COMMISSION NOTICE

GUIDANCE DOCUMENT

on the export, re-export and intra-EU trade of captive-born and bred live tigers and their parts and derivatives (1)

(2023/C 135/01)

Table of Contents

1.

Background information and justification

2

a)

Threats to the conservation of wild tigers and the EU’s involvement in the trade of captive-born and bred live tigers and their parts and derivatives

2

b)

The international and EU legal framework governing the trade in tigers and their parts and derivatives

3

c)

Measures in EU Member States

4

2.

Purpose and status of the document

4

3.

Guidance on the interpretation of EU rules on export, re-export and intra-EU trade of captive-born and bred live tigers, and tiger parts and derivatives

5

a)

Applications for permits or certificates pursuant to Article 5 of Regulation (EC) No 338/97 (export and re-export)

5

b)

Applications for certificates pursuant to Article 8(3) of Regulation (EC) No 338/97 (intra-EU trade)

6

c)

Additional recommendation to be considered by the Member States

7

ANNEX

Evidence to substantiate legitimacy of purposes that are not detrimental to the conservation of the species pursued by licensed zoological institutions and breeding and conservation programmes

8

1.   Background information and justification

a)   Threats to the conservation of wild tigers and the EU’s involvement in the trade of captive-born and bred live tigers and their parts and derivatives

With an estimated 3 900 tigers reportedly remaining in the wild, illegal trade and trafficking of tigers and tiger parts and derivatives is the primary threat to their survival (2). High value is placed on nearly all tiger parts and derivatives, and as a result, poaching of wild tigers to meet demand for tiger parts and products has led to the disappearance of populations across otherwise suitable habitats in Asia (3). The most recent analysis of global tiger seizures over a 19-year period between 2000 and 2018 shows that specimens, parts and products of at least 2 359 tigers were seized in 1 142 incidents across 32 countries/territories globally (4). In recent years, there has also been mounting evidence that tigers born and bred in captive facilities are entering commercial illegal trade (5). This complicates enforcement efforts and may facilitate the use of (illegally obtained) tiger parts and products and stimulate market demand.

CITES legal trade data identify several EU Member States among the top 30 global exporters and importers of tigers between 1975 and 2018 (6). Based on these data, trade routes exist between Europe and Asia, where tigers are (re-)exported to countries that have facilities, which are breeding tigers and are alleged to be involved in the illegal tiger trade. CITES trade data for 2013-2018 indicate that live captive-born and bred tigers and their parts and derivatives are legally (re-)exported for commercial purposes, including to Asian countries.

While most EU Member States only allow licensed zoos or rescue centres to breed and hold tigers in captivity (7), several EU countries permit tigers to be kept and bred in private facilities (8) or circuses and travelling exhibitions (9). Four EU Member States currently allow tigers to be used in circuses and allow private owners to obtain licences to keep tigers in private facilities (10). The lack of harmonisation across the EU Member States regarding the rules governing the keeping and breeding of tigers in captivity provides an opportunity for illegal commercial trade (11).

In 2018, an EU Member State disclosed evidence of organised criminal groups, including private breeders, middlemen and traders, being involved in the captive breeding of tigers for illegal export to Asia (12). Evidence of traders involved in the sale of captive-born and bred tigers from captive facilities in the EU and the transfer of these specimens across the EU has also been substantiated in recent years. For example, EU-TWIX (13) seizures data for 2013-2018 show that live captive-born and bred tigers and their parts and derivatives continue to be seized internally within the EU and on (re-)export. Furthermore, in 2019, a circus family transported 10 tigers through several countries in the EU, allegedly destined for a zoo in a third country. It was verified that no operational zoos existed in the area and that the consignee was a meat and alcohol import company registered in a third country (14).

b)   The international and EU legal framework governing the trade in tigers and their parts and derivatives

Tigers (Panthera tigris) are included in Appendix-I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Under the current CITES rules, international trade in wild tigers, their parts and derivatives for commercial purposes is prohibited, with strictly limited exemptions. Trade in live tigers born and bred in captivity and their parts and derivatives is allowed, subject to conditions applicable to Appendix-II species (Articles VII(4) and VII(5) of CITES (15)).

