AMSTERDAM COURT Administrative Sector

ruling of the court

In cases References: BESLU AWB 11/5033 (provisional) BESLU AWB 11/5035 (provisional) between:

The Black Fish Foundation, established in Amsterdam, Dolphin Motion Foundation, located in Nijmegen, First Sea Foundation, located in Breda, An Animal Foundation A Friend, established in The Hague, applicants, authorized Mr. M.F. Vineyards,

and

The Minister of Economic Affairs, Agriculture and Innovation, defendant, authorized Mr. J.E.W. Tieleman.

Also has participated as a party to the dispute: The private company the Dolphinarium Harderwijk BV located in Harderwijk, authorized Mr. D. Nas.

In the case of procedure number: 11/4982 BESLU AWB (request to lift the interim injunction) between:

The private company the Dolphinarium Harderwijk BV located in Harderwijk, applicant authorized Mr. D. Nas.

and

The Minister of Economic Affairs, Agriculture and Innovation, defendant, authorized Mr. J.E.W. Tieleman.

Also has participated as a party to the dispute: The Black Fish Foundation, established in Amsterdam, Dolphin Motion Foundation, located in Nijmegen, First Sea Foundation, located in Breda, An Animal Foundation A Friend, established in The Hague, authorized Mr. M.F. Vineyards,

Proceedings

The Black Fish Others (hereinafter: the Orca Coalition) have two separate requests to take a provisional. These requests are related to the individual applicants submitted appeals against the decisions of OHIM of 12 October 2011 (the contested decision).

Dolphinarium Harderwijk BV (Hereinafter: the Dolphinarium) also requested the removal of the temporary provision that the court, by order of August 3, 2011, with registered BESLU AWB 11/3640, are made.

The judge hearing the application is treated on November 7, 2011.

Appeared: - The agent of the Dolphinarium; - On behalf of the Dolphinarium Mr. [Director Dolphinarium] (director of the Dolphinarium), Mr [vet Dolphinarium] (veterinarian at the Dolphinarium), Mr. E. Philippi, and Gho [expert Loro Parque] (expert from the Loro Parque). - The agent for the applicants, - On behalf of the applicants Ms [chairman Orca Coalition] (President of the Orca Coalition), Mrs. [orca expert] (orca expert) and Ms [Chair Free Morgan Foundation] (President of the Free Morgan Foundation), the last two people assisted by Mrs. PJ Miller, English interpreter; - The agent of the defendant; - On behalf of defendant Ms. J.H. Verheul, Verkaik, Mr. [A person] and Mr. [person 2].

Considerations

1. Pursuant to Article 8:81 of the General Administrative Law Act (AWB), the judge whether urgency, given the interests involved, the taking of interim relief pending the outcome required by the standard procedure. With the requisite interests involves a balancing of one hand the interest of the petitioner that an immediate, and secondly it is affected by the immediate implementation of the decision to be important.

2. facts and circumstances

2.1. Morgan, a young orca, on June 23, 2010 severely weakened found in the Wadden Sea. The Dolphinarium, Morgan caught and they still reside there.

2.2. The Orca Coalition on December 17, 2010 with the defendant a maintenance request because it considered and that the Dolphinarium in breach of any of its exemption granted under the Flora and Fauna and international commitments, as the Dolphinarium has decided for Morgan to return to the wild, but to transfer to Tenerife Loro Parquo. This decision of the Dolphinarium is based on the report expert advice on the releasability of the rescued killer whale (Orcinus orca) Morgan of November 14, 2010. Orca Coalition was and is with this decision and the underlying report disagree, because it believes that there are still good opportunities for Morgan to return to its natural surroundings and is therefore referred to the advice of The Free Morgan Expert Panel on November 3, 2010.

2.3. Respondent has refused to request enforcement of the primary decision

April 15, 2011. Subsequently, the defendant in primary decision of 27 July 2011 an EC certificate issued to the Dolphinarium to transfer to Morgan Loro Parque to Tenerife.

