CONTRIBUTION TO NOTIFICATION 2026/0351/ES (Notification 28222) - Directive (EU) 2015/1535
Draft Royal Decree developing the List of Domestic Companion Animal Species and the Positive List of Companion Animals
Subject: barriers to trade in the internal market and legal uncertainty

I submit this contribution as an interested person within the procedure for the provision of information on technical regulations under Directive (EU) 2015/1535. In my view, the notified Draft Royal Decree - and Law 7/2023 which it implements - constitute a barrier to trade in captive-bred companion animals, both through the restriction they impose and through the serious legal uncertainty they generate, and the reasons given in the notification message do not justify them.

1. THE MEASURE CLOSES THE SPANISH MARKET TO ANIMALS LAWFULLY TRADED IN THE UNION

The Positive List of Companion Animals (LPAC) works as a market-access list: only listed species may be kept, bred or traded in Spain, and any non-listed species is prohibited (Article 10(11)). This prohibition reaches animals born and bred in captivity that are lawfully bred and sold in other Member States under Regulation (EC) No 338/97. It is therefore a measure having equivalent effect to a quantitative restriction on imports, contrary to Article 34 of the Treaty on the Functioning of the European Union (TFEU), and it fragments the internal market guaranteed by Article 26 TFEU.

2. THE PROHIBITION DOES NOT DISTINGUISH BETWEEN THE WILD-CAUGHT ANIMAL AND THE CAPTIVE-BRED ONE

Union law does distinguish between the two, and the Draft ignores this:
- Article 12(2) of Directive 92/43/EEC (Habitats Directive) limits the prohibition of keeping, transport and sale to "specimens taken in the wild", not to captive-bred ones.
- The Court of Justice, in Didier Vergy (C-149/94), distinguished captive-bred specimens from those taken in the wild.
- Article 8(3) of Regulation (EC) No 338/97 expressly derogates from the commercial ban for animals born and bred in captivity with their documentation.
- The Court of Justice, in Tridon (C-510/99), held that an absolute ban on trading captive-bred animals is disproportionate.

The Draft, by contrast, prohibits alike on the basis of the species, without regard to the origin of the animal. Its recitals even state that an animal bred in captivity "is not a domestic animal, but merely habituated to human presence", which contradicts Article 465 of the Civil Code (as amended by Law 17/2021), which assimilates domesticated animals to domestic or companion animals.

3. THE REASONS GIVEN IN THE NOTIFICATION MESSAGE DO NOT WITHSTAND ANALYSIS

- The CETS 125 Convention and its Article 4 do not authorise any list of species: Article 4 governs the welfare conditions of an animal already kept, not which species may be kept. The Convention defines a companion animal by its function, without lists.
- The European Parliament Resolution of 24 November 2022 is not binding. Moreover, the EU Action Plan against Wildlife Trafficking (COM(2022) 581 final), to which that Resolution refers, confines any positive list to "specimens taken from the wild", confirming the very distinction that the Draft erases.
- The claim that positive lists are better than negative ones is an opinion, not a technical fact. Several Member States use negative lists that are fully precautionary.
- The control of illegal trafficking is already regulated by Regulation (EC) No 338/97 and, in Spain, by RD 7/2018. The list adds nothing to that control and instead prohibits captive-bred animals that those instruments permit.

4. A PARTICULARLY SERIOUS CRITERION: THE RD 570/2020 LIST TURNED INTO A MARKET VETO

Criterion (k) of Annex I excludes from the LPAC any species included in Royal Decree 570/2020. But that Royal Decree is a rule for controlling the IMPORTATION of non-native species from third countries, enacted under the foreign-trade competence (Article 149.1.10 of the Constitution). The Royal Decree itself expressly acknowledges in its recitals that it "does not address the importation of specimens circulating freely within EU territory, but only that of species coming from third States". In other words: any of those species may be freely brought into Spain from a German or Portuguese port, and RD 570/2020 admits it. It was never a barrier to internal trade.

Moreover, appearing on that list does not even entail a ban on importing: it is enough for the risk analysis of the first importation to be favourable for the species to be removed from the list and subsequent imports to be free. It is a case-by-case screening with assessment, not a veto.

The Draft turns that import list into grounds for automatic exclusion from the internal market, and it does so WITHOUT carrying out the risk assessment that the rule of origin itself requires, and without weighing any criterion (Article 12.4 allows any of them to be "exclusionary"). The result is absurd: the budgerigar (Melopsittacus undulatus) - bred in captivity for over a century, not in any CITES Appendix or in the European list of invasive species - would be excluded from the LPAC merely for appearing on a list designed to control imports at ports and airports, even though it can be freely brought in from any other Member State. The same would happen with the chinchilla, the guppy or the Gouldian finch, species commonly found in aquariums and aviaries across Europe. The measure inverts the logic of its rule of origin: where that one assessed in order to permit, this one excludes without assessing.