In 2002, the parties to CITES first adopted Resolution Conf. 12.5 (Rev. CoP18) (16) on conservation of and trade in tigers and other Appendix-I Asian big cat species. Resolution Conf. 12.5 urges parties and non-parties where there are facilities keeping tigers and other Asian big cat species in captivity to ensure that adequate management practices and controls are in place and strictly implemented, including for the disposal of Asian big cats that die in captivity, to prevent parts and derivatives from entering illegal trade from or through such facilities. Resolution Conf. 12.5 also urges all parties in whose jurisdiction there is a legal domestic market for tiger specimens and other Asian big cat species that is contributing to poaching or illegal trade to take all necessary legislative, regulatory and enforcement measures to close their domestic markets for commercial trade in tigers and other Asian big cat specimens.

At the 14th meeting of the Conference of the Parties to CITES (CoP14) in 2007, CITES parties also adopted Decision 14.69 (17). This Decision directs Parties, especially Appendix-I Asian big cat range States with intensive operations breeding tigers on a commercial scale to implement measures to restrict the captive population to a level supportive only to conserving wild tigers. Decision 14.69 also states that tigers should not be bred for trade in their parts and derivatives (18). At the 17th meeting of the Conference of the Parties (CoP17) in 2016, the parties also adopted Decision 17.226 (19). This Decision requests that all parties in whose territory there are facilities keeping Asian big cats in captivity: a) review national management practices and controls that are in place for such facilities, to ensure that these management practices and controls are adequate to prevent Asian big cat specimens from entering illegal trade from or through such facilities; b) ensure strict application of all management practices and controls implemented to regulate the activities of facilities that keep Asian big cats in captivity, including with regard to the disposal of specimens from Asian big cats that die in captivity; and c) report to the Secretariat on progress in implementing this Decision.

CITES is implemented in the EU through Council Regulation (EC) No 338/97 (20) (Basic Regulation) and associated Commission Regulation (EC) No 865/2006 (21) (together the ‘EU Wildlife Trade Regulations’). Since 1997, tigers have been listed in Annex A of the Basic Regulation, which generally prohibits the commercial use of the species (22).

Pursuant to Article 7(1) of the Basic Regulation, captive born and bred Annex A species are subject to rules on export and re-export from the EU applicable to Annex B species. Further, based on Article 5(4) of the Regulation, some of the provisions applicable to Annex A species are also applicable to species listed in Annex B and therefore also to captive-born and bred specimens of Annex A species. This is notably the case of Article 5(2)(d) of the Basic Regulation, which stipulates that when assessing applications for export and re-export from the EU of specimens of the species listed in its Annex A, Member States’ management authorities need to be ‘satisfied, following consultation with the competent scientific authority, that there are no other factors relating to the conservation of the species which militate against issuance of the export permit’ (emphasis added).

Intra-EU commercial trade of Annex A specimens is, as a matter of principle, prohibited under Article 8(1) of Regulation (EC) No 338/97. According to Article 8(3) of this Regulation, exemption from that prohibition may only be granted by Member States’ authorities on a case-by-case basis if certain conditions (listed in subparagraphs (a) to (h)) as well as in Commission Regulation (EC) No 865/2006 are met.

It should be noted that the use of the term ‘may’ in Article 8(3) of Regulation (EC) No 338/97 implies that Member States are not obliged to grant a certificate for intra-EU trade even when those conditions are met, except if otherwise required by EU law. In other words, Article 8(3) cannot be considered to confer the right for an applicant to obtain a certificate for intra-EU trade (23). Member States can refuse to grant a certificate if this is appropriate to protect the species or to guarantee its conservation, and if the refusal does not go beyond what is necessary to achieve that aim.