2.4. The Orca Coalition against both primary decisions separately objections and requests for interim measures submitted. By decision of 3 August 2011 (References AWB and AWB 11/3640 11/3441 BESLU BESLU), the judge of this court that the provision granting the EC certificate is suspended, so Morgan (yet) to Tenerife was transported be. In addition, the judge ruled that the decisions of 15 April 2011 and July 27, 2011 have been arrived at carelessly and inadequately reasoned.

2.5. During the objection phase has been a hearing, the parties exchanged documents, the defendant has a separate agreement with the Killer Whale Coalition and the Dolphinarium has conducted and defendant parties visited the Dolphinarium. This has not led to agreement. The defendant then has to decide contested primary objections to the decision and dismissed the primary decisions enforced. Respondent has therefore considered the Dolphinarium an exemption under the Flora and Fauna, and that condition 8 of this exemption states that the Dolphinarium of captured whales temporarily be allowed to hold in rehabilitation with the aim of later released again to. If leave is released is not possible, any such animal to be kept permanently for doing scientific research. More specifically, whether the defendant releasing Morgan is possible or not. For the assessment of interest or eight defendant Morgan should have a good chance to survive in nature. Restoring from an animal in the knowledge that a decent chance that it failed because the animal can not survive independently, eight defendant was not justified. The principle that the defendant would have an obligation to do everything possible for Morgan to return to nature, regardless of its survival, according to defendant finds no support in law. Respondent believes that based on the submitted reports can not be determined that the conclusion of the Dolphinarium, that Morgan is not fit to be released is incorrect. Respondent is therefore considered that the Dolphinarium has acted in accordance with the exemption so that no enforcement action can be taken. 2.6. Regarding the EC certificate issued, the respondent considered that Morgan intended for research that protection or conservation of the species has in mind. The Spanish CITES Authority has indicated that it has no objection to transferring and Morgan also confirmed that Loro Parque participate in research that contributes to the preservation of this species. Loro Parque is a zoo in accordance with European regulations. The Authority has reported that Loro Parque for keeping orcas has developed three programs: a scientific, educational, and a breeding program. Respondent further considers that Loro Parque a suitable location to move go to Morgan. Respondent has therefore concluded that the EC certificate of conformity with the law and regulations is provided to the Dolphinarium.

2.7. The Orca Coalition against the contested decisions separate action. Furthermore, the Killer Whale Coalition two requests for interim measures submitted. A request is that, by way of interim provision is determined that the effects of the EC certificate be suspended until the appeal is decided. Regarding the decision rejecting the enforcement request asks the Orca Coalition that the defendant is dedicated to the Dolphinarium preventive cease and desist order to impose the effect that the Dolphinarium cooperation to the implementation of the Free Morgan Group prepared plan. It should return all the Dolphinarium in nature to submit relevant information. It also requests that the defendant Orca Coalition is dedicated to the Dolphinarium a cease and desist order to impose the effect that Morgan is transferred to Delta Park Neeltje Jans in preparation for its release.

2.8. The Dolphinarium is a request for the removal of the already made a provisional ruling in August 3, 2011. This feature is On November 23, 2011. The Dolphinarium is too long this time because the housing of the Dolphinarium Morgan and Morgan is no longer adequate in need of contact with peers so that Morgan as soon as possible to Loro Parque in Tenerife can bring about.

3. assessment of a general nature

3.1. The judge will consider whether the contested decision is expected in position will remain. Will also be competing interests between the interests of the Orca Coalition as soon as possible to begin the road to the orca to place into the sea and the importance of the defendant and the Dolphinarium killer goes immediately to Loro Parque.

3.2. Now the Foundation Blackfish view of its objectives can be considered an interested party, the court of the other applicants have an interest in the context of this interim leave in the middle. This issue will be held in the main proceedings.

3.3. The Orca Coalition has complained about the making of decisions because defendant not all documents exchanged in the appeal procedure in the decision would have involved. Respondent has indicated in court all documents in the file have weighed in his opinion, that this complaint in the main proceedings are not likely to succeed. This is the procedure under the provisions thus excluded.

4. evaluation of the request for enforcement

4.1. The question in this proceeding should be answered is whether the Dolphinarium violates the provisions of the Flora and Fauna and the exemption granted to her and whether the defendant is obliged to take enforcement action against it.

