, it might encourage other REIOs and their member states to claim similar status. On the other hand, the accession of the EU entails the EU responsibility and accountability to implement the Convention obligations. 97

Gaborone Amendment to the text of the CITES (retrieved 13 February 2012, entered into force 29 November 2013).

94

CITES, ‘The 181st Party: the European Union’, <https://cites.org/eng/eu_181st_party>.

95

Council Decision (EU) 2015/451 (n 8).

96

Ghering, Oberthur and Muhleck (n 10), p. 851.