Source: All England Reporter
Publisher Citation: [2008] All ER (D) 243 (Jun)
Court: Court of Justice of the European Communities (Third Chamber)

Judges Rosas (President of the Chamber), Cunha Rodrigues (Rapporteur), Klucka, Lindh and Arabadjiev

Judgment Dates: 19 June 2008


European community - Freedom of movement - Goods - Protection of species of wild fauna and flora - Prohibition on holding animals of certain species referred to in national law - Holding permitted in other member states - EC Treaty, arts 28, 29, 30 - Council Regulation (EC) 338/97.

The Case

Articles 28 and 30 of the EC Treaty, read separately or in conjunction with Council Regulation (EC) 338-97 (on the protection of species of wild fauna and flora by regulating the trade therein), did not preclude national legislation, such as that in the main proceedings, under which a prohibition on importing, holding or trading in mammals belonging to species other than those expressly referred to in that legislation applied to species of mammals which were not included in Annex A to the Regulation, if the protection of or compliance with certain interests and requirements could not be secured just as effectively by measures which obstructed intra-Community trade to a lesser extent. Those interests included the protection of animal welfare. It was for the national court to determine (i) whether the drawing up of the national list of species of mammals which might be held and subsequent amendments to that list were based on objective and non-discriminatory criteria; (ii) whether a procedure enabling interested parties to have species of mammals included in that list was provided for, was readily accessible and could be completed within a reasonable time, and whether, where there was refusal to include a species, it being obligatory to state the reasons for that refusal, that refusal decision was open to the challenge before the courts; (iii) whether applications to obtain the inclusion of a species of mammal in that list or to obtain individual derogations to hold specimens of species not included in that list might be refused by the competent administrative authorities only if the holding of specimens of the species concerned posed a genuine risk to the protection of the above mentioned interests and requirements; and (iv) whether such conditions for the holding of specimens of mammals not referred to in that list were objectively justified and did not go beyond what was necessary to achieve the objective pursued by the national legislation as a whole.

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