4.2. At the Dolphinarium by defendant on February 3, 2009 pursuant to Article 75 Flora and Fauna Act exemption granted conditionally for the kill, injure, catch, capture or identify the purpose, intentionally disturb, transport, inside or outside the territory of Netherlands market and are storing copies of whales (Cetacea). Such an exemption is granted only for those species like no other satisfactory solution and to the Dolphinarium provided for research and protection of flora and fauna, namely relief, rehabilitation and research and restore the wild. The exemption is established in law and has been granted for the period February 3, 2009 to February 2, 2012.

4.3. The following relevant conditions attached to this exemption: 8. Of captured cetaceans (Cetaceae) may temporarily be kept in rehabilitation, with the aim of later release. If weather release is not possible, any such animals are kept permanently for doing research that is relevant in the context of the EU Habitats Directive, the Bern Convention and ASCOBANS obligations. Scientific research must be carried out by a research plan for the National Service should be sent. 9. Washed ashore and trapped animals should as soon as possible after rehabilitation (and research) to be plotted in a suitable habitat as close to the site. 11. It is not allowed the species listed in Appendix A of Regulation (EC) 338/97 for primarily commercial purposes, as provided in Article 8 first paragraph of the Regulation (EC) 338/97 to use. 13. The exemption for inside or outside the territory of the Netherlands of the animals only if there are prior authorized by the competent authorities of the countries concerned and the required CITES documents were issued.

4.4. The exemption is stated that it was intended to rehabilitate stranded cetaceans such as Morgan and then they have to be reinserted into the sea. Defendant is also thereof. In decision making and whether the Dolphinarium in accordance with the exemption has acted to determine whether Morgan may be freely allowed. Defendant set itself the view that in determining a satisfactory solution must be determined whether this replacement in terms of being Morgan a reasonable chance of success.

4.5. When assessing the defendant to 10.7 Resolution CITES involved. CITES aims, through regulation of international trade a number of endangered species of wild fauna and flora protection. It provides protection schemes that vary with the species, which species corresponding to the three annexes to this Agreement are classified into three classes, depending on the risk of extinction with which they are threatened. Appendix II of CITES lists animals and plants potentially endangered, but not yet. The Cetecea is listed in Annex II.

4.6. The judge considers the Resolution 10.7 in the interpretation of these permit conditions is important. Resolution 10.7 assumes that expansion of a specimen in the wild is not always possible and describes that imprisonment is an option in cases where the animal can not be put back or that it is not in the interest of preserving the species. The resolution clarifies that the provisions of CITES should not be interpreted as an expansion in nature to follow, but this is only necessary under very specific circumstances. The welfare of the animal is therefore an important aspect. 10.7 The resolution says about including "While return to the wild May Appear to be human, it May Be Nothing More Than a sentence to a slow death".

4.7. The Court of Justice of the European Communities, now the Court of Justice of the European Union (hereinafter the Court), has in the interpretation of Regulation (EC) No 338/97 in its ruling of 19 June 2008 in Case No C-219/07, National Council of Animal Breeders and Lovers, point 27 (www.curia.europa.eu) considered that the protection of animal welfare is a legitimate objective of general interest and the interest adopted by the Community include the health and protection of animals. Unlike the Orca Coalition states the respondent's opinion of the judge was right the welfare of Morgan and its survival as a criterion for the answer to the question whether the release of Morgan's rehabilitation after a satisfactory solution. The judge follows the Orca Coalition nor the statement that the Habitats Directive would force defendant to another criterion. With completion of the Flora and Fauna Act implements the European and international obligations and which the Habitats Directive prescribes been implemented in Article 75 of Flora and Fauna Act, under which this exemption was granted, and evaluating the implementation of the permit is done.

