Annex XVIII

Guidance on handover of EU certificates in case of transfer of ownership of the certified specimen(s)

Introduction

Traceability of specimens and proof of legal acquisition are important to facilitate enforcement of EU Wildlife Trade Regulations. For that purpose, original documents should, if possible, accompany the specimens which are certified in those documents.

Article 8 of Regulation (EC) No. 338/97 (in the following denoted as BR 338/97) regulates commercial activities regarding specimens of the species listed in Annex A whereby in most cases a certificate for commercial use (see Article 48 Regulation (EC) No. 865/2006 - in the following denoted as IR 865/2006 –; model set out in Annex V Regulation (EU) No. 792/2012) is required. Both, the seller and the purchaser/acquirer are obliged to prove compliance with Article 8.

According to Article 8 (3) BR 338/97 there are two different reasons for the exemption:

a) the specimens fulfil specific conditions like being legally taken from the wild or being legally bred in captivity or being legally acquired prior to specific dates (Art. 8 (3) a), b), d) and h) or

b) the specimens may be used for specific privileged purposes (Art. 8 (3) c), e), f) and g), independent of their source.

This is also reflected in Article 48 (1) a) to c) and Art. 48 (1) d) IR 865/2006.

There are two kinds of EU certificates for commercial use, a ‘Specimen-Specific Certificate’ (SSC) or a ‘Transaction-Specific Certificate’¹ (TSC). In general, original EU certificates, especially SSCs, are handed over to the purchaser/acquirer/new owner of the certified specimen. The EU certificate must stay with the certified specimen. That enables the new owner to provide evidence for legal acquisition by an original document.

However, in view of the following regulation misunderstanding could arise when a certificate ceases to be valid after the transfer of ownership.

Article 11 of Implementing Regulation 865/2006 deals with the validity of used import permits and certificates. Paragraph 5² of this regulation is:

“5. Documents that cease to be valid in accordance with this Article shall, without undue delay, be returned to the issuing management authority which, where appropriate, may issue a certificate reflecting the required changes in accordance with Article 51.”

This guidance deals with the interpretation of Article 11 (5) IR 865/2006 and how the holder of a certificate, the owner of certified specimens and relevant authorities should proceed, especially when a certificate ceases to be valid.

Proposed guidance

Original documents shall accompany the specimens certified in those documents.

Specimen-Specific Certificate (SSC)³

Original certificates shall accompany the specimens certified in those certificates and shall be handed over from the seller to the new owner.

A specimen-specific certificate is to be passed on to the purchaser along with the specimen at the time of the sale and is valid throughout the EU.

Specimen-specific certificates are valid for the first and subsequent sales of the certified specimen (example: a live peregrine falcon marked with a seamlessly closed leg-ring), provided that the description of the specimen in box 4 of the certificate has not changed.
If the description in box 4 changes (example: the live falcon is dead, but shall be stuffed), the certificate will cease to be valid according to Article 11 (2) IR 865/2006 and may not be used for further commercial activities. For any further commercial activities, a new certificate is needed and the owner must apply for a new certificate. After checking the prerequisites, the competent authority shall issue the new certificate reflecting the required changes (example: description code: BOD for stuffed animal) and take away the invalid certificate from the holder in accordance with Article 51.

If the certified specimen has been lost or stolen or does not exist anymore, the certificate ceases to be valid and the holder shall return that certificate to the issuing authority via the holder’s actual competent authority in order to avoid misuse of the certificate.

For multiple use (transaction) box “No” to „Certificate only valid for holder named in box 1“ between box 19 and 20 on the certificate shall be ticked. For additional information, also in English, depending on space, box 20 may be used, f.e.:

“This certificate is only valid if the specimen is equivalent to the description in box 4.”
or
“This certificate is only valid for the specimen/s described in box 4. In case of sale of all certified specimens, the original certificate shall be surrendered to every new owner of the certified specimen for further commercial use. Each subsequent owner of the specimen is not required to obtain a new certificate for commercial use unless the description in box 4 of the certificate has changed.”

or any other specific information.

There may be cases where the holder is entitled to further use the original certificate (example: it covers more than one specimen) regarding the purpose for other certified specimens and therefore it cannot be handed over to the new owner. In these cases the original document shall be split. In order to enable the new owner to provide evidence for legal acquisition by an original document, a new certificate covering only the sold specimen(s) shall be issued. In addition, the existing certificate shall be corrected or replaced by a new one reflecting the required changes in accordance with Article 51 IR 865/2006.

Transaction-Specific Certificate -TSC-³

Two different types of TSC are in use:

1. ‘holder specific certificates’/’certificates for privileged purposes’ issued in accordance with Article 8 (3) lit. c), e), f) or g) BR 338/97 (Article 11 (4) IR 865/2006) if the specimen is allowed to be used for privileged purposes (see the specific information on the certificate between boxes 19 and 20: yes/no boxes) or
2. TSC, usually valid for one transaction only⁴.

In both types - save the TSC exemption mentioned in footnote 5: valid for several transactions restricted to the territory of the issuing Member State - the yes-box is used to restrict the use of the document to the holder mentioned in box 1.

Article 11 (5) IR 865/2006 shall be interpreted as follows: The original certificate shall accompany the certified specimen(s) also in cases when it ceases to be valid after the transfer of ownership.

Such certificates that cease to be valid may not be used for the purpose for which the certificate gave admission/allowance. However, the original TSC may serve as evidence for legal acquisition when ownership/possession of the specimen concerned is transferred. Evidence may be accepted by the competent authority when it is satisfied that the specimen concerned can be (clearly) linked to the TSC.

Certificates mentioned under a) above may allow the transfer from the holder mentioned in box 1 to a new holder who should be mentioned in box 2 or 20 of the certificate, too.

Certificates mentioned under b) above (example: TSC for animals made identifiable by photo documentation) are valid for multiple transactions in the issuing member states and may be used for the single transfer to a new owner in another member state.

Article 11.5 IR 865/2006 shall be interpreted that as a general rule the holder shall hand over the original certificate to the buyer/consignee whereby the new holder/owner shall be responsible to present the original certificate to the competent authority in his/her Member State.
The new owner has to observe additional national legislation (see below under “without undue delay”: registration or reporting obligations) which may oblige him/her to inform the competent authority about the transfer. The new owner may keep the original certificate as evidence for legal acquisition or as basis for applying a new certificate.

The competent authority in the Member State where the certified specimen is kept by the new owner decides whether that invalid (concerning commercial use) certificate is returned to the issuing authority, which shall take place when a new certificate is issued for the new owner.

This procedure enables the new owner of the certified specimen(s) to give evidence about the transfer and of the legal acquisition of the specimen(s) concerned by an original TSC.⁵

For single use (transaction)⁶ box “Yes” to „Certificate only valid for holder named in box 1“ between box 19 and 20 on the certificate shall be ticked. For additional information box 20 of the TSC may be used, for example: “The holder” or “authorized person” must surrender the original to the next owner of the certified specimens. After that transaction, when the certificate is no longer valid for further commercial activities, this certificate may be used as proof of legal acquisition. The new owner has to apply for a new certificate if the specimen shall be used for commercial activities.”
or any other information depending on space.

Interpretation of ´without undue delay´ in Article 11 (5) IR 865/2006

What means “without undue delay” in Article 11 (5) IR 865/2006?

Invalid certificates shall be returned to the issuing authority “without undue delay”, in practice via the holder’s competent authority.

As pointed out above in case of a TSC Article 11.5 IR 865/2006 obliges the seller to surrender the original certificate to the new owner as proof of legal acquisition. In theory, we expect the new owner to return the TSC (not valid for further commercial use) via his/her competent authority to the issuing authority. However, the original certificate may serve as evidence for legal acquisition and will therefore be kept until the specimen does not exist anymore or a new certificate is required.

Competent authorities will be informed about the transfer or the new ownership when there is national legislation (registration or reporting obligations) that obliges the new owner to give information to that effect. In Member States where additional national legislation does not exist, it is practice that the new owner will not turn to the competent authority until this is needed for issuing a new document (certificate for commercial use, personal ownership certificate, export document, etc.). Hence, the original certificate is further kept by the new owner; the competent authority is not aware of that new ownership and consequently is not enabled to enforce Article 11 (5) IR 865/2006.

In general, this practice shall be accepted.

The original certificate serves as evidence for legal acquisition, even though it may not be used for commercial use of the certified specimen. The certificate ceases to be valid in respect of the authorization it gave for the commercial use of the specimen(s) involved. Despite that, such an invalid certificate can be kept until this certificate is replaced by another document.

Another matter is when the certified specimen has been lost or stolen or does not exist anymore. In these cases, there is no need to keep the original any longer; in order to avoid misuse the holder shall return that certificate to the issuing authority via the holder’s actual competent authority.