Committee on Petitions NOTICE TO MEMBERS

Transcription

1 EUROPEAN PARLIAMT Committee on Petitions NOTICE TO MEMBERS Subject: Petition 0117/2010 by Angeliki Charokopou (Greek) on behalf of 19 Greek animal welfare associations concerning the Greek authorities' circular on the transport of stray cats and failure to comply with applicable EU legislation in this area. 1. Summary of petition The petitioner refers to the circular on the transport of stray pets, which was issued by the Hellenic Ministry for Rural Development and Food in 2008, and which she claims is contrary to a number of applicable EU legal acts in this sector. The petitioner refers ín particular to Regulation (EC) No 998/2003 of the European Parliament and of the Council on the animal health requirements applicable to the non-commercial movement of pet animals and Council Directive 92/65/EEC laying down animal health requirements governing trade in and imports into the Community of animals, semen, ova and embryos not subject to animal health requirements laid down in specific Community rules referred to in Annex A (I) to Directive 90/425/EEC. The petitioner points out that the circular in question, inter alia, introduces provisions on the maximum number of pets (2 dogs or 2 cats) which Greek citizens have the right to be in possession of and provisions on compulsory repatriation of pets leaving Greece which restricts the possibilities of having stray pets adopted by citizens in other EU Member States. One of the petitioner's clients, the Panhellenic Association of animal lovers, has previously complained to the Greek Ombudsman, who has so far unsuccessfully asked the Ministry for Rural Development and Food for an explanation. The petitioner therefore calls on the European Parliament to take this dubious matter up up. 2. Admissibility Declared admissible on 3 May Information requested from Commission under Rule CM\ doc PE v01-00 United in diversity

2 202(6). 3. Commission reply, received on 10 November The petition refers to the non-commercial and commercial movement of animals belonging to species that under certain conditions are considered pet animals under Union law, in particular dogs. It is alleged that Greek Law 3170/2003 and in particular the Greek Circular n / contain a number of provisions contrary to the Treaty on the Functioning of the European Union and secondary Union legislation. These challenged provisions: fix as five the maximum number of pet animals that can be moved between Member States for non-commercial purposes; fix as two the maximum number of pet animals that o every Greek citizen 1 may keep, o an individual (whether a Greek or foreign national) may adopt; require Greek travellers, prior to their travel abroad, to sign a declaration that they intend to return with their animals; require that the owner of a pet animal is a natural person 2 require the issue of an animal health certificate by "the relevant prefectural veterinary authority" for commercial movement in addition to the passport in the event of a commercial dispatch of pet animals. It is moreover alleged that Union legislation on the inspection of animal at Border Inspection Posts is not correctly implemented. The Commission's comments on the petition The Commission will comment on the following three questions: a) Does the right of free movement of persons include a right to free movement of pet animals accompanying their owners? Article 21(1) of the Treaty on the Functioning of the European Union (TFEU - ex-18 (1) EC) rules that Every citizen of the Union shall have the right to move and reside freely within the territory of the MS, subject to the limits and conditions laid down in this Treaty and by the measures adopted to give it effect. Moreover Article 45(1) TFEU (ex-39(1) on the free movement of workers, Article 49 TFEU (ex-43 EC) on the freedom of establishment (selfemployed persons) and Article 56 TFEU (ex-49 EC) on the freedom to provide and receive services are relevant for the free movement of persons. Associated rights of entry and 1 The petition is not clear on whether the term 'Greek citizens' refers to persons possessing a Greek passport or are residents of Greece. The Greek Circular n / uses the terms 'Greek citizen', 'Greek traveller' and 'Greek individual' synonymously. As a result the precise addressees of this provision cannot be identified. 2 so that legal persons such as welfare organisations would be excluded while they are required by the Law 3170/2003 to collect stray dogs and to take care of their adoption on behalf of the municipalities PE v /6 CM\ doc

