Legal provisions of COM(2012)403 - Protection of species of wild fauna and flora by regulating trade therein (Recast)

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dossier COM(2012)403 - Protection of species of wild fauna and flora by regulating trade therein (Recast).
document COM(2012)403 EN
date July 19, 2012

Contents

Article 1 - Object ê 338/97 (adapted) ð new

The object of this Regulation is to protect species of wild fauna and flora and to guarantee their conservation by regulating trade therein in accordance with Articles Ö 2 to 22 and Annexes A to D as set out in Annex I, hereinafter referred to as 'Annex A', 'Annex B', 'Annex C' and 'Annex D' Õ.

This Regulation shall apply in compliance with the objectives, principles and provisions of the Convention defined in Article 2(b).

Article 2 - Definitions

For the purposes of this Regulation, the following definitions shall apply:

(a)          ‘Committee’ means the Committee Ö referred to in Õ Article 21(1);

(b)          ‘Convention’ means the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES);

(c)          ‘country of origin’ means the country in which a specimen was taken from the wild, captive-bred or artificially propagated;

(d)          ‘import notification’ means the notification given by the importer or his agent or representative, at the time of the introduction into the Ö Union Õ of a specimen of a species included in Annexes C or D, on ð the ï a form ð provided for in Article 19(2) ï . prescribed by the Commission in accordance with the procedure referred to in Article 18(2);

(e)          ‘introduction from the sea’ means the introduction into the Ö Union Õ of any specimen which was taken in, and is being introduced directly from, the marine environment not under the jurisdiction of any State, including the air-space above the sea and the sea-bed and subsoil beneath the sea;

(f)           ‘issuance’ means the completion of all procedures involved in preparing and validating a permit or certificate and its delivery to the applicant;

(g)          ‘management authority’ means a national administrative authority designated, in the case of a Member State, in accordance with Article 13(1) or, in the case of a third country party to the Convention, in accordance with Article IX of the Convention;

(h)          ‘Member State of destination’ means the Member State of destination mentioned in the document used to export or re-export a specimen; in the event of introduction from the sea, it shall mean the Member State within whose jurisdiction the place of destination of a specimen lies;

(i)           ‘offering for sale’ means offering for sale and any action that may reasonably be construed as such, including advertising or causing to be advertised for sale and invitation to treat;

(j)           ‘personal or household effects’ means dead specimens, parts and derivatives thereof, that are the belongings of a private individual and that form, or are intended to form, part of his normal goods and chattels;

(k)          ‘place of destination’ means the place at which at the time of introduction into the Ö Union Õ, it is intended that specimens will normally be kept; in the case of live specimens, this shall be the first place where specimens are intended to be kept following any period of quarantine or other confinement for the purposes of sanitary checks and controls;

(l)           ‘population’ means a biologically or geographically distinct total number of individuals;

(m)         ‘primarily commercial purposes’ means all purposes the non-commercial aspects of which do not clearly predominate;

(n)          ‘re-export from the Ö Union Õ’ means export from the Ö Union Õ of any specimen that has previously been introduced;

(o)          ‘re-introduction into the Ö Union Õ’ means introduction into the Ö Union Õ of any specimen that has previously been exported or re-exported;

(p)          ‘sale’ means any form of sale. For the purposes of this Regulation, hire, barter or exchange shall be regarded as sale; cognate expressions shall be similarly construed;

(q)          ‘scientific authority’ means a scientific authority designated, in the case of a Member State, in accordance with Article 13(2) or, in the case of a third country party to the Convention, in accordance with Article IX of the Convention;

(r)           ‘Scientific Review Group’ means the consultative body established under Article 17;

(s)          ‘species’ means a species, subspecies or population thereof;

(t)           ‘specimen’ means any animal or plant, whether alive or dead, of the species listed in Annexes A to D, any part or derivative thereof, whether or not contained in other goods, as well as any other goods which appear from an accompanying document, the packaging or a mark or label, or from any other circumstances, to be or to contain parts or derivatives of animals or plants of those species, unless such parts or derivatives are specifically exempted from the provisions of this Regulation or from the provisions relating to the Annex in which the species concerned is listed by means of an indication to that effect in the Annexes concerned.