5. THE RISKS INVOKED ARE ALREADY REGULATED BY THE UNION, AND NO ASSESSMENT IS PROVIDED

The notification message acknowledges that the measure affects trade and merely states that the obligations "are considered proportionate", without providing any risk assessment. But the precautionary principle justifies restrictions only where there is a real risk demonstrated with scientific data, and the burden of proving it lies with the State (Andibel judgment, C-219/07). Moreover, the risks it invokes are already covered by European legislation that assesses species by species:
- Invasive-species risk: Regulation (EU) No 1143/2014.
- Sanitary and disease risk: Regulation (EU) 2016/429 (Animal Health Law).
- Animal welfare: Article 13 TFEU and Article 4 of CETS 125.
A blanket species-based prohibition, superimposed on those frameworks and without a risk assessment, is neither necessary nor proportionate, and cannot be covered by Article 36 TFEU.

6. THE GREATEST OBSTACLE IS LEGAL UNCERTAINTY: NO ONE CAN KNOW WHICH RULE APPLIES

In Spain, each law must state expressly under which constitutional competence it is enacted; a competence that is not claimed is not deemed to have been exercised. Foreign trade belongs exclusively to the State under Article 149.1.10 of the Constitution, and it is by that route that Regulation (EC) No 338/97 is applied in Spain. Now, Article 32 of Law 7/2023 - which prohibits the keeping, breeding and trade of wild fauna in captivity - was NOT enacted under that Article 149.1.10 (the law reserved it solely to its Article 61). That is why Article 32 cannot prevent the breeding, sale or keeping of captive-bred animals that the European Regulation permits, and that is why the primacy of Union law is triggered: where a national rule conflicts with a directly applicable European regulation, the national rule must be disapplied (Costa v ENEL and Simmenthal judgments).

The Draft Royal Decree tries to fix this through the back door, by invoking Article 149.1.10 in its first final provision. But a regulation cannot claim a competence that its enabling law did not exercise (Article 9(3) of the Constitution; Article 128 of Law 39/2015). The result is that no one - neither the breeder, nor the buyer, nor the administration - can know with certainty what is permitted. Added to this is the internal incoherence of the text, which calls the same animal "domestic", "wild" or "wild in captivity" depending on which article is applied. For an operator in another Member State it is impossible to know whether an animal that is legal in the Union may be sold in Spain. That legal uncertainty is, in itself, a barrier to the internal market contrary to Article 26 TFEU.

7. FURTHERMORE, THE TEXT WAS NOTIFIED WITHOUT THE MANDATORY REPORTS

The notified text has not even completed its internal procedure: there is no record of the reports of the Autonomous Communities, of the ministries with economic and trade competence, of the Office for Regulatory Coordination and Quality, of the State Council for Animal Protection, or of the opinion of the Council of State that the Draft itself presupposes. The text is not final and may change substantially, and it is precisely the bodies that would have identified its impact on trade that have not reported.

8. I REQUEST

That this contribution be communicated to the Spanish authorities so that:
a) It be recognised that Article 32 of Law 7/2023 and its Royal Decree cannot restrict the keeping, breeding or trade of animals covered by Article 8(3) of Regulation (EC) No 338/97, for lack of competence over foreign trade and by reason of the primacy of Union law.
b) The distinction between the wild-caught animal and the captive-bred one be recognised, in accordance with Article 12(2) of Directive 92/43/EEC, the Didier Vergy judgment, Article 8(3) of Regulation (EC) No 338/97 and the EU Action Plan against Wildlife Trafficking (COM(2022) 581 final).
c) Criterion (k) of Annex I be deleted or reformulated, as it turns an import-control list (RD 570/2020) into an internal-market veto without weighing or risk assessment.
d) The State be required to provide the risk assessment it asserts but does not supply, bearing in mind that those risks are already managed by Regulation (EU) 1143/2014, Regulation (EU) 2016/429 and the welfare obligations of Article 13 TFEU and CETS 125.
e) The incoherence with the definition of wild fauna in Article 3.5 of Law 8/2003 and with Article 465 of the Civil Code be corrected, so that the scope and the prohibitions are clear.
f) It be evidenced that the outstanding mandatory reports - in particular the opinion of the Council of State - have been issued, and the standstill period under Directive (EU) 2015/1535 be suspended until the unjustified restriction, the legal uncertainty and the procedural defect identified above have been remedied.