Criminal proceedings v. Jan Nilsson

Hässleholms tingsrätt (Hässleholm District Court) referred to the Court for a preliminary ruling under Article 234 EC questions on the interpretation 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 Commission Regulation (EC) No 2307/97 of 18 November 1997, and of Commission Regulation (EC) No 1808/2001 of 30 August 2001 laying down detailed rules concerning the implementation of Regulation No 338/97. The questions were raised in criminal proceedings against Mr. Nilsson based on the alleged infringement by him of the Swedish Law 1994:1818 on protected species of fauna and flora. The Convention on International Trade in Endangered Species of Wild Flora and Fauna was implemented in the Community with effect from 1 January 1984 by Council Regulation (EEC) No 3626/82 of 3 December 1982 on the implementation in the Community of the Convention on international trade in endangered species of wild fauna and flora, which was repealed by Regulation No 338/97, Article 21(1). According to the definition in Article 2(w) of that regulation, specimens that were significantly altered from their natural raw state for jewellery, adornment, art, utility, or musical instruments were to be considered as worked specimens if they were clearly in one of those categories and required no further carving, crafting or manufacture to effect their purpose. Accordingly, the Court held that Articles 2(w) and 8(3)(b) of Regulation No 338/97 were to be interpreted as meaning that animals which have been stuffed fell within the definition of worked specimens for the purpose of those provisions. The Court furthermore held that the concept of “acquired” for the purposes of Article 8(3)(b) of Regulation No 338/97 concerned any taking into possession with a view to personal possession. Consequently, Article 8(3)(b) of Regulation No 338/97 had to be interpreted as meaning that receiving specimens as a gift or inheriting them, or killing animals and then taking them into one’s possession, made them acquired. Finally, regarding the question of whether the person who acquired the specimen more than 50 years previously had to be the present owner, the purpose of Article 8(3)(b) of Regulation No 338/97 was to exclude old items, that was, worked specimens created before 3 March 1947, from the scope of the prohibitions provided for in Article 8(1) of that regulation. Accordingly, Article 8(3)(b) of that regulation had to be interpreted as meaning that it also applied to worked specimens which were first acquired before 3 March 1947 and which were the subject of a new acquisition thereafter.