Rules on trade in protected species of wild fauna and flora following the withdrawal of the United Kingdom from the EU
Practical information
Since 1 February 2020, the United Kingdom has withdrawn from the EU and has become a “third country”1. The Withdrawal Agreement2 provided for a transition period which ended on 31 December 2020. As of 1 January 2021, Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein3 no longer applies to the United Kingdom4. The information below outlines the legal situation following this transition period (part A), and the rules applicable in Northern Ireland after the end of the transition period (part B).
A. LEGAL SITUATION AFTER THE END OF THE TRANSITION PERIOD
1. IMPORT, EXPORT AND RE-EXPORT OF PROTECTED SPECIES BETWEEN THE EU AND THE UNITED KINGDOM
According to Article 4 of Regulation (EC) No 338/97, the introduction into the EU of specimens of species included in Annexes A and B to that Regulation is subject to the prior presentation, at the customs office of entry, of an import permit issued by a management authority of the EU Member State of destination. Article 4 of Regulation (EC) No 338/97 also lays down the conditions determining the issuance of this import permit.
According to Article 5(1) and (2) of Regulation (EC) No 338/97, the export from the EU to a third country of specimens of protected species is subject to the prior presentation, at the customs office at which the export formalities are completed, of an export permit issued by a management authority of the EU Member State in which the specimens are located. Article 5(1) and (2) of Regulation (EC) No 338/97 also lays down the conditions determining the issuance of these export permits.
According to Article 5(1) and (3) of Regulation (EC) No 338/97, the re-export from the EU to a third country is subject to a re-export certificate issued by a management authority of the EU Member State where the specimen is located.
Following the UK’s withdrawal from the EU, Article 4 and Article 5(1), (2) and (3) of Regulation (EC) No 338/97 apply to the introduction and (re-)export of specimens of protected species between the United Kingdom and the EU.
More specifically, this means inter alia the following:
- An export permit will have to be issued by the exporting EU Member State when specimens of protected species are moved to the United Kingdom.
- An import permit will have to be issued by the importing EU Member State when specimens of protected species are moved from the United Kingdom.
- A re-export certificate will have to be issued by the re-exporting EU Member State when specimens of protected species are moved to the United Kingdom.
The same principles apply to the movement of specimens of species listed in Annex C and D of Regulation (EC) No 338/97, with regard to the respective CITES documents required for such movements.
The UK will continue to accept phytosanitary certificates in lieu of CITES export permits as long as all the relevant conditions are met. The UK will continue to require a CITES import permit to accompany the phytosanitary certificate (serving as CITES export permit). The UK CITES MA will expedite applications for CITES import permits where a phytosanitary certificate is being used in lieu of a CITES export permit5.
2. DEROGATIONS - PERSONAL AND HOUSEHOLD EFFECTS
Article 7(3) of Regulation (EC) No 338/97 provides for derogations for introduction and (re-) export of certain specimens being personal or household effects. Where the relevant conditions are met, these derogations will apply to movements of personal and household effects between the United Kingdom and the EU.
3. TRAVELLING-EXHIBITION CERTIFICATE, PERSONAL OWNERSHIP CERTIFICATE, SAMPLE COLLECTION CERTIFICATE, MUSICAL INSTRUMENT CERTIFICATE
Chapters VII (travelling-exhibition certificate), VIII (personal ownership certificate), VIII a (sample collection certificate) and VIII b (musical instrument certificate) of Commission Regulation (EC) No 865/2006 provide for certificates to facilitate cross-border movements of certain specimens of protected species.
These certificates can be used as import permit, export permit, or re-export certificate6.
These certificates are mutually recognised amongst Member States according to Article 11(1) of Regulation (EC) No 338/97.
Certificates issued by the CITES authority of the United Kingdom before the end of the transition period can be used on the basis of CITES, to which the United Kingdom continues to be a Party7.
4. DESIGNATED CUSTOMS OFFICES FOR THE INTRODUCTION INTO AND EXPORT FROM THE EU
According to Article 4 of Regulation (EC) No 338/97, the introduction of specimens protected under it is subject to the necessary checks and the prior presentation of an import permit at the border customs office at the point of introduction.