c)   Measures in EU Member States

As a precautionary measure, some EU Member States have implemented stricter domestic measures regarding the commercial trade of captive-born and bred tigers and their parts and derivatives and rules on the keeping of these animals. These stricter measures include the suspension of (re-)export of live captive-born and bred tigers and tiger parts and derivatives to third countries for commercial purposes. Exemptions to these stricter measures apply only for the purposes of breeding in licensed zoos and/or for the conservation of the species. These measures also include the suspension of issuance of intra-EU trade certificates for live captive-born and bred tigers, and their parts and derivatives, except in certain circumstances such as for the purposes of breeding, research, and education in licensed zoos. If certificates are issued, only transaction-specific certificates can be granted. Other measures concern strengthening national legislation regarding the movement, keeping and use for entertainment purposes of live captive-born and bred tigers. In addition to the measures in place in some EU Member States, several other EU countries intend to strengthen their domestic legislation regarding keeping tigers in private facilities or circuses.

The different measures in place, lead to varying practices across the EU. Guidance is therefore needed to ensure all EU Member States follow a similar approach for the export, re-export, and intra-EU trade of live captive-born and bred tigers and their parts and derivatives that is compatible with Regulation (EC) No 338/97, as well as the precautionary principle.

2.   Purpose and status of the document

Guidance documents are used for providing information to Member States on the ways to ensure a full and effective implementation of the EU Wildlife Trade Regulations on some issues. Species-specific guidance is only adopted in very specific circumstances and only when a particular issue needs to be tackled, for example when there are significant concerns relating to the conservation of a species. As outlined in Section 1, there is a risk that live tigers and parts and derivatives from captive-born and bred specimens are entering commercial illegal trade, stimulating the supply chain for consumer markets, and strengthening demand from end users. To avoid these consequences, which are detrimental to the conservation of the species, it is necessary to apply a strict interpretation of the Regulations for commercial trade with third countries as well as for the EU internal trade in live tigers born and bred in captivity and their parts and derivatives.

The purpose of this notice is to provide guidance to the competent authorities of the EU Member States on the interpretation of the EU Wildlife Trade Regulations, in light of the current state of conservation of this species and of other information relevant for that purpose to ensure all EU Member States follow an approach to the export, re-export and intra-EU trade of captive-born and bred live tigers and their parts and derivatives that is compatible with Regulation (EC) No 338/97 and the precautionary principle.

The EU’s regulatory framework on wildlife trade needs to be interpreted in the light of its terms and objectives, the precautionary principle, and with due regard to recent information on the state of conservation of the concerned species as well as other relevant information, for instance indication of persistence of or increase in illegal trade.

This guidance document was prepared by European Commission and a draft was endorsed by the Expert group of the competent CITES management authorities and thus by the competent authorities of the Member States in a written consultation in the course of 2022.

The guidance document is intended to assist national authorities in applying Regulation (EC) No 338/97 and Regulation (EC) No 865/2006. It is not legally binding; its sole purpose is to provide information on certain aspects of Wildlife Trade Regulations, and on measures considered to be best practice. It does not replace, add to, or amend the provisions of applicable EU law. The document should also not be considered in isolation; it must be used in conjunction with the legislation, and not as a ‘stand-alone’ reference. Only the Court of Justice of the European Union is competent to authoritatively interpret EU law.

The document will be published by the Commission on its website and may be published by the EU Member States.

3.   Guidance on the interpretation of EU rules on export, re-export and intra-EU trade of captive-born and bred live tigers, and tiger parts and derivatives

Acts of EU law must be interpreted in accordance with their terms and aims. Article 1 of Regulation (EC) No 338/97 states that the aim of that Regulation is ‘to protect species of wild fauna and flora and to guarantee their conservation by regulating trade therein’. The interpretation of the provisions of the Regulation must therefore be construed in a manner consistent with that aim.

In addition, Article 191(2) of the Treaty on the Functioning of the European Union states that environmental policy is to be based on the precautionary principle. This means that if an action or policy risks resulting in serious or irreversible harm to the public or to the environment, a lack of full scientific certainty should not be used as a reason for postponing cost-effective measures to prevent such damage. The principle aims to ensure a higher level of environmental protection through preventive decision-making in the case of such risks.

In accordance with the consistent case-law of the Court of Justice of the European Union, the precautionary principle applies, inter alia, when interpreting and applying the EU environmental acquis, and therefore also to interpreting and applying Regulation (EC) No 338/97 and Regulation (EC) No 865/2006. EU Member States should apply the precautionary principle in exercising their discretion pursuant to Regulation (EC) No 338/97 (24).

a)   Applications for permits or certificates pursuant to Article 5 of Regulation (EC) No 338/97 (export and re-export)

In the circumstances described in Section 1 a) of this document, taking into account the precautionary principle and unless conclusive scientific evidence to the contrary comes to light, EU Member States should consider that there are indeed serious factors relating to the conservation of tigers that militate against the issuance of export permits and re-export certificates.

As a result, EU Member States should, in principle, not grant an export permits or re-export certificates for live captive-born and bred tigers and their parts and derivatives, except if the management authority is satisfied that the permit or certificate will be used for purposes that are not detrimental to the conservation of the species, more specifically in the following cases:

(i)	Live captive-born and bred tigers are intended for licensed zoological institutions (25) and/or exchange between licenced zoos as part of breeding or conservation programmes of zoological institutions (26) and not for primarily commercial purposes.

(ii)

Live captive-born and bred tigers are moved, for rescue purposes, to officially registered sanctuaries/rescue centres in third countries if no suitable sanctuary/rescue centre or zoological institution is available in the European Union, under the condition that the animals are kept in species-appropriate enclosures. Before issuing the export permit or re-export certificate, the Member State should receive confirmation from the CITES management authority of the destination country that the receiving sanctuary/rescue centre is an officially registered sanctuary/rescue centre, which has no known links to illegal activities and illegal trade. When deciding on whether to issue the permit or the re-export certificate, the management authority should take into account the country specific risk linked to illegal trade in live tigers and their parts and derivatives. Where relevant, other available options should be assessed, such as those specified in the guidelines annexed to CITES Resolution 17.8 on disposal of illegally traded and confiscated specimens of CITES-listed species.

(iii)

Live captive-born and bred tigers and their parts and derivatives are part of a legitimate research project, including scientific or (bio-) medical research, where specimens are intended for the advancement of science or for essential biomedical purposes, and where the species proves to be the only one suitable.

(iv)	Specimens are to be used for law enforcement purposes or judicial proceedings.

(v)

Parts and derivatives from captive-born and bred tigers are moved where: — the specimen is part of a genuine exchange of cultural or artistic goods between reputable institutions (e.g., museums); or — the management authority of the Member State concerned is satisfied that the specimen is a recognised piece of art and is confident that its value makes it certain that it will not be used for other purposes; or — the specimen is an heirloom moving as part of a family relocation or as part of a bequest and will not be sold.

If there is any doubt or scientific uncertainty, in light of the precautionary principle and the objectives of the legislation, Member States may always use their discretionary power to refuse the issuance of a permit.

b)   Applications for certificates pursuant to Article 8(3) of Regulation (EC) No 338/97 (intra-EU trade)

As explained in Section 1 b) Member States can refuse to grant a certificate if this is appropriate to protect the species or to guarantee its conservation, and if the refusal does not go beyond what is necessary to achieve that aim. This will be the case where the transaction is incompatible and inconsistent with the terms and objectives of Regulation (EC) No 338/97.

Due to the circumstances described in the first section of this document, Member States should, in principle, not make use of the exception under Article 8(3)(d) of Regulation (EC) No 338/97 to grant any certificate for intra-EU trade of live captive-born and bred tigers and their parts and derivatives. Member States may only consider granting certificates guided, inter alia, by the exemptions referred to in Article 8(3)(e)(f)(g) of Regulation (EC) No 338/97 for the following purposes that are not detrimental to conservation of the species:

(vi)	Live captive-born and bred tigers are intended for licensed zoological institutions (27) and/or exchange between licensed zoos as part of the breeding or conservation programme of zoological institutions and not primarily for commercial purposes;

(vii)

Live captive-born and bred tigers are moved for rescue purposes to an officially registered facility (28), under the condition that the animals are kept in species-appropriate enclosures and not used for further breeding. Before issuing the certificate, the Member State should receive confirmation from the CITES management authority of the destination Member State that the facility receiving the specimen is officially registered and has no known links to illegal activities and illegal trade;

(viii)

Live captive-born and bred tigers and their parts and derivatives are part of a legitimate research project, including scientific or (bio-) medical research, where specimens are intended for the advancement of science or for essential biomedical purposes, and where the species proves to be the only one suitable;

(ix)	Specimens are to be used for the purposes of law enforcement or judicial proceedings.