3 residence are provided for family members of relevant persons (family/derivative/dependent rights are addressed in secondary legislation, in particular Directive 2004/38 1 ) and case law. All of these rights are limited to the movement of people. The legal status of animals is that of objects or goods (albeit it is recognised in Article 13 TFEU that all animals are sentient beings). Thus pet animals are nowhere given the status of 'family members' as the petitioner seems to suggest. It is therefore not obvious that any restriction on the free movement of pet animals between the Member States of the Union conflicts with primary legislation of the European Union as the petitioner states (under point 3, second last paragraph). To the contrary, the movement of pet animals is subject to the limits and conditions laid down in measures adopted to give effect to the Treaty, in particular Regulation 998/2003 (see below). Those measures are based on Article 168 TFEU (ex 152 public health) and 43 TFEU (ex 37- agriculture) (as far as animal health and welfare is concerned (see below)). The right of free movement of persons does therefore not include the right of persons to be accompanied by their pet animals. b) What competence do Union institutions have with respect to the movement of pet animals? European Institutions have their competences conferred to them by the Member States. Competences not conferred upon the Union remain with the Member States (Article 1-5 of the Treaty on European Union). Thus Union legislation and competence in the area of animal health and welfare is governed by Article 43 TFEU (ex 37 agriculture). In consequence the Union institutions have no powers as regards purely national rules on the owning/keeping and movement of animals within a Member State. To this extent, it must be noted that the Greek Law 3170/2003 on the mandatory marking seems to apply to national movements and appears therefore not to have any relevance with respect to infringement of Union law. c) Is the Greek legislation in conflict with Union law? Union legislation on the movement of species that may be considered pet animals under Union law is governed by two basic provisions: Council Directive 92/65/EEC, based on Article 43 TFEU (ex 37), lays down the animal health requirements for trade in and imports into the European Union of animals and products of animal origin not covered in this respect by specific Union legislation. It lays down the animal health requirements applicable to trade in, amongst others, ferrets, cats and dogs. It explicitly does not "affect the national rules applicable to pet animals, although their retention may not jeopardize the abolition of veterinary checks at the frontiers between Member States." Because Directive 92/65/EEC did not harmonise the conditions for the movement of pet animals, the European Parliament and the Council adopted, based on Article 168 TFEU (ex public health), because of rabies, and 43 TFEU (ex 37), Regulation (EC) No 998/2003 on the animal health requirements applicable to the non-commercial movement of pet animals and amending Council Directive 92/65/EEC ('The Regulation'). The Regulation provides 1 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/ EEC and 93/96/EEC - OJ L 229, , p. 35 CM\ doc 3/6 PE v01-00

4 specific rules for the non-commercial movement of pet animals. Its scope is limited to those species listed in its Annex I (Article 2). It defines pet animals as animals "which are accompanying their owners or a natural person responsible for such animals on behalf of the owner during their movement and are not intended to be sold or transferred to another owner". It is our understanding that the movement of the owner may cause a need to move also the pet animal, either directly accompanying the owner or separated from the owner in space and time in which case the animal is moved under the responsibility of a person acting on behalf of the owner. Concerning the non commercial movement of pet animals After the petition had been submitted and since the adoption of Commission Regulation (EU) No 388/2010 of 6 May 2010 implementing Regulation (EC) No 998/2003, the conditions and checks provided for in Directive 92/65/EEC apply to movements of more than five pet animals into a Member State from another Member State or a third country listed in Section 2 of Part B of Annex II to that Regulation. In this respect, the submission put forward by the petitioner that the Circular sets a threshold (5) above which the movement of pet animals between Member States is considered to be commercial and subject to the conditions of Directive 92/65/EEC is in line with the current legislation in force. On national grounds, the Greek circular establishes a maximum limit of two pet animals which could be owned/kept or adopted. As a consequence, this national limit restricts the number of pet animals that may accompany their owner when the owner moves. However the rules on owning/keeping pet animals within a Member States are outside the scope of the Regulation (and outside of the powers conferred to the Union's institutions - see point b above). As a result these rules do not contradict the rules of the Regulation. Similarly, the Greek circular obliges Greek travellers going abroad with pet animals to undertake to return with their animals or to provide proof of their death if they return without them. This provision, is probably meant to avoid that commercial movements operated by suspicious welfare organisations are fraudulently disguised as non-commercial movements of pet animals within the meaning of the Regulation, which explicitly defines 'pet animal' as animals of certain species not intended to be sold or transferred to another owner. This provision appears to add a further criterion to the movement of pet animals besides those laid down in Regulation (EC) No 998/2003. It must be noted that Regulation (EU) No 388/2010, setting a maximum number of pets that can be moved as non-commercial seeks to address the problem of commercial movements disguised as non-commercial movements of pets. According to the Greek circular the legality of the activity of welfare organisations conferred by municipalities is not put into question. However, according to the circular their activity cannot be considered to be of a non-commercial character. Indeed, the movement of pet animals under the responsibility of a natural person acting on behalf of the owner with the intention of being adopted by natural persons in another Member State leads to a change in or acquisition of the ownership of the animal, that requires an update in the ownership declaration in the passport. As a result, the animal being moved for that purpose cannot be considered to be a "pet animal" within the meaning of the Regulation and therefore the movement falls outside of the scope of Regulation (EC) No 998/2003 and is covered by the requirements of Council Directive 92/65/EEC. PE v /6 CM\ doc