4.8. Defendant on the basis of the report of November 14, 2010, the object exchanged opinions, expert reports and documents that there was no reasonable chance of survival if Morgan is released back into the sea. The Orca Coalition on this issue argued that the contested decision came about carelessly and insufficiently motivated, because the defendant's decision was wrong based on the report of the Dolphinarium and lack the relevant expertise is sought. In addition, the Killer Whale Coalition that the position of defendant on the survival of Morgan is reduced to a snapshot. Now there are new facts and circumstances, namely an acoustic report of September 23, 2011, and sightings of killer whales off the Norwegian coast. In response, three experts who report on November 14, 2010 have contributed their original position on the likelihood of success of a roadmap to lead Morgan to return to sea nuanced.

4.9. The contested decision shows that the defendant not only the report of November 14, 2010, but also those of the experts on the part of the Killer Whale Coalition and the Dolphinarium in deciding on objects involved. Also include detailed information about the underlying report DNAonderzoek, and jointly by the experts H. Vester and F. Samarra conducted acoustic research has not been involved in the investigation of sound recordings, September 23, 2011, are included in decision making. The judge therefore not share the views of the Killer Whale Coalition is that the defendant should have carried out their own research, leaving aside the question whether this additional information could have produced, given the many experts that the survival of Morgan have bent.

4.10. The report of 14 November 2010 that Morgan was a young orca who, given the state they were found in the Wadden Sea, is considered unable to care for themselves. She is in the wild it depends on the family group. It probably belongs to the P pod (family), but after comparing the new sound recordings can not be established that this is actually the family group in which it arises. Effective identification of her family group through DNAonderzoek and acoustic research is very complicated and would take years. The defendants claim that the report of 23 September 2011 no further sheds light on the report of November 14, 2010 because of uncertainty about her family group remained, does the judge understood. Moreover, the pod P since 2005 and has not identified a very large habitat. Defendant at the hearing also indicated that this uncertainty is not a replacement would prevent the return of previous placements as might be expected that an orca easily in any family group would be included. But this is not the case according to the experts. Defendant claims based on the reports that, when looking at previous postings back, it must be concluded that

they are not successful. In the view of the defendant to replace Morgan in the sea are seen as a scientific experiment with a very uncertain period of time and outcome. Defendant the benefit of eight Morgan thereby not benefit. Moreover, the experts pointed out that Morgan has become accustomed to human contact, making it back into the sea too difficult. In the opinion of the court the defendant based on the reports of the above and conclude that Morgan has no reasonable chance of survival at sea. The justification for that purpose in the contested decision was given, does the right to provisional opinion and understandable enough.

4.11. Finally, the court did not follow the argument of the Killer Whale Coalition, the conclusions from the report of November 14, 2010 can not be followed because three experts their opinion would have changed. First, both defendant and the Dolphinarium argued that these experts have been approached by Orca Coalition and responded without the other parties in question are known. The detailed conclusions of the experts that the return of Morgan be feasible if the roadmap met with a number of conditions, does the opinion of the court does not alter the conclusion of the Dolphinarium and opposition that is too uncertain or Morgan a good survival in nature. Respondent has thereby justified by the presumption that the suitability of Morgan to be back in nature must be clear enough and that only then the enforceability of any steps can be addressed.

4.12. Given the conclusion that defendant was entitled to the able to conclude that Morgan has no reasonable chance of survival at sea, following the judge defendant's view that the Dolphinarium is not in breach of the conditions stated in the waiver by failing to nature back into place. There is therefore no grounds for considering that the rejection of the enforcement proceedings on the application status will not continue.

4.13. The statement of the Orca Coalition that the conditions of the exemption, the Habitats Directive, the ASCOBANS Convention and the Berne Convention would also result there exists an obligation for the defendant to do everything possible to ensure that Morgan in its natural habitat returns, follow the court in view of the above does not. Well did the defendant in the contested decision held that no basis in law is found for the proposition that the defendant so regardless of the survival of Morgan, would be held.

4.14. Nor follow the judge's statement that defendant Dolphinarium applicants with a cease and desist order would require a road through Morgan to return to the sea. Rightly the Dolphinarium and the defendant argued that for such a violation cease and desist order is required. Furthermore, the burden is aimed at termination of the violation. As considered above, the exemption or waiver conditions by not violating the Dolphinarium. Insofar as the applicants have invoked ASCOBANS Convention, the Dolphinarium was right out of the view that the Convention does not directly working for the obligations arising Dolphinarium. There is, therefore, defendant has no power to impose a cease and desist order, so that the subsequent production should not be allocated.