According to Article 5 of Regulation (EC) No 338/97, the (re-)export of certain specimens is subject to the necessary checks and the prior presentation of an export permit or re-export certificate at the customs office at which the export formalities are completed.
Member States have to designate these customs offices and notify them to the Commission, which publishes their list in the Official Journal of the European Union8.
Where specimens of protected species leave or enter the EU customs territory, the permit or certificate required under Regulation (EC) No 338/97 has to be presented to the customs offices.
B. APPLICABLE RULES IN NORTHERN IRELAND
1. OVERVIEW
The Protocol on Ireland/Northern Ireland (“IE/NI Protocol”) is applicable for trade between the EU and the UK9. The IE/NI Protocol is subject to periodic consent of the Northern Ireland Legislative Assembly, the initial period of application extending to 4 years after the end of the transition period10. The end of the transition period is 31 December 202411.
The IE/NI Protocol makes certain provisions of EU law applicable also to and in the United Kingdom in respect of Northern Ireland. In the IE/NI Protocol, the EU and the United Kingdom have furthermore agreed that insofar as EU rules apply to and in the United Kingdom in respect of Northern Ireland, Northern Ireland is treated as if it were a Member State12.
The IE/NI Protocol provides that Regulation (EC) No 338/97 applies to and in the United Kingdom in respect of Northern Ireland13.
This means that references to the EU in part A of this guidance have to be understood as including Northern Ireland, whereas references to the United Kingdom have to be understood as referring only to Great Britain.
Where EU rules provide for Member States to issue import or export permits or re-export certificates, the United Kingdom in respect of Northern Ireland is responsible for issuing those permits or certificates.
More specifically, this means inter alia the following:
- The movement of specimens of protected species from Northern Ireland to the EU and vice-versa is not an import but an intra-EU movement for the purposes of Regulation (EC) No 338/97;
- The movement of specimens of protected species from Great Britain or from a third country to Northern Ireland is an import for the purposes of Regulation (EC) No 338/97.
- The movement of specimens of protected species from Northern Ireland to a third country is an export for the purposes of Regulation (EC) No 338/97.
Table 18: Summary table of procedures and applicable rules for the Northern Ireland protocol.
| EU to NI / NI to EU (e.g. Brussels to Belfast or vice versa) | GB to NI (e.g. London to Belfast) | EU to GB (e.g. Brussels to London) | GB to EU(e.g. London to Brussels) |
|---|---|---|---|
| Considered as intra-EU trade | UK-GB issues export permit | EU-MS (e.g., Belgium) issues export permit | UK-GB issues export permit |
| Normal intra-EU rules apply (certificate for Annex A-listed species, proof of legal acquisition for Annex B-listed species) | UK-NI issues import permit (according to EU rules) | UK-GB issues import permit (if required) | EU-MS (e.g., Belgium) issues import permit |
| Border controls done by UK authorities at exit and entry point. | Border controls at normal exit and entry point | Border controls at normal exit and entry points |
According to Article 6(1) of the IE/NI protocol, provisions of Union law made applicable by the Protocol which prohibit or restrict the exportation of goods14 are only to be applied to trade between Northern Ireland and other parts of the United Kingdom to the extent strictly required by any international obligations of the Union.
More specifically, this means inter alia the following:
- Movements from Northern Ireland to Great Britain are subject to the requirements set out in Regulation (EC) No 338/97, including any decisions taken by bodies established by Regulation (EC) No 338/97 (e.g., an opinion by the Scientific Review Group), as well as recommendations contained in a Commission Guidance document, where these requirements flow from CITES provisions.
- If the EU has listed a species that is not listed in CITES in Annex A or B to the Regulation and there is an EU export ban established for that species, then the export of such specimens would be possible from Northern Ireland to Great Britain, because such an export ban would not be strictly required by an international obligation of the EU15.
The IE/NI Protocol excludes the possibility for the United Kingdom in respect of Northern Ireland to participate in the decision-making and decision-shaping of the Union16,17.
2. ISSUANCE OF PERMITS AND REPORTING OF LEGAL TRADE
Permits for Northern Ireland will be issued by UK authorities under the EU Wildlife Trade Regulations as per the requirements/format in Regulation 792/2012. The UK will state the country of issuance as “United Kingdom (Northern Ireland)”. Permits for Great Britain will be issued under UK’s retained EU law applicable in GB, and the format of the permit is defined in their national legislation (essentially the same permit template but with EU references amended to UK/GB ones). UK will state the country of issuance as “United Kingdom (Great Britain)”.
