Luxembourg, 19/11/2001 (Agence Europe) - The European Court of Justice has rules on a case concerning the sale of macaws born and bred in captivity in France. Macaws are parrots that live wild in Guyane (a French overseas département). This is the first time that the Court of Justice has issued a ruling concerning CITES (the Convention on international trade in endangered species of wild fauna and flora) which the EU has not joined, but which the Commission incorporated in the annex to a 1982 regulation (amended in 1997). This is a complicated case and the Court left the French courts broad decision-making powers - for example, deciding whether or not Xavier Tridon should be tried for breaking a French law.
Xavier Tridon is a French national (nationality is important here) who runs a centre for the artificial incubation of parrot eggs in France, who was accused of selling macaws and thereby contravening the "Guyane decree" based on the French "Code rural" and banning the use of macaw for commercial purposes.
The case was brought before the Tribunal de grande instance de Grenoble, which sent it to the European Court of Justice to decide whether or not France has the right to take or maintain stricter domestic measures than those in CITES.
The macaws in question belong to species of birds covered by Appendix I or II to CITES. For birds in Appendix I (known as Annex A in the EC regulation), the solution is simple because CITES allows countries to take stricter measures and therefore the general French ban cannot be challenged, explained the Sixth Chamber (chaired by Irish Judge, Fidelma Macken).
For birds in Appendix II, however, the Court explains that the 1997 regulation (replacing the 1982 regulation) does not mention authorising countries to take stricter measures - but with one exception. The 1997 regulation (amending the 1982 regulation) was adopted on the basis of Article 130 of the Maastricht Treaty (now Article 175 of the amended Treaty), which provides that the protective measures adopted under Article 130 are not to prevent any Member State from maintaining or introducing more stringent protective measures (as long as they are compatible with the free circulation of goods regulations).
A French judge will have to decide whether the total ban on the commercial use of macaws is compatible with the free circulation of goods, and whether it is disproportionate in regard to the aim of protecting endangered species.
Protection of endangered species
According to the French government, the ban on the commercial use of macaws is necessary because breeding macaws could have a marked negative impact on the survival of the species concerned in the wild in Guyane because this would create a market and there would therefore be great temptation to collect birds or eggs from the wild, "especially as the reproduction of numerous species in captivity calls for special installations and expertise which takes a long time to require".
The Court outlines a further argument put by the French government to justify its Guyane ruling: "Genetic diversity can be obtained only by taking specimens from the natural environment… thus creating in certain cases a genetic risk for the conservation of wild specimens".
France concludes that its total ban on the commercial use of macaws is the only relative measure to effectively discourage fraudulent practices of passing off eggs or birds taken in the wild as eggs laid or birds born and bred in captivity.
The Commission argued that the absolute prohibition of trade in captive born and bred specimens of species goes beyond what is necessary to ensure the effective protection of those species.
The Court notes that "According to the Commission, protection of the species in question could be accomplished by measures less stringent than, an absolute prohibition of trade, such as marking of birds by means of rings or microchip transponders, or blood analyses to establish the ancestry of the animal".
Parrots which have been speaking French for generations
Experts recall that for a long time "citizens" involved in a Franco-French, Italo-Italian etc. case, in the absence of any European element, could not invoke or benefit from the advantages of European law. The result was that nationals of one State (the French for example) were often treated more harshly than the nationals or companies of other States (Danish, Italians, Greeks, etc.) in that country (France) as the foreign nationals enjoyed advantages provided by the principles of European law (freedom of movement of goods, freedom of establishment, etc.).
Since then, the Court has acted as though there were a European element in the case (see EUROPE of 11 December 2000). The reason for this is that, in some Member States, the national law does not allow their citizens to be treated more severely. This legal fiction (of creating a European element) will thus allow the French judge to rule on the case whereas, hitherto, the Court would have stated that European law could not intervene in this purely French affair.
It must be noted that the sale of animals comes into the categories of "goods" and that the main freedoms of the treaty concern workers, goods, capital and services.