A specimen shall be considered to be a specimen of a species listed in Annexes A to D if it is, or is part of or derived from, an animal or plant at least one of whose ‘parents’ is of a species so listed. In cases where the ‘parents’ of such an animal or plant are of species listed in different Annexes, or of species only one of which is listed, the provisions of the more restrictive Annex shall apply. However, in the case of specimens of hybrid plants, if one of the ‘parents’ is of a species listed in Annex A, the provisions of the more restrictive Annex shall apply only if that species is annotated to that effect in the Annex;

(u)          ‘trade’ means the introduction into the Ö Union Õ, including introduction from the sea, and the export and re-export from the Union, as well as the use, movement and transfer of possession within the Ö Union Õ, including within a Member State, of specimens subject to the provisions of this Regulation;

(v)          ‘transit’ means the transport of specimens between two points outside the Ö Union Õ through the territory of the Ö Union Õ which are shipped to a named consignee and during which any interruption in the movement arises only from the arrangements necessitated by this form of traffic;

(w)         ‘worked specimens that were acquired more than 50 years previously’ means specimens that were significantly altered from their natural raw state for jewellery, adornment, art, utility, or musical instruments, before 3 March 1947 and that have been, to the satisfaction of the management authority of the Member State concerned, acquired in such conditions. Such specimens shall be considered as worked only if they are clearly in one of the aforementioned categories and require no further carving, crafting or manufacture to effect their purpose;

(x)          ‘checks at the time of introduction, export, re-export and transit’ means documentary checks on the certificates, permits and notifications provided for in this Regulation and, in cases where Ö Union Õ provisions so provide or in other cases by representative sampling of the consignments, examination of the specimens, where appropriate accompanied by the taking of samples with a view to analysis or more detailed checks.

Article 3 - Scope

1. Annex A shall contain:

(a)          the species listed in Appendix I to the Convention for which the Member States have not entered a reservation;

(b)          any species:

(i)      which is, or may be, in demand for utilisation in the Ö Union Õ or for international trade and which is either threatened with extinction or so rare that any level of trade would imperil the survival of the species,

or

(ii)     which is in a genus of which most of the species or which is a species of which most of the subspecies are listed in Annex A in accordance with the criteria in point (a) or (b)(i) and whose listing in that Annex is essential for the effective protection of those taxa.

2. Annex B shall contain:

(a)          the species listed in Appendix II to the Convention, other than those listed in Annex A, for which the Member States have not entered a reservation;

(b)          the species listed in Appendix I to the Convention for which a reservation has been entered;

(c)          any other species not listed in Appendices I or II to the Convention:

(i)      which is subject to levels of international trade that might not be compatible:

– with its survival or with the survival of populations in certain countries, or

– with the maintenance of the total population at a level consistent with the role of the species in the ecosystems in which it occurs;

or

(ii)     whose listing in the Annex for reasons of similarity in appearance to other species listed in Annex A or B, is essential in order to ensure the effectiveness of controls on trade in specimens of such species;

(d)          species in relation to which it has been established that the introduction of live specimens into the natural habitat of the Ö Union Õ would constitute an ecological threat to wild species of fauna and flora indigenous to the Ö Union Õ.

3. Annex C shall contain:

(a)          the species listed in Appendix III to the Convention, other than those listed in Annex A or B, for which the Member States have not entered a reservation;

(b)          the species listed in Appendix II to the Convention for which a reservation has been entered.

4. Annex D shall contain:

(a)          species not listed in Annexes A, B and C which are imported into the Ö Union Õ in such numbers as to warrant monitoring;

(b)          the species listed in Appendix III to the Convention for which a reservation has been entered.

5. Where the conservation status of species covered by this Regulation warrants their inclusion in one of the Appendices to the Convention, the Member States shall contribute to the necessary amendments.

Article 4 - Introduction into the Ö Union Õ

1. The introduction into the Ö Union Õ of specimens of the species listed in Annex A shall be subject to completion of the necessary checks and the prior presentation, at the border customs office at the point of introduction, of an import permit issued by a management authority of the Member State of destination.