The UK’s ISO code for UK (both GB and NI) will remain ‘GB’. The UK has explained that “where there aren’t accompanying import permits this would indicate NI origin and as import permit numbers are needed for re-export this should be identifiable in reporting. The Animal and Plant Health Agency (APHA), as UK Management Authority, will be able to confirm whether the UK have issued any permits for the movements in question. UK’s reporting (to the CITES Secretariat and to the Commission with regard to NI permits) will also make it clear where permits have been issued.” We understand this to mean that in the future EU CITES Trade Database, one will have to deduct from the different parts of information whether or not the transaction was in relation to “UK-GB” or “UK-NI”. On a permit, the difference should be clear on the basis of the information contained in the box 7 “Issuing authority’s country”, which details whether the permit was issued by “United Kingdom (Northern Ireland)” or “United Kingdom (Great Britain)”.
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A third country is a country not member of the EU. ↩
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Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, OJ L 29, 31.1.2020, p. 7 (“Withdrawal Agreement”). ↩
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OJ L 61, 3.3.1997, p. 1. ↩
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Regarding the applicability of Regulation (EC) No 338/97 to Northern Ireland, see Part B of Annex XX ↩
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See Annex XX for details on the rules on trade in protected species of wild fauna and flora following the withdrawal of the United Kingdom and EU. ↩
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Articles 31, 38, 44b and 44i of Regulation (EC) No 865/2006. ↩
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See, with regard to travelling-exhibition certificates and certificate standard forms, Resolution Conf. 12.3 (Rev. CoP19) on Permits and certificates, https://cites.org/sites/default/files/document/ERes-12-03-R17.pdf; with regard to personal ownership certificates, Resolution Conf. 10.20 on Frequent cross-border movements of personally owned live animals, https://cites.org/sites/default/files/document/E-Res-10-20.pdf; with regard to musical instrument certificates, Resolution Conf. 16.8 (Rev. CoP17) on Frequent cross-border non-commercial movements of musical instruments, https://cites.org/sites/default/files/document/E-Res-16-08-R17.pdf. ↩
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Article 12 of Regulation (EC) No 338/97. and OJ C 72, 18.3.2008, p. 52. See also the list published by the Commission at https://ec.europa.eu/environment/cites/pdf/listpointsof_entry.pdf ↩
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Article 185 of the Withdrawal Agreement. ↩
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Article 18 of the IE/NI Protocol ↩
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The UK left the EU on 31 January 2020 at 11.00 pm (UK time) (exit day) but with a transition period (also known as the implementation period) that will end on 31 December 2020, as the UK has chosen not to extend the transition period beyond that date. ↩
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Article 7(1) of the Withdrawal Agreement in conjunction with Article 13(1) of the IE/NI Protocol ↩
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Article 5(4) of the IE/NI Protocol and section 26 of annex 2 to that Protocol ↩
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This includes any prohibitions and restrictions on imports and exports resulting from Regulation (EC) No 338/97, incl. decisions taken by bodies established by Regulation (EC) No 338/97 (e.g., an opinion by the Scientific Review Group), as well as recommendations contained in a Commission Guidance document. ↩
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Normally, under EU law, one cannot export wild specimens of Annex A species for commercial purposes (Art. 5.2.(c) (ii) of Regulation (EC) No 338/97), whereas the same species listed under CITES Appendix II can be commercially traded under the CITES Convention. Therefore, for example, a wild caught barn owl (Tyto alba, App. II) could be commercially exported from Northern Ireland to the United Kingdom but not to a third country. ↩
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Where an information exchange or mutual consultation is necessary, this will take place in the joint consultative working group established by Article 15 of the IE/NI Protocol ↩
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For example, United Kingdom, in respect of Northern Ireland, cannot participate in the Committee (Article 18 of Regulation (EC) No 338/97) or the Scientific Review Group (Article 17 of Regulation (EC) No 338/97), and consequently also not propose or object to any decisions made or opinions issued by those bodies ↩