5. assessment provision of the EC certificate

5.1. The decision to grant the EC Certificate of July 17, 2011 was taken under Article 8 g of Regulation (EC) No 338/97, a regulation which aims to protect wild fauna and flora by regulating trade therein (the Basic Regulation).

5.2. Article 8 first paragraph of the Basic Regulation provides that the purchase, sale, acquisition for commercial purposes, display to the public for commercial purposes, use for profit and selling, possessing for the purpose of sale, for sale or transporting for sale of specimens of species listed in Annex A, is prohibited. Under the third paragraph, g, section 8, in accordance with the requirements of other Community legislation concerning the conservation of wild flora and fauna by-case basis of the first paragraph above prohibitions granted by issuing an appropriate certificate by an administrative authority of the Member State in which the specimens are located, if the specimens are intended for research or teaching that protection of the species has in mind. It follows from Article 1 of the Basic Regulation that it is applicable taking into account the objectives, principles and provisions of CITES.

5.3. Under Article 2, first paragraph, under p, of the Basic Regulation, the term "sale" means any form of sale. Rent, barter or exchange are treated as sales. Expressions of the same nature are interpreted in the same sentence.

5.4. Under Article 9, first paragraph, of the Basic Regulation for each transport within the Community of a live specimen of a species included in Appendix A prior permission is required from a management authority of the Member State in which the specimen is located. Following the second paragraph of Article 9 is authorized only when the competent scientific authority of the host Member State is satisfied that the intended accommodation at the destination of a live specimen is adequately equipped to maintain and properly to care.

5.5. The Orca Coalition - in short - argued that the EC certificate by the defendant should have been granted. When applying the Dolphinarium the EC certificate is as important scientific research mentioned. The other article 8, third paragraph, and g, of the Basic Regulation mentioned interest, namely education, falls under the Orca Coalition is beyond the scope of the dispute. The Orca Coalition adds that according to the documents can not be seen or Loro Parque scientific research into the preservation of the species. The three-day performances of the killer whales compared to the scientific studies made by the Coalition Orca so dominant that of a commercial and commercial use must be said of Morgan. The Orca Coalition argues then that does not meet the requirement to consult with the Spanish CITES authority is satisfied and the defendant submitted emails so inadequate. The Orca Coalition denies that Morgan Loro Parque could offer good housing because of a shortage of skilled personnel, major problems and tensions within the group of killer whales into existence and orcas attacking each other and even people. Finally, the Orca Coalition states that the EC certificate issued in violation of Article 48 of the Implementing Regulation as Morgan in violation of international law and Dutch prisoners.

5.6. The court considers that the facts show that Loro Parque is a zoo in accordance with Directive 1999/22/EC relating to the keeping of wild animals in zoos, in Spain became Law 31/2003 (Ley de Zoos'), the Spanish equivalent of the Dutch Decree Zoo. Zoos, although generally commercially exploited as such are not considered to be primarily commercial institutions, but mainly an educational role. The statement of the Orca Coalition that the importance of education is not mentioned in the application and thus outside the scope of the dispute is, the court does not follow. The importance of education, where Article 8, paragraph g, of the Basic Regulation to see, in the course of the proceedings proved in the context of the overall review included in the appeal proceedings. Because public education plays an important role in conservation of protected species, the defendant also include this in its decision making process.

5.7. It is also abundantly clear that Loro Parque perform scientific studies to cetaceans. This is in accordance with the application data submitted and in the appeal stage by the defendant subsequently obtained information, including comprising a further explanation of the Loro Parque in respect of the investigations it carries: the Marine Mammal Research & Conservation Plan 2010 - 2015 is presented, the statements on scientific cooperation between various scientific institutes and Loro Parque, the examples of scientific reports issued by Loro Parque and examples of project proposals for scientific studies to be performed.

