EU Commission proposes new rules to ban trade in ivory

On 28 January 2021, the European Commission published a draft regulation and guidance to ban the EU trade in ivory, subject to limited exceptions. Both instruments are open for final public feedback until 25 February 2021 on the Commission’s ‘Have your say’ page. We strongly encourage parties affected by these proposed rules to submit their views to the Commission. Although the UK is no longer part of the European Union, the draft regulations will impact not only trade between EU Member States but also between Member States and the UK.

The trade in, import into or export from the European Union of items containing ivory is already strictly regulated by Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora (as implemented by Commission Regulation (EC) No 865/2006). The proposed measures stem from the Commission’s efforts to ramp up its fight against ivory trafficking and elephant poaching.

The effect of the new measures is to simplify and strengthen the current rules whilst permitting only limited exceptions. The proposed rules and guidance would result in the following key restrictions:

  • The suspension of import into the EU for commercial purposes and of internal EU trade for commercial purposes of raw ivory. In respect of intra-EU trade, there is a limited exception, for the repair of musical instruments. These exceptions will be considered on a case-by-case basis and will require a certificate to be issued by a national Management Authority.
  • The suspension of internal EU trade for commercial purposes of worked ivory acquired in the EU between 1975 and 1990, and the limitation of the internal trade in worked items to pre-1975 musical instruments and pre-1947 items (called “antiques” in the guidance), subject to the issuance of a certificate.
  • The suspension of re-export from the EU and import into the EU of worked ivory acquired in the EU between 1947 and 1975, except for musical instruments and subject to the issuance of a certificate or permit.
  • The suspension of the import into the EU and re-export from the EU for commercial purposes of pre-1947 worked items, except for musical instruments and subject to the issuance of a certificate or permit. We understand no exceptions for antiques have been carved out.
  • With regards to the prohibition on re-exports and imports, the guidance suggests that national Management Authorities may issue a permit where the item under scrutiny is part of a genuine exchange of cultural goods between reputable institutions (e.g. museums), an heirloom moving as part of a family relocation or moved for enforcement, scientific or educational purposes.

A more detailed summary of the current regime and the proposed measures can be found in this guidance document produced by the Commission. This also sets out which documents are required in order to engage in the activities permitted by the proposed rules.

Following the public consultation, the proposed rules will be subject to review by the Committee on Trade in Wild Fauna and Flora and to the scrutiny of the Council and the European Parliament before they can be adopted by the Commission. We publish regular updates about the fast-changing framework for the trade in objects containing ivory on our dedicated Insights Page, offering further guidance and information to those specifically interested in this topic. If you would like to discuss how the proposed EU restrictions might affect you once in force, or discuss the steps you can take to mitigate the impact of the proposed EU framework, please contact us at: info@constantinecannon.co.uk.