Are specimens exempted by acquisition date?

4.3.1 What rules apply to trade in wildlife “antiques”?

Under the EU Wildlife Trade Regulations, “worked” specimens of species listed in Annex A, B, C or D that were acquired more than 50 years before the Regulations entered into force (i.e. before 3 March 1947¹), are considered antiques and are exempted from some of the controls that govern other types of specimens².

Worked specimens of species listed in the Annexes of Regulation (EC) No 338/97 (or containing parts or derivatives of the same) are defined as:

• specimens that were removed from the wild and significantly altered from their natural state for jewellery, adornment, art, utility or musical instruments, before 3 March 1947, and

• have been acquired in this condition and require no further carving, crafting or manufacture to effect their purpose (see Annex III of this Guide)³.

Antiques acquired before that date but that remain substantially unaltered from their natural state do not qualify for these exemptions. For example, a raw unworked rhino horn would not qualify even if it could be shown to have been acquired before 1947. Similarly, a tiger skin ‘rug’ acquired before 1947 may qualify if it could be shown that it was a genuine rug in its own right and not merely a skin which could also be fashioned into some other item at a later date. Stuffed animals - for example mounted and stuffed birds - are also considered to be worked specimens and may qualify for the exemption if they have been acquired before 3 March 1947.

Worked specimens that have been acquired before 3 March 1947 must, in general, remain in their original state and should not be subsequently altered. In practice, this means that specimens that have been altered subsequently for some other use may no longer qualify for the exemptions. For example, crocodile skin watch straps made from old handbags would not qualify. However, the definition does not necessarily exclude “renovation” (an inevitable part of any object’s life), therefore worked specimens that are restored using material from specimens of Annex-listed species that dates from before 3 March 1947 may qualify for this exemption.

A couple of additional points to note with regard to the definition of wildlife “antiques” are:

• it is not necessary that the person who acquired the specimens before 3 March 1947 is also the present owner for the purpose of the definition; and
• “acquired” also means receiving a specimen as a gift, inheriting it, or killing the animal or plant and taking possession of the specimen.

The European Commission has, in cooperation with the competent CITES Management Authorities of the EU Member States, compiled and published guidance on ‘worked specimens’, which aims to assist EU Member States and stakeholders in assessing what may or may not qualify as a ‘worked specimen’.

This derogation does not apply to antiques made of elephant ivory. For these items a permit is required ⁴.

4.3.1.1 What documents are required for trade in pre-1947 worked specimens (i.e. “antiques") into and from the EU?

Import

For worked specimens of species listed in Annex A or B, an import permit issued by the Management Authority of destination is required. However, such specimens are exempt from certain of the conditions for issuance of an import permit, i.e. the requirements that must be fulfilled are less strict (see Section 3.3.11). For example, the prohibition on imports for commercial purposes does not apply to imports of worked specimens that comply with the criteria outlined above.

Before the Management Authority can issue an import permit for specimens of species listed in Annex A, it needs to be satisfied that:

• the specimen was legally obtained in the country of origin, through the presentation of an export permit; and

• there are no other conservation factors that prevent the issue of an import permit⁵.

Therefore, for specimens of species listed in Annex A, a copy of the permit issued by the (re-) exporting country is required prior to issuance of an import permit.

For the import of specimens of Annex B-listed species, prior sight of the export permit or (re-) export certificate is not required, nor does the Management Authority have to consider whether there are any conservation reasons why the permit should not be issued⁶.

For specimens of species listed in Annex C and D, an import notification is required.

(Re-)export

For (re)export of specimens of species listed in Annex A, B or C, an export permit or re-export certificate is needed. However, as above for imports, worked specimens that fulfil the above criteria are exempt from certain of the conditions for issuance of an export permit/re-export certificate contained in Regulation (EC) No 338/97.

Before the Management Authority can issue an export permit/re-export certificate, it must be satisfied that there are no other factors relating to the conservation of the species which prevent issuance of the export permit⁷. In addition, evidence must be presented that:

• for exports, confirms that the specimens were acquired before 3 March 1947; or

• for re-exports, shows that the specimens were imported into the EU in accordance with the relevant regulations, or if the import occurred before 1984, in accordance with CITES, or before the Convention became applicable to them⁸ (see Section 4.3.2).

It is noted that for the (re-)export of CITES Appendix I-listed species, prior checking of the import permit issued by the country of destination is not required for such specimens⁹.

For internal trade in worked specimens, see Section 5.2.

4.3.2 What about trade in “pre-Convention” specimens?

Export or re-export from the EU

Legal basis

Article VII(2) of CITES establishes an exemption from the rules applying to species listed in an Appendix to the Convention for “pre-Convention” specimens:

"2. Where a Management Authority of the State of export or re-export is satisfied that a specimen was acquired before the provisions of the present Convention applied to that specimen, the provisions of Articles III, IV and V shall not apply to that specimen where the Management Authority issues a certificate to that effect”.

This exemption has been transposed (with a slightly different wording) into Regulation (EC) No 338/97 through Article 5(6)(ii) of Regulation 338/97, which states that export permits or re-expert certificates can be issued without the production of a Non-detriment finding and for commercial purposes for:

"dead specimens and parts and derivatives thereof for which the applicant provides documentary evidence that they were legally acquired before the provisions of this Regulation, or of Regulation (EEC) No 3626/82 or of the Convention became applicable to them”.

The implementation of this provision (both under CITES and the EU Wildlife Trade Regulations) has given rise to uncertainties over interpretation. CITES Resolution Conf. 13.6 (Rev. CoP18) was adopted in order to remove any ambiguity on how these CITES provisions should be interpreted. In particular, with regards to how the terms when “the provisions of the present Convention applied to that specimen” should be interpreted, it recommends that

"a. the date from which the provisions of the Convention apply to a specimen be the date on which the species concerned was first included in the Appendices"

Commission Regulation 865/2006 incorporates this definition of “pre-Convention” into EU law in its Article 1(10).

Article 5(6)(ii) of Regulation 338/97 should therefore be interpreted in the same way, i.e. the date when a species was first included in one of the CITES Appendices should be the reference to determine from when the provisions of the Convention/Regulations became applicable to dead specimens, parts and derivatives subject to an application for export or re-export documents.

This is also consistent with the definition of “pre-Convention specimen”, which, according to Article 1(10) of Commission Regulation 865/2006, “means a specimen acquired before the species concerned was first included in the Appendices to the Convention”.

Practical considerations

In line with the “background information” above, there exists a special derogation from certain conditions for issuance of export permits or re-export certificates for dead specimens, as well as parts and derivatives, of species listed in Annexes A, B and C, that were acquired before the date on which CITES or the EU Wildlife Trade Regulations¹⁰ became applicable to them.

In the case of dead Annex A specimens (as well as parts and derivatives) which fulfil the “pre-Convention” criteria (discussed below), an export permit or re-export certificate can be issued:

• for commercial purposes;
• without the prior sight of an import permit; and
• without reference to the Scientific Authority for advice on whether the (re-)export will have a detrimental effect on the conservation status of the species (only relevant in the case of exports of Annex A specimens, not re-exports¹¹. Note that the Scientific Authority will still need to be consulted by the Management Authority regarding whether there are other factors relating to conservation of the species that militate against the (re-)export¹².

The main rationale for the inclusion of the pre-Convention derogation in Regulation (EC) No 338/97 is to permit commercial exports and re-exports of non-living Annex A specimens acquired before CITES became applicable to those species.

Although not subject to a prohibition on commercial exports, the derogation still has implications for exports of dead Annex B and C specimens (and parts/derivatives) which fulfil the “pre-Convention” criteria as an export permit can be issued in such cases without reference to the Scientific Authority for advice (as above for Annex A specimens¹³. The Scientific Authority’s advice on non-detriment does not need to be sought for re-exports of dead Annex B and C specimens¹⁴. For information on the other requirements for issuance of an export permit/re-export certificate for Annex A, B and C specimens that still apply, see Section 3.5 above.

Import into the EU

It is noted that the same derogation does not apply for imports into the EU. Consequently, import permits are required for specimens acquired before CITES or the EU Wildlife Trade Regulations became applicable to them, and the full range of conditions for issuance will need to be satisfied. However, where such specimens are being reintroduced into the EU, or where the specimens are considered worked specimens acquired before 3 March 1947 (see Section 4.3.1), certain conditions for issuance of the import permit will not apply¹⁵.