5.8. In the opinion of the judge, the defendant is thus sufficiently satisfied that adequate education and Loro Parque studies. Nor have the applicants made plausible that the transfer of Morgan Loro Parque primarily commercial interests are based. There is no evidence that this is not a customary exchange in zoos. The importance of avoiding trade balance, contrary to the interest for Morgan to transfer research and education is the judge considers that the defendant reasonably to the conclusion could be that Morgan is transferred to Loro Parque for research and education for the protection or conservation of the species. The information that the Spanish CITES autoritieit about the e-mails from July 15 and July 29, 2011 has submitted indicate that Loro Parque zoo is that the rules and regulations by the Spanish legislation and enable them scientific and educational research be performed as prescribed by Spanish law. They also state that year by the regional authorities, checks, whereby no irregularities were found.

5.9. The judge agrees with the view of defendant that the relevant legislation did not allow an independent investigation into the circumstances in Loro Parque, but that he should go down in the relevant communications from the Spanish authorities. Like the defendant considers the right of the Spanish authorities received sufficient information. The court sees no grounds for considering that the defendant received information from the Spanish CITES authorities should have doubts. That considers important that the Orca Coalition has failed to Loro Parque that good housing can not offer.

The photos that Orca Coalition hearing showed, and the statement of a former employee of the Loro Parque, does the judge enough to the declaration of the Spanish CITES authority that housing in accordance with the regulations in question.

5.10. The statement of the Killer Whale Coalition, which issued the EC certificate in violation of Article 48 of Regulation (EC). 865/2006 (hereinafter: Implementing Regulation) would be provided, fails because it is based on the mistaken view that Morgan is not under the current rules in the Netherlands would be introduced. As already explained, the inclusion of Morgan put in the Dolphinarium made under the exemption, the exemption is granted in accordance with applicable regulations.

5.11. Given the above, the court considered that defendant reasonably could have come to the conclusion that the EC certificate of conformity with the law and regulations is provided to the Dolphinarium. The contested decision will therefore appeal sustaining.

6.1. In the preliminary assessment of the lawfulness of the contested decisions, the court no basis for adopting an interim injunction. Interests between the parties leads to the conclusion that the facility should be dismissed. Enough is common ground that the interests of Morgan is that they leave as soon as possible at the Dolphinarium, given that its basin is too small for her and that she can not socialize with the dolphins in the Dolphinarium, because they are infected with the herpesvirus. The Court is satisfied that socialization with peers is vital to her and that she, given her age, a significant period of its development. The importance of the Dolphinarium in immediate implementation of the decision, does the judge therefore greater than that of the applicants in achieving their goals. The judge also takes into consideration the fact that Morgan is moved to a zoo in an EU Member State, where CITES and the European legislation to protect cetaceans continue to apply. The objective of the Orca Coalition to bring the nature of Morgan is therefore by moving to a Spanish zoo Morgan perhaps difficult, but not illusory.

6.2. Requests to take an interim Coalition of the Orca be rejected. For a conviction in the compensation of the costs or court fees the judge sees no reason.

7. assessment of the request for waiver of the provisional measures

7.1. Pursuant to Article 8:87 paragraph GALA, the judge of its own motion, cancel or modify a provisional remedy. Given by these decisions is the reason given by order of August 3, 2011 (References AWB and AWB 11/3640 11/3441 BESLU BESLU) made provision that the grant of the EC certificate has been suspended with immediate effect to remove. Given the ex-officio to the court given jurisdiction and given the fact that the provision made only a few days would last, no reason given for the defendant to pay the costs of the Dolphinarium or for compensation of the Dolphinarium pay court fees.

Decision

The judge:

References in the business of AWB and AWB 11/5035 11/5033 BESLU BESLU

- Rejects the request to take a provisional off.

In the case of proceedings No 11/4982 AWB BESLU

- To cancel the verdict of 3 August 2011 (References AWB and AWB 11/3640 11/3441 BESLU BESLU) provision made for the provision of the EC certificate has been suspended with immediate effect.

This statement was made by M. de Rooij, judge, in the presence of Mr. MCW van der Voort, Registrar. The decision is in the public on November 21, 2011.

Bio : Hon. Marianne de Rooij Court of First Instance Amsterdam Amsterdam, Netherlands Judge Marianne de Rooij is the vice-president of...Visualizza altro