HAVET & VANHUFFEL – Association d’avocats
In Case C-601/24, the Court of Justice of the European Union was asked to give a preliminary ruling following a request from a Polish court in the context of criminal proceedings brought against a Ukrainian national who had brought into Poland, without an import permit, several boxes of tablets containing an extract of Japanese seahorse, a species protected under Regulation No 338/97 on the protection of species of wild fauna and flora by regulating trade therein.
The defendant had legally purchased those tablets in a pharmacy in Ukraine and imported them for his own therapeutic needs or those of a relative.
The Polish authorities nevertheless considered that such importation constituted a criminal offence punishable by a term of imprisonment.
The referring court asked the Court whether a medicinal product containing an extract of Japanese seahorse could be regarded as a ‘specimen’ within the meaning of Regulation No 338/97, whether such a product could fall within the concept of ‘personal or household effects’, and whether EU law permitted the imposition of criminal penalties in such circumstances.
The Court first recalled that Regulation No 338/97 implements the CITES Convention within the European Union, the purpose of which is to ensure that international trade in protected species does not threaten their conservation. As regards the concept of a ‘specimen’, the Court noted that Article 2(t) of the Regulation adopts a very broad definition. It covers not only protected animals and plants but also any part or derivative thereof, even when incorporated into other goods.
The Court emphasised that a restrictive interpretation of that concept would undermine the objectives of protection pursued by the Regulation by allowing certain products derived from protected species to escape the controls applicable upon their importation into the European Union. In the present case, the tablets at issue contained an extract of Japanese seahorse belonging to the genus Hippocampus, which is listed in Annex B to the Regulation. Accordingly, that preparation constitutes a ‘specimen’ within the meaning of EU law.
The Court further clarified that the possible classification of the product as a medicinal product within the meaning of Directive 2001/83 has no bearing on that conclusion.
No provision of the Regulation excludes medicinal products from its scope where they contain components derived from protected species.
The Court then examined the concept of ‘personal or household effects’, which provides for a derogation from the import formalities normally applicable to protected specimens.
It recalled that this derogation applies to goods owned by an individual and intended for personal use, provided that they are not intended for any commercial purpose. The absence of a profit-making objective is therefore the key criterion for benefiting from that exception.
According to the Court, a preparation containing an extract of Japanese seahorse, legally acquired in a third country and brought into the European Union for the personal therapeutic needs of an individual or a relative, may fall within the concept of ‘personal or household effects’.
However, the application of that derogation remains subject to compliance with the conditions laid down in Article 57 of Regulation No 865/2006, in particular those relating to transport in the traveller’s personal baggage or a transfer of residence.
It is for the national court to determine whether those conditions are satisfied in the case at hand.
The Court also clarified that the specific exemption from the requirement of a re-export document for the introduction of no more than four dead seahorses does not apply to tablets containing a seahorse extract.
That exception must be interpreted strictly and concerns only the dead specimens themselves.
Lastly, with regard to criminal penalties, the Court recalled that Article 16 of Regulation No 338/97 requires Member States to penalise infringements of the rules protecting species, without excluding the possibility of criminal sanctions where they are proportionate to the seriousness of the offence.
The Court concluded that criminal penalties cannot be imposed where the importation falls within the derogation applicable to personal or household effects. Conversely, where the conditions for that derogation are not met, Member States may provide for criminal penalties, provided that those penalties comply with the principle of proportionality.
The Court hereby rules:
1. Article 2(t) of Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein, as amended by Regulation (EC) No 398/2009 of the European Parliament and of the Council of 23 April 2009, must be interpreted as meaning that: « a preparation whose complex composition includes, inter alia, an extract of Japanese seahorse, listed in Annex B to Regulation No 338/97, as amended, falls within the concept of a “specimen” within the meaning of that provision ».
2. Article 2(j) and Article 7(3) of Regulation No 338/97, as amended by Regulation No 398/2009, must be interpreted as meaning that « a preparation whose complex composition includes an extract of Japanese seahorse, listed in Annex B to Regulation No 338/97, as amended, which was lawfully purchased in a third country and brought into the European Union for the personal therapeutic needs of an individual or those of a close relative, and not for commercial purposes, must be regarded as falling within the concept of “personal or household effects”. Consequently, its introduction into the Union is exempt from the requirement to present an import permit or, where applicable, a (re-)export document, provided that the conditions laid down for that purpose in Article 57(1) and (3) of Commission Regulation (EC) No 865/2006 of 4 May 2006 laying down detailed rules concerning the implementation of Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein are satisfied ».
3. Article 16 of Regulation No 338/97, as amended by Regulation No 398/2009, must be interpreted as meaning that « it precludes national legislation which provides for criminal penalties for the introduction into the European Union, without an import permit or, where applicable, without a (re-)export document, of a preparation lawfully purchased in a third country, whose complex composition contains an extract of Japanese seahorse listed in Annex B to Regulation No 338/97, as amended, by a private individual for his or her own therapeutic needs or those of a close relative, and not for commercial purposes, where such introduction falls within the derogation provided for in Article 7(3) of Regulation No 338/97, as amended, and specified in Article 57 of Regulation No 865/2006.
By contrast, it does not preclude such national legislation where the introduction into the Union of such a preparation does not fall within that derogation, provided that the applicable criminal penalty complies with the requirements of proportionality inherent in Article 16(2) of that regulation ».
To access the judgment, follow the link bellow : https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX:62024CJ0601