(x)

Parts and derivatives from captive-born and bred tigers are moved where: — the specimen is part of a genuine exchange of cultural or artistic goods between reputable institutions (e.g., museums); or — the management authority of the Member State concerned is satisfied that the specimen is a recognised piece of art and is confident that its value makes it certain that it will not be used for other purposes; or — the specimen is intended for research or education aimed at the preservation or conservation of the species.

If there is any doubt or scientific uncertainty, in light of the precautionary principle and the objectives of the legislation, Member States may always use their discretionary power to refuse the issuance of a certificate.

Where provisions under the domestic law of an EU Member State do not allow its authorities exercise the discretion allowed under Article 8(3) of Regulation (EC) No 338/97 and to refuse applications for intra-EU certificates for commercial trade in live captive-born and bred tigers and their parts and derivatives when conditions under Article 8(3) of Regulation (EC) No 338/97 are met, and where specimens are traded for non-commercial purposes within the EU, the Member State’s CITES management authority should follow a risk-based approach and ensure maximum scrutiny in handling applications for intra-EU certificates.

Prior to an intra-EU certificate being issued, Article 66 of Commission Regulation (EC) No 865/2006 requires that the live specimen be individually marked. It is recommended that the primary marking technique for live tigers be a microchip. Member States should consider the use of a combination of two different identification or marking techniques, including individual DNA profiling, if appropriate. The certificate should describe the live specimen and/or the relevant parts and derivatives with sufficient detail to ensure that it can only be used for that specific specimen and cannot be used to launder other specimens.

Certificates for intra-EU trade should only be issued on a transaction-specific basis – allowing one transaction only – to ensure that the certificate is only valid for the holder named in Box 1 of the certificate. This recommendation is based on the second subparagraph of Article 11(3) of Regulation (EC) No 865/2006, allowing Member States to ‘issue transaction-specific certificates where it is considered that there are other factors, as described in Section 1 a) of this document, relating to the conservation of the species that militate against the issuance of a specimen-specific certificate’.

c)   Additional recommendation to be considered by the Member States

It is recommended that Member State CITES management authorities gather and maintain records of the numbers of tigers held in all captive facilities nationwide, including licensed zoological institutions, sanctuaries /rescue centres, circuses and travelling exhibitions, and where applicable other private facilities. All facilities should be asked to submit details of any changes to their inventories so that authorities have up-to-date information. To implement this measure, EU Member States should conduct regular inventories of all facilities that keep tigers in their country, and work with relevant organisations, such as the European Association of Zoos and Aquaria, for best practices in developing such inventories. Management authorities should make this data available to all relevant authorities.

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(1)  ‘Captive born and bred tigers’ in this document are those that meet the criteria in Article 54 of Regulation (EC) No 865/2006.

(2)  Goodrich, J., Lynam, A., Miquelle, D., Wibisono, H., Kawanishi, K., Pattanavibool, A., Htun, S., Tempa, T., Karki, J., Jhala, Y. Karanth, U. (2015). Panthera tigris. The IUCN Red List of Threatened Species 2015: e.T15955A50659951.

(3)  Goodrich, J., Lynam, A., Miquelle, D., Wibisono, H., Kawanishi, K., Pattanavibool, A., Htun, S., Tempa, T., Karki, J., Jhala, Y. Karanth, U. (2015). Panthera tigris. The IUCN Red List of Threatened Species 2015: e.T15955A50659951.

(4)  Wong, R. and Krishnasamy, K. (2019). Skin and Bones Unresolved: An Analysis of Tiger Seizures from 2000-2018. TRAFFIC South East Asia Regional Office. Petaling Jaya, Selangor, Malaysia.

(5)  Mainly in Thailand and Vietnam, also Laos, Malaysia, and Cambodia. See: Wong, R. and Krishnasamy, K. (2019). Skin and Bones Unresolved: An Analysis of Tiger Seizures from 2000-2018. TRAFFIC South East Asia Regional Office. Petaling Jaya, Selangor, Malaysia. pages 1, 2, 13, 21, 28, 36, 37.

(6)  CITES Trade database. Available at: https://trade.cites.org/.

(7)  Austria, Belgium, Bulgaria, Cyprus, Denmark, Finland, Greece, Hungary, Ireland, Latvia, Malta, the Netherlands, Portugal, Romania, and Sweden only permit the keeping and breeding of tigers in legitimate and licensed zoos.

(8)  Croatia, Estonia, Luxembourg, Slovakia, and Slovenia permit the keeping and/or breeding of tigers in private facilities.

(9)  Italy, Lithuania, and Poland permit the keeping and breeding of tigers in circuses and travelling exhibitions.

(10)  Czech Republic, France, Germany, and Spain permit the keeping and breeding of tigers in private facilities and circuses.

(11)  Musing, L. (2020) Falling through the system: The role of the European Union captive tiger population in the trade in tigers. A TRAFFIC and WWF report. Cambridge, UK.

(12)  SC70. (2018a). Illegal tiger trade in the Czech Republic. Inf. Doc. 24. Seventieth meeting of the CITES Standing Committee Rosa Khutor, Sochi (Russian Federation), 1-5 October 2018.

(13)  EU-TWIX is a tool that facilitates information exchange on illegal wildlife trade in Europe. It is a centralised database on seizure and offences reported by all EU Member States. see: https://www.eu-twix.org

(14)  https://tvn24.pl/magazyn-tvn24/bulion-z-kosci-jak-tygrysy-ida-na-czesci,243,4203.

(15)  Available at: https://cites.org/eng/disc/text.php#VII.

(16)  Available at: https://www.cites.org/sites/default/files/document/E-Res-12-05-R18.pdf.

(17)  Available at https://cites.org/eng/taxonomy/term/42069.

(18)  According to CITES Notification 2008/059 regarding tiger breeding operations and matters relating to Decision 14.69, parties were invited to consider guidance issued by the CITES Secretariat in determining whether Decision 14.69 is applicable to a party. This included guidance that ‘trade, in the opinion of the Secretariat, may be regarded for the purposes of this Decision as referring to both domestic and international trade’. See: Annex ‘Matters related to Decision 14.69’ to Notification No 2008/059 of the CITES Secretariat ‘Tiger-breeding operation’: https://cites.org/sites/default/files/notif/E059.pdf.

(19)  Available at: https://cites.org/eng/taxonomy/term/42047.

(20)  Available at: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31997R0338.

(21)  Available at: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32006R0865.

(22)  According to Article 8(1) the purchase, offer to purchase, acquisition for commercial purposes, display to the public for commercial purposes, use for commercial gain and sale, keeping for sale, offering for sale or transporting for sale of specimens of the species listed in Annex A is prohibited.

(23)  See paragraph 34 of the ruling of the European Court of Justice in Case C-510/99: ‘That provision authorises, but does not require, exemptions from the prohibition it lays down’.

(24)  For further considerations on the application of the precautionary principle, please refer also to the Communication from the Commission on the precautionary principle of 2 February 2000, COM(2000) 1 – https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A52000DC0001 .

(25)  In the EU, a licenced zoo must be registered in line with Council Directive 1999/22/EC, the ‘EU Zoos Directive’. For third countries, a licenced zoo must be part of a recognised breeding programme. See also Annex.

(26)  Relevant examples include the European Endangered Species Programme (EEP), American Species Survival Plan (SSP), Australasian Species Management Program (ASMP) or Global Species Management Plans (GSMP). See Annex I for further details.

(27)  In the EU, a licenced zoo must be registered in line with Council Directive 1999/22/EC, the ‘EU Zoos Directive’.

(28)  An officially registered facility with the intention of rescue includes rescue centres, sanctuaries, and zoological institutions.