The import permit may be issued only in accordance with the restrictions established pursuant to paragraph 6 and when the following conditions have been met:

(a)          the competent scientific authority, after considering any opinion of the Scientific Review Group, has advised that the introduction into the Ö Union Õ:

(i)      would not have a harmful effect on the conservation status of the species or on the extent of the territory occupied by the relevant population of the species,

(ii)      is taking place:

– for one of the purposes referred to in Article 8(3)(e), (f) and (g), or

– for other purposes which are not detrimental to the survival of the species concerned;

(b)          (i)      the applicant provides documentary evidence that the specimens have been obtained in accordance with the legislation on the protection of the species concerned which, in the case of import from a third country of specimens of a species listed in the Appendices to the Convention, shall be an export permit or re-export certificate, or copy thereof, issued in accordance with the Convention by a competent authority of the country of export or re-export,

(ii)     however, the issuance of import permits for species listed in Annex A in accordance with Article 3(1)(a) shall not require such documentary evidence, but the original of any such import permit shall be withheld from the applicant pending presentation of the export permit or re-export certificate;

(c)          the competent scientific authority is satisfied that the intended accommodation for a live specimen at the place of destination is adequately equipped to conserve and care for it properly;

(d)          the management authority is satisfied that the specimen is not to be used for primarily commercial purposes;

(e)          the management authority is satisfied, following consultation with the competent scientific authority, that there are no other factors relating to the conservation of the species which militate against issuance of the import permit; and

(f)           in the case of introduction from the sea, the management authority is satisfied that any live specimen will be so prepared and shipped as to minimise the risk of injury, damage to health or cruel treatment.

2. The introduction into the Ö Union Õ of specimens of the species listed in Annex B shall be subject to completion of the necessary checks and the prior presentation, at the border customs office at the point of introduction, of an import permit issued by a management authority of the Member State of destination.

The import permit may be issued only in accordance with the restrictions established pursuant to paragraph 6 and when:

(a)          the competent scientific authority, after examining available data and considering any opinion of the Scientific Review Group, is of the opinion that the introduction into the Ö Union Õ would not have a harmful effect on the conservation status of the species or on the extent of the territory occupied by the relevant population of the species, taking account of the current or anticipated level of trade. This opinion shall be valid for subsequent imports as long as the abovementioned aspects have not changed significantly;

(b)          the applicant provides documentary evidence that the intended accommodation for a live specimen at the place of destination is adequately equipped to conserve and care for it properly;

(c)          the conditions referred to in paragraph 1(b)(i), (e) and (f) have been met.

3. The introduction into the Ö Union Õ of specimens of the species listed in Annex C shall be subject to completion of the necessary checks and the prior presentation, at the border customs office at the point of introduction, of an import notification and:

(a)          in the case of export from a country mentioned in relation to the species concerned in Annex C, the applicant shall provide documentary evidence, by means of an export permit issued in accordance with the Convention by an authority of that country competent for the purpose, that the specimens have been obtained in accordance with the national legislation on the conservation of the species concerned; or

(b)          in the case of export from a country not mentioned in relation to the species concerned in Annex C or re-export from any country, the applicant shall present an export permit, a re-export certificate or a certificate of origin issued in accordance with the Convention by an authority of the exporting or re-exporting country competent for the purpose.

4. The introduction into the Ö Union Õ of specimens of the species listed in Annex D shall be subject to completion of the necessary checks and the prior presentation of an import notification at the border customs office at the point of introduction.

5. The conditions for the issuance of an import permit as referred to in paragraph 1(a) and (d) and in paragraph 2(a), (b) and (c) shall not apply to specimens for which the applicant provides documentary evidence:

(a)          that they had previously been legally introduced into or acquired in the Ö Union Õ and that they are, modified or not, being reintroduced into the Ö Union Õ; or

(b)          that they are worked specimens that were acquired more than 50 years previously.

ê 398/2009 Art. 1 pt. 1(a) (adapted)

ð new

6. In consultation with the countries of origin concerned, in accordance with the regulatory procedure referred to in Article 18(2) and taking account of any opinion of the Scientific Review Group, the Commission may ð , by means of implementing acts, ï establish general restrictions, or restrictions relating to certain countries of origin, on the introduction into the Ö Union Õ:

ê 338/97 (adapted)

(a)          on the basis of the conditions referred to in paragraph 1(a)(i) or (e), of specimens of species listed in Annex A;

(b)          on the basis of the conditions referred to in paragraph 1(e) or paragraph 2(a), of specimens of species listed in Annex B; and

(c)          of live specimens of species listed in Annex B which have a high mortality rate during shipment or for which it has been established that they are unlikely to survive in captivity for a considerable proportion of their potential life span; or

(d)          of live specimens of species for which it has been established that their introduction into the natural environment of the Ö Union Õ presents an ecological threat to wild species of fauna and flora indigenous to the Ö Union Õ.