5 However, since according to available information on the Greek circular, welfare organisations are not authorised to own the animals to be adopted because they are considered legal persons, the owner whom the animal is going to accompany to another MS, either directly or under the responsibility of a representative, should adopt the animal in Greece and his ownership be documented in the passport before the movement takes place. In that case the ownership and the purpose of the movement are established before such movement, therefore it falls within the scope of the Regulation. As the Law 3170/2003 appears to refer to owner without specifying nationality or residence, it would require the new owner to fully comply with the national registration procedures provided for in that Law and this certainly would limit the number of dogs that can be owned to 2. Concerning the commercial movement of animals Article 10(2) of Directive 92/65/EEC states that "[t]o be the subject of trade, dogs cats and ferrets must satisfy the requirements set out in Article 5 and 16 of Regulation (EC) No 998/2003 [ ]". Article 5 of Regulation (EC) No 998/2003 requires pet animals of the species referred to in Annex I Parts A and B to be identified in accordance with Article 4 of the same Regulation and be accompanied by a passport issued by a veterinarian authorised by the competent authority certifying valid anti-rabies vaccination, or revaccination if applicable. However, the second paragraph of Article 10 (2) of Directive 92/65/EEC goes on to say that "[t]he certificate accompanying the animals must also confirm that, 24 hours before dispatch of the animals, a clinical examination as carried out by a veterinarian authorised by the competent authority showing the animals to be in good health and able to withstand carriage to their destination". In light of the above, it is clear that in the case where an animal of a species listed in Annex I to Regulation (EC) No 998/2003 is moved to another Member State for commercial purposes, the animal must not only be identified and have a valid anti-rabies vaccination attested in its passport, but must also be accompanied to the place of destination by a printed version of a health certificate. This certificate is issued by an official veterinarian of the Member State of origin and endorses a clinical examination carried out and documented in Section IX of the passport by a veterinarian authorised by the competent authority, within 24 hours prior to dispatch to show that the animal is in good health and able to withstand carriage to its destination. To ensure traceability, the movement is notified by the official veterinarian to the competent authorities of destination through a computerized system (TRACES) on the day of certification in accordance with Article 4(2) of Council Directive 90/425/EEC. In this regard, the additional requirement of providing a certificate as referred to in the petition is in line with Union law. To this extent the allegation that such a requirement has an equivalent effect as that of a quantitative restriction on the free movement of goods does not stand. The provisions of Council Directive 92/65/EEC apply to imports of respective animals from third countries for commercial purposes, the consignment being subjected by the competent authority to the checks provided for in Council Directive 91/496/EEC at a veterinary border inspection post approved for that purpose. No evidence is provided in the petition which would indicate that the Greek authorities have CM\ doc 5/6 PE v01-00

6 consistently failed to implement the above mentioned EU rules. As regards young animals under 3 months old, the movement into a Member State may be allowed by that Member State if the conditions in Article 5 (2) of Regulation 998/2003 are fulfilled. Conclusion The allegations put forward by the petitioner that the provisions of the Greek Circular n / hinder the free movement of people given the restrictions and/or limitations on the owning/keeping and movement of pets cannot be supported since, as mentioned above, the right to free movement of persons does not include the right to be accompanied by their pets. The provisions of the Greek Circular n / challenged in the petition are not in conflict with Union law on animal health when applied to the commercial movement of animals. Part of the issues related to the non-commercial movement of animals, i.e. ownership or adoption, fall outside of Union competences. It should be noted however, that the scope of this part is not completely comprehensible due to the ambiguity in the use of terms in the Circular, i.e. 'Greek citizen', 'Greek traveller' and 'Greek individual', 'return with his/her pet animal'. For completeness it should also be noted that the petitioner has also lodged a complaint on the matter with the Commission. Based on the above considerations, the Commission sent a pre closure letter highlighting the abovementioned argumentation and giving the complainant four weeks to send any comments and/or observations. Given the summer break the complainant requested an extension of the deadline which was granted. The comments have now been received from the complainant and are now under assessment for further steps. PE v /6 CM\ doc