The European Union and wildlife trafficking

In case C-100/08       , the CJEU had to decide on the compatibility with EU law of Belgian measures - such as the prohibition of import, holding and selling, which also restricted trade in born and bred in captivity for birds which were placed on the market in other Member States and which complied with the requirements of Regulation 338/97 and Regulation 865/2006. The CJEU held that the Belgian measures went beyond the provisions of the latter Regulations, which were in principle allowed under the present Article 193 TFEU. However, the measures constituted a barrier to trade under the present Article 34 TFEU and could not be justified under Article 36 TFEU, as they were disproportionate.

Case C-344/08 concerned a Polish citizen who had acquired exotic spiders which were protected under Annex B of Regulation 338/97. He began breeding these spiders and sold them on the internet. He was accused, in criminal proceedings, of having illegally traded in these animals and the question became relevant as to whether he had to prove that he had lawfully acquired the spiders or whether the public authorities had to prove that he acquired them illegally. Article 8(5) of the Regulation states, in this regard, that commercial activities with regard to Annex B-specimens are prohibited, "except where it can be proved to the satisfaction of the competent authority" that they were legally acquired.

This provision might be in conflict with the presumption of innocence in criminal proceedings. The CJEU did not finally decide on this issue. It declared that the national rules on evidence were applicable, but that the presumption of innocence was valid also in cases concerning Annex A- or B-specimens.