ò new

The implementing acts referred to in the first subparagraph shall be adopted in accordance with the examination procedure referred to in Article 21(2).

ê 338/97 (adapted)

The Commission shall on a quarterly basis publish a list of restrictions Ö established in accordance with the first subparagraph Õ, if any, in the Official Journal of the European Union.

ê 398/2009 Art. 1 pt. 1(b) (adapted)

ð new

7. Where special cases of transhipment, air transfer or rail transport occur following the introduction into the Ö Union Õ, ð the Commission shall be empowered to adopt delegated acts in accordance with Article 20 concerning the granting of ï derogations from the completion of the checks and the presentation of import documents at the border customs office at the point of introduction which are referred to in paragraphs 1 to 4 Ö of this Article, Õ shall be granted by the Commission in order to permit such checks and the presentation to be carried out at another customs office designated in accordance with Article 12(1).

Those measures, designed to amend non-essential elements of this Regulation, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(3).

ê 338/97 (adapted)

Article 5 - Export or re-export from the Ö Union Õ

1. The export or re-export from the Ö Union Õ of specimens of the species listed in Annex A shall be subject to completion of the necessary checks and the prior presentation, at the customs office at which the export formalities are completed, of an export permit or re-export certificate issued by a management authority of the Member State in which the specimens are located.

2. An export permit for specimens of the species listed in Annex A may be issued only when the following conditions have been met:

(a)          the competent scientific authority has advised in writing that the capture or collection of the specimens in the wild or their export will not have a harmful effect on the conservation status of the species or on the extent of the territory occupied by the relevant population of the species;

(b)          the applicant provides documentary evidence that the specimens have been obtained in accordance with the legislation in force on the protection of the species in question; where the application is made to a Member State other than the Member State of origin, such documentary evidence shall be furnished by means of a certificate stating that the specimen was taken from the wild in accordance with the legislation in force on its territory;

(c)          the management authority is satisfied that:

(i)      any live specimen will be so prepared and shipped as to minimise the risk of injury, damage to health or cruel treatment, and

(ii)     –        the specimens of species not listed in Appendix I to the Convention will not be used for primarily commercial purposes, or

– in the case of export to a State party to the Convention of specimens of the species referred to in Article 3(1)(a) of this Regulation, an import permit has been issued;

and

(d)          the management authority of the Member State is satisfied, following consultation with the competent scientific authority, that there are no other factors relating to the conservation of the species which militate against issuance of the export permit.

3. A re-export certificate may be issued only when the conditions referred to in paragraph 2(c) and (d) have been met and when the applicant provides documentary evidence that the specimens:

(a)          were introduced into the Ö Union Õ in accordance with the provisions of this Regulation;

(b)          if introduced into the Ö Union Õ before 3 March 1997, were introduced in accordance with the provisions of Council Regulation (EEC) No 3626/82; or Ö if Õ introduced into the Ö Union Õ before the entry into force of this Regulation but after 3 March 1997, were introduced into the Ö Union Õ in accordance with the provisions of Regulation (EC) No 338/97; Ö or Õ

(c)          if introduced into the Ö Union Õ before 1984, entered international trade in accordance with the provisions of the Convention; or

(d)          were legally introduced into the territory of a Member State before the provisions of the Regulations referred to in (a) and (b) or of the Convention became applicable to them, or became applicable in that Member State.

4. The export or re-export from the Ö Union Õ of specimens of the species listed in Annexes B and C shall be subject to completion of the necessary checks and the prior presentation, at the customs office at which the export formalities are completed, of an export permit or re-export certificate issued by a management authority of the Member State in whose territory the specimens are located.

An export permit may be issued only when the conditions referred to in paragraph 2(a), (b), (c)(i) and (d) have been met.

A re-export certificate may be issued only when the conditions referred to in paragraph 2(c)(i) and (d) and in paragraph 3(a) to (d) have been met.

ê 398/2009 Art. 1 pt. 2(a) (adapted)

ð new

5. Where an application for a re-export certificate concerns specimens introduced into the Ö Union Õ under an import permit issued by another Member State, the management authority must first consult the management authority which issued the permit. ð The Commission shall be empowered to adopt delegated acts in accordance with Article 20 concerning the establishment of ï the consultation procedures and Ö of Õ the cases in which consultation is necessary. shall be established by the Commission. Those measures, designed to amend non-essential elements of this Regulation, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(3).

