PREPORUKA o nacrtu odluke Vijeća o pristupanju Europske unije Konvenciji o međunarodnoj trgovini ugroženim vrstama divljih životinja i biljaka (CITES)

14.11.2014 - (09412/2014 – C8‑0042/2014 – 2013/0418(NLE)) - ***

Odbor za okoliš, javno zdravlje i sigurnost hrane
Izvjestiteljica: Pilar Ayuso

NACRT ZAKONODAVNE REZOLUCIJE EUROPSKOG PARLAMENTA

o nacrtu odluke Vijeća o pristupanju Europske unije Konvenciji o međunarodnoj trgovini ugroženim vrstama divljih životinja i biljaka (CITES)

(09412/2014 – C8‑0042/2014 – 2013/0418(NLE))

(Suglasnost)

Europski parlament,

–       uzimajući u obzir nacrt odluke Vijeća (09412/2014),

–       uzimajući u obzir Konvenciju o međunarodnoj trgovini ugroženim vrstama divljih životinja i biljaka (CITES),

–       uzimajući u obzir zahtjev Vijeća za davanje suglasnosti u skladu s člankom 192. stavkom 1. i člankom 218. stavkom 6. podstavkom 2. točkom (a) Ugovora o funkcioniranju Europske unije (C8‑0042/2014),

–       uzimajući u obzir članak 192. stavak 1., članak 207. i članak 218. stavak 6. podstavak 2. točku (a) Ugovora o funkcioniranju Europske unije,

–       uzimajući u obzir mišljenje Odbora za pravna pitanja o predloženoj pravnoj osnovi,

–       uzimajući u obzir članak 99. stavak 1. prvi i treći podstavak, članak 99. stavak 2., članak 108. stavak 7. i članak 39. Poslovnika,

–       uzimajući u obzir preporuku Odbora za okoliš, javno zdravlje i sigurnost hrane (A8‑0036/2014),

1.      daje suglasnost za pristupanje Konvenciji;

2.      nalaže svojem predsjedniku da stajalište Parlamenta proslijedi Vijeću, Komisiji te vladama i parlamentima država članica.

SHORT JUSTIFICATION

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is a major international instrument aiming at protecting endangered species of fauna and flora through controls on international trade in specimens of those species. It entered into force in 1975 and has now 178 Parties (including all EU Member States). It covers about 35.000 species, which are listed in three Appendices, according to the degree of protection they need, and ensures that international trade in specimens those species does not threaten their survival. All import, export, re-export and introduction from the sea of species covered by the Convention has to be authorized through a licensing system.

CITES provisions have been implemented uniformly in all Member States since 1 January 1984 and are now regulated through Council Regulation (EC) No 338/97 and various Commission Regulations (Commission Regulation (EC) No 865/2006, Commission Implementing Regulation (EU) No 792/2012 and Commission Implementing Regulation (EU) No 578/2013). The matters covered by CITES relate to the protection of the environment and trade. In the first area, the Union has shared competences with its Member States. In the second area, the Union has an exclusive competence.

The initial text of the Convention provided that CITES membership would be limited to States only. To date, the European Union has therefore held an observer status at CITES.

The "Gaborone Amendment" to CITES, adopted by a special Conference of the Parties in Gaborone, Botswana, on 30 April 1983, modified Article XXI of the Convention so that access to the Convention, previously limited to States, could be opened to regional economic integration organizations constituted by sovereign States which have competence in respect of the negotiation, conclusion and implementation of international agreements in matters transferred to them by their Member States and covered by this Convention.

The Gaborone amendment to CITES entered into force on 29 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 allows the European Union to become a Party to CITES.

In line with the practice that Parties to the CITES should contribute as soon as they accede, it is expected that the EU would pay 2.5% of the total amount of the CITES Trust fund annually (approximately EUR 115 000 in 2015). A drop in the Member States' share of contributions will be applied accordingly.

The proposal for the Council Decision aims at approving the accession of the European Union to CITES and at calling upon the President of the Council to designate the person empowered to proceed, on behalf of the European Union, to the deposit of the instrument of accession as provided for in Article XXI (1) of the Convention and of the declaration of competence provided for in Article XXI (3).

Accession of the European Union to CITES will enable the EU to be adequately represented at CITES meetings and to play a full role in the work of the Convention, in line with the Treaties and established practices for external representation. It will enable the Commission, on behalf of the European Union, to lead negotiations and to be a catalyst in achieving a balanced compromise between the 28 Member States’ positions. When becoming a Party to the CITES, the European Union will be granted formal responsibilities and become accountable to other Parties for the implementation and enforcement of the Convention.

It has to be noted that the rights and obligations of Member States under CITES will not be affected by the accession of the European Union. As a Party to CITES, the EU will assume all rights and obligations which fall within EU competence. The European Union will vote on all matters covered by the acquis or likely to affect the acquis, such as Regulation 338/97[1] or other relevant EU regulatory acts, and individual Member States will continue to vote on the other issues. The EU internal decision-making process will not be disrupted either by EU accession to CITES. It will not, in particular, affect the way in which the common positions for the CITES Conference of the Parties are agreed by the Union and its Member States, within the fields of their respective competences, in accordance with the Treaties.

The Rapporteur believes first that the accession to CITES by the European Union will render the legal status of the European Union in the CITES more transparent vis-à-vis third parties to the Convention. The current observer status in meetings of the conference of the parties and its many important committees and working groups is indeed a negative factor in this context.

Moreover, the Rapporteur believes that accession of the European Union to CITES is a logical and necessary step to ensure that the European Union is fully able to pursue its objectives under its environmental policy. Accession would enable the Commission, on behalf of the European Union, to express a coherent EU position in CITES matters and play a substantial role in negotiations during the Conferences of Parties.

Furthermore, the Rapporteur would like to emphasize that, in practice, EU accession to CITES will both reflect the current practice and streamline it. As a matter of fact, during the Conferences of Parties, Member States currently vote individually but always in line with a Council decision that determines the position of the EU in the Conferences of Parties. Once the EU has become a party, it will be granted the right to vote during Conferences of Parties (its vote counting for 28 votes) on the basis of a position that -as is the case currently- would have been agreed in advance with Member States.

In light of the above considerations, the Rapporteur recommends that the European Parliament consents to the accession of the European Union to the Convention on International Trade in Endangered Species of Wild Fauna and Flora.

• [1]  Council Regulation (EC) No 338/97 of 9.12.1996 on the protection of species of wild fauna and flora by regulating trade therein, OJ L 61, 03.3.1997.

OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ON THE LEGAL BASIS

Mr Giovanni La Via

Chair

Committee on the Environment, Public Health and Food Safety

BRUSSELS

Subject:           Opinion on the legal basis of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (COM(2013)0867 – C8‑0042/2014 – 2013/0418(NLE))

Dear Mr Chair,

By letter of 18 September 2014 you asked the Committee on Legal Affairs pursuant to Rule 39(2) to consider the appropriateness of the legal basis of the above Commission proposal.

I - Background

The legal basis originally proposed by the Commission was Article 192 of the Treaty on the Functioning of the European Union (TFEU), the legal basis for the Union policy on the environment, and Article 207 TFEU on the common commercial policy, together with Article 218(6)(a) TFEU, the procedural legal basis on the conclusion of international agreements according to which the consent of Parliament is required.

In the request for consent sent by the Council to the Parliament, the reference to Article 207 TFEU and two sentences in an annex to the proposal on the internal market and EU's exclusive competence for the customs union and the common commercial policy were removed.

The legal basis for an on-going legislative procedure aiming at recasting the regulation whereby the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is implemented by the Member States[1], with the purpose of updating it to include provisions on delegated and implementing acts, is Article 192 TFEU alone.

The proposal for a Council decision concerns the accession of the EU to CITES, and the question therefore arises whether Article 207 TFEU should be included in the legal basis.

II - Relevant Treaty Articles

The following Articles of the TFEU were presented as the legal basis in the Commission's original proposal (emphasis added):

Article 192

(ex Article 175 TEC)

1. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191.

[...]

Article 207

(ex Article 133 TEC)

1. The common commercial policy shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union's external action.

2. The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the measures defining the framework for implementing the common commercial policy.

[...]

Article 218

(ex Article 300 TEC)

[...]

6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.

Except where agreements relate exclusively to the common foreign and security policy, the Council shall adopt the decision concluding the agreement:

(a) after obtaining the consent of the European Parliament in the following cases:

(i) association agreements;

(ii) agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms;

(iii) agreements establishing a specific institutional framework by organising cooperation procedures;

(iv) agreements with important budgetary implications for the Union;

(v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required.

The European Parliament and the Council may, in an urgent situation, agree upon a time-limit for consent.

[...]

Article 191 TFEU has the following wording (emphasis added):

Article 191

(ex Article 174 TEC)

1. Union policy on the environment shall contribute to pursuit of the following objectives:

— preserving, protecting and improving the quality of the environment,

— protecting human health,

— prudent and rational utilisation of natural resources,

— promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.

[...]

4. Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned.

The previous subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude international agreements.

III - Case-law on legal basis

It is settled case law of the Court of Justice that "the choice of legal basis for a Community measure must rest on objective factors amenable to judicial review, which include in particular the aim and content of the measure"[2]. The choice of an incorrect legal basis may therefore justify the annulment of the act in question.

In this case, it therefore has to be established whether the proposal either:

1.  pursues a twofold purpose or has a twofold component, and one of those is identifiable as the main or predominant purpose or component, whereas the other is merely incidental; or

2.  simultaneously pursues a number of objectives or has several components that are indissociably linked, without one being secondary and indirect in relation to the other.

According to the case law of the Court of Justice, in the first case the act must be based on a single legal basis, namely that required by the main or predominant purpose or component, and in the second case the act will have to be founded on the various corresponding legal bases.[3]

The Legal Service refers to the judgment of the Court of Justice in Case C-94/03, Commission v Council [2006] ECR I-0001, which raised the same question as in this Council decision. The Court of Justice came to the following conclusion:

51. Having regard to all the foregoing considerations, and as is also clear from the express terms of the eighth recital in the preamble to the Convention, according to which the commercial and environmental policies of the parties to the Convention should be mutually supportive with a view to achieving sustainable development, it must therefore be concluded that the Convention includes, both as regards the aims pursued and its contents, two indissociably linked components, neither of which can be regarded as secondary or indirect as compared with the other, one falling within the scope of the common commercial policy and the other within that of protection of human health and the environment. In accordance with the case-law cited in paragraph 36 of the present judgment, the decision approving that Convention on behalf of the Community should therefore have been based on the two corresponding legal bases, namely, in this case, Articles 133 EC and 175(1) EC, in conjunction with the relevant provisions of Article 300 EC.

55. Finally, it is important to note that, by basing the decision approving the Convention on the dual legal basis of Article 133 EC and Article 175(1) EC, the Community is also giving indications to the other parties to the Convention both with regard to the extent of Community competence in relation to that Convention which, as has been shown earlier, falls both within the scope of the common commercial policy and within that of the Community environmental policy, and with regard to the division of competences between the Community and its Member States, a division which must also be taken into account at the stage of implementation of the agreement at Community level.

56. Having regard to all the foregoing, it is therefore necessary to annul the contested decision inasmuch as it is based solely on Article 175(1) EC, in conjunction with the first sentence of the first subparagraph of Article 300(2) EC and the first subparagraph of Article 300(3) EC.

IV. Aim and content of the proposal

The aim of the proposal, according to its Recitial 4, is to allow for the accession of the EU to the CITES convention in order to enable the EU to play a full role in the work of CITES and to legally bind the EU and all its Member States to implement and enforce the convention. It will create formal responsibilities for the EU so as to make it a party accountable to other parties for its implementation of the convention.

Recital 3 furthermore states that the matters covered by CITES relate to the protection of the environment and trade, which are areas in which the EU is competent for the negotiation, conclusion and implementation of international agreements.

An annex to the proposal includes a declaration by the EU with the following wording (emphasis added):

DECLARATION BY THE EUROPEAN UNION IN ACCORDANCE WITH ARTICLE XXI (PARAGRAPH 3) OF THE CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD FAUNA AND FLORA

"The European Union declares that, in accordance with the Treaty on the Functioning of the European Union, and in particular Article 191 thereof, it is competent for entering into international agreements, and for implementing the obligations resulting therefrom, which contribute to the pursuit of the following objectives:

– preserving, protecting and improving the quality of the environment;

– protecting human health;

– prudent and rational utilisation of natural resources;

– promoting measures at international level to deal with regional or worldwide environmental problems, including climate change.

Moreover, the European Union adopts measures at European Union level for the proper functioning of its internal market.

The European Union has exclusive competence with regard to measures concerning the Customs Union between its Member States and with regard to its common commercial policy.

The European Union declares that it has already adopted legal instruments, binding on its Member States, covering matters governed by this Convention, in particular but not limited to Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein and the implementing Commission Regulation (EC) No 865/2006 of 4 May 2006.

Moreover the European Union declares that it is responsible for the performance of those obligations resulting from the Convention on International Trade in Endangered Species of Wild Fauna and Flora which are covered by Union law.

The exercise of Union competence is, by its nature, subject to continuous development."

The two paragraphs which are underlined above have been deleted in the Council text sent to Parliament for consent.

The preamble of the CITES convention includes the following fourth recital:

RECOGNIZING, in addition, that international co-operation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade;

V - Determination of the appropriate legal basis

Taking into account that the purpose of the proposal is to legally bind the EU and all its Member States to implement and enforce the CITES convention, the purpose of the convention itself is therefore essential in order to determine whether the proposal simultaneously pursues a the two objectives of environmental protection and trade or whether one of them is merely incidental.

It should first be noted that the regulation whereby CITES is implemented in the Member States is based on the environment legal basis alone. From this it could be inferred that the environmental protection objective should not be considered incidental to any other possible objective but must be considered at least one of the main objectives.

The question therefore becomes whether the trade objective should be considered incidental to the environmental protection objective. It is clear from the forth recital of the preamble to CITES that its purpose is to provide for international cooperation in order to protect species from overexploitation through international trade. According to Article 207 TFEU, the common commercial policy shall be conducted in the context of the principles and objectives of the Union's external action, which according to Article 191, as referred to in Article 192 TFEU includes promoting measures at international level to deal with regional or worldwide environmental problems. The trade aspect of the proposal can therefore not be considered merely incidental to the environmental protection objective, not least taking into account that the EU holds exclusive competence when it comes to the common commercial policy.

The proposal therefore simultaneously pursues the two objectives of environmental protection and fair international trade. The two objectives are indissociably linked, without one being secondary and indirect in relation to the other. The legal basis of the proposal must therefore include Article 207 TFEU and cannot be based solely on Article 192 TFEU.

VI - Conclusion and recommendation

In light of the foregoing analysis Articles 192, 207 and 218 TFEU constitute the proper legal basis for the proposal.

The committee considered the above question at its meeting of 13 October 2014. At this meeting, it accordingly decided, by 15 votes in favour and 6 against, with no abstentions[4], to recommend that the appropriate legal basis for the proposal for a Council Decision on the accession of the European Union to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) should be Articles 192, 207 and 218(6) (a) TFEU.

Yours sincerely,

Pavel Svoboda

• [1]  See Parliament's legislative resolution of 16 April 2014 on the proposal for a regulation of the European Parliament and of the Council on the protection of species of wild fauna and flora by regulating trade therein (recast) (P7_TA(2014)0397).
• [2]  Case C-45/86, Commission v. Council (Generalised Tariff Preferences) [1987] ECR 1439, para. 5; Case C-440/05
  Commission v. Council [2007] E.C.R. I-9097; Case C-411/06 Commission v. Parliament and Council [2009] ECR I-7585.
• [3]  See the Case C-411/06, cited above, paras 46-47.
• [4]  The following were present for the final vote: Jean-Marie Cavada (Acting Chair, Vice-Chair), Max Andersson, Marie-Christine Boutonnet, Daniel Buda, Kostas Chrysogonos, Therese Comodini Cachia, Mady Delvaux (Vice-chair), Andrzej Duda, Pascal Durand, Angel Dzhambazki, Rosa Estaràs Ferragut, Jytte Guteland, Heidi Hautala, Sylvia-Yvonne Kaufmann, Dietmar Köster, Gilles Lebreton, António Marinho e Pinto, Jiří Maštálka, Angelika Niebler, Julia Reda, Evelyn Regner, Virginie Rozière, Viktor Uspaskich, Tadeusz Zwiefka.

REZULTAT KONAČNOG GLASOVANJA U ODBORU

Datum usvajanja	5.11.2014
Rezultat konačnog glasovanja	+: –: 0:	61 3 0
Zastupnici nazočni na konačnom glasovanju	Marco Affronte, Pilar Ayuso, Zoltán Balczó, Ivo Belet, Simona Bonafè, Lynn Boylan, Nessa Childers, Mireille D’Ornano, Miriam Dalli, Seb Dance, Angélique Delahaye, Jørn Dohrmann, Ian Duncan, Stefan Eck, Bas Eickhout, Eleonora Evi, José Inácio Faria, Karl-Heinz Florenz, Ashley Fox, Elisabetta Gardini, Enrico Gasbarra, Gerben-Jan Gerbrandy, Jens Gieseke, Julie Girling, Sylvie Goddyn, Matthias Groote, Françoise Grossetête, Andrzej Grzyb, Jytte Guteland, György Hölvényi, Anneli Jäätteenmäki, Jean-François Jalkh, Benedek Jávor, Josu Juaristi Abaunz, Karin Kadenbach, Syed Kamall, Kateřina Konečná, Peter Liese, Norbert Lins, Susanne Melior, Miroslav Mikolášik, Massimo Paolucci, Gilles Pargneaux, Piernicola Pedicini, Bolesław G. Piecha, Frédérique Ries, Michèle Rivasi, Teresa Rodriguez-Rubio, Annie Schreijer-Pierik, Davor Škrlec, Renate Sommer, Dubravka Šuica, Claudiu Ciprian Tănăsescu, Nils Torvalds, Glenis Willmott, Jadwiga Wiśniewska
Zamjenici nazočni na konačnom glasovanju	Renata Briano, Soledad Cabezón Ruiz, Ulrike Müller, József Nagy, Aldo Patriciello, Alojz Peterle, Christel Schaldemose, Bart Staes