ê 338/97

6. The conditions for the issuance of an export permit or re-export certificate as referred to in paragraph 2(a) and (c)(ii) shall not apply to:

(a)          worked specimens that were acquired more than 50 years previously; or

ê 338/97 (adapted)

(b)          dead specimens and parts and derivatives thereof for which the applicant provides documentary evidence that they were legally acquired before the provisions of this Regulation, Ö of Regulation (EC) No 338/97 Õ or of Regulation (EEC) No 3626/82 or of the Convention became applicable to them.

ê 338/97

7. The competent scientific authority in each Member State shall monitor the issuance of export permits by that Member State for specimens of species listed in Annex B and actual exports of such specimens. Whenever such a scientific authority determines that the export of specimens of any such species should be limited in order to maintain that species throughout its range at a level consistent with its role in the ecosystem in which it occurs, and well above the level at which that species might become eligible for inclusion in Annex A in accordance with Article 3(1)(a) or (b)(i), the scientific authority shall advise the competent management authority, in writing, of suitable measures to be taken to limit the issuance of export permits for specimens of that species.

ê 398/2009 Art. 1 pt. 2(b) (adapted)

ð new

Whenever a management authority is advised of the measures referred to in the first subpragraph, it shall inform and send comments to the Commission. If appropriate, ð the Commission shall, by means of implementing acts, ï recommend restrictions on exports of the species concerned in accordance with the regulatory procedure referred to in Article 18(2). ð Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 21(2). ï

ê 338/97

Article 6 - Rejection of applications for permits and certificates referred to in Articles 4, 5 and 10

1. When a Member State rejects an application for a permit or certificate in a case of significance in respect of the objectives of this Regulation, it shall immediately inform the Commission of the rejection and of the reasons for rejection.

2. The Commission shall communicate information received in accordance with paragraph 1 to the other Member States in order to ensure the uniform application of this Regulation.

3. When an application is made for a permit or certificate relating to specimens for which such an application has previously been rejected, the applicant must inform the competent authority to which the application is submitted of the previous rejection.

4. Member States shall recognise the rejection of applications by the competent authorities of the other Member States, where such rejection is based on the provisions of this Regulation.

However, the first subparagraph shall not apply where the circumstances have significantly changed or where new evidence to support an application has become available. In such cases, if a management authority issues a permit or certificate, it shall inform the Commission thereof, stating the reasons for issuance.

Article 7 - Derogations

1. Specimens born and bred in captivity or artificially propagated

Save where Article 8 applies, specimens of species listed in Annex A that have been born and bred in captivity or artificially propagated shall be treated in accordance with the provisions applicable to specimens of species listed in Annex B.

In the case of artificially propagated plants, the provisions of Articles 4 and 5 may be waived under special conditions. laid down by the Commission

ê 398/2009 Art. 1 pt. 3(a) (adapted)

ð new

ð The Commission shall be empowered to adopt delegated acts in accordance with Article 20 concerning: ï

(a)     the criteria for determining whether a specimen has been born and bred in captivity or artificially propagated and whether for commercial purposes;

(b)     the special conditions referred to in the second subparagraph of this paragraph relating to:

(i)      the use of phytosanitary certificates;

(ii)      trade by registered commercial traders and by the scientific institutions referred to in paragraph 4 of this Article; and

(iii)     trade in hybrids.

, shall be specified by the Commission. Those measures, designed to amend non-essential elements of this Regulation, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(3).

ê 338/97 (adapted)

2. Transit

By way of derogation from Article 4, where a specimen is in transit through the Ö Union Õ, checks and presentation at the border customs office at the point of introduction of the prescribed permits, certificates and notifications shall not be required.

In the case of species listed in the Annexes in accordance with Article 3(1) and Article 3(2)(a) and (b), the derogation referred to in the first subparagraph of this paragraph shall apply only where a valid export or re-export document provided for by the Convention, relating to the specimens that it accompanies and specifying the destination of the specimens, has been issued by the competent authorities of the exporting or re-exporting third country.

ê 398/2009 Art. 1 pt. 3(b)

ð new

If the document referred to in the second subparagraph has not been issued before export or re-export, the specimen must be seized and may, where applicable, be confiscated unless the document is submitted retrospectively in compliance with ð special ï the conditionsspecified by the Commission. Those measures, designed to amend non-essential elements of this Regulation, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(3).

ò new

The Commission shall be empowered to adopt delegated acts in accordance with Article 20 concerning the special conditions for submitting an export or re-export document retrospectively.

ê 398/2009 Art. 1 pt. 3(c) (adapted)

ð new

3. Personal and household effects

By way of derogation from Articles 4 and 5, the provisions of those Articles shall not apply to dead specimens, parts and derivatives of species listed in Annexes A to D which are personal or household effects being introduced into the Ö Union Õ, or exported or re-exported from the Union, in compliance with ð special ï provisions. that shall be specified by the Commission. Those measures, designed to amend non-essential elements of this Regulation, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(3).

ò new

The Commission shall be empowered to adopt delegated acts in accordance with Article 20 concerning the special provisions regarding the introduction, export or re-export of personal or household effects.

ê 398/2009 Art. 1 pt. 3(c) (adapted)

4. Scientific institutions

The documents referred to in Articles 4, 5, 8 and 9 shall not be required in the case of non-commercial loans, donations and exchanges between scientists and scientific institutions, registered by the management authorities of the States in which they are located, of herbarium specimens and other preserved, dried or embedded museum specimens, and of live plant material, bearing a label, the model of which has been established in accordance with the regulatory procedure referred to in Article 18(2) Ö second subparagraph of this paragraph Õ or a similar label issued or approved by a management authority of a third country.

ò new

The Commission shall, by means of implementing acts, establish a model for a label for live plant material. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 21(2).

ê 338/97 (adapted)

Article 8 - Provisions relating to the control of commercial activities

1. The purchase, offer to purchase, acquisition for commercial purposes, display to the public for commercial purposes, use for commercial gain and sale, keeping for sale, offering for sale or transporting for sale of specimens of the species listed in Annex A shall be prohibited.

2. Member States may prohibit the holding of specimens, in particular live animals of the species listed in Annex A.

3. In accordance with the requirements of other Ö Union Õ legislation on the conservation of wild fauna and flora, exemptions from the prohibitions referred to in paragraph 1 may be granted by the issuance of a certificate to that effect by a management authority of the Member State in which the specimens are located, on a case-by-case basis where the specimens:

(a)          were acquired in, or were introduced into, the Ö Union Õ before the provisions relating to species listed in Appendix I to the Convention or in Annex C1 to Regulation (EEC) No 3626/82 or in Annex A Ö to Regulation (EC) No 338/97 or to this Regulation Õ became applicable to the specimens; or

(b)          are worked specimens that were acquired more than 50 years previously; or

(c)          were introduced into the Ö Union Õ in compliance with the provisions of Ö Regulation (EC) No 338/97 or of Õ this Regulation and are to be used for purposes which are not detrimental to the survival of the species concerned; or

ê 338/97

(d)          are captive-born and bred specimens of an animal species or artificially propagated specimens of a plant species or are parts or derivatives of such specimens; or

(e)          are required under exceptional circumstances for the advancement of science or for essential biomedical purposes pursuant to Council Directive 86/609/EEC where the species in question proves to be the only one suitable for those purposes and where there are no specimens of the species which have been born and bred in captivity; or

(f)           are intended for breeding or propagation purposes from which conservation benefits will accrue to the species concerned; or

(g)          are intended for research or education aimed at the preservation or conservation of the species; or

(h)          originate in a Member State and were taken from the wild in accordance with the legislation in force in that Member State.

ê 398/2009 Art. 1 pt. 4 (adapted)

ð new

4. ð The Commission shall be empowered to adopt delegated acts in accordance with Article 20 concerning ï general derogations from the prohibitions referred to in paragraph 1 of this Article based on the conditions referred to in paragraph 3, as well as general derogations with regard to species listed in Annex A in accordance with point (ii) of Article 3(1)(b) may be defined by the Commission. Any such derogations must be in accordance with the requirements of other Ö Union Õ legislation on the conservation of wild fauna and flora. Those measures, designed to amend non-essential elements of this Regulation, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(3).

ê 338/97 (adapted)

5. The prohibitions referred to in paragraph 1 shall also apply to specimens of the species listed in Annex B except where it can be proved to the satisfaction of the competent authority of the Member State concerned that such specimens were acquired and, if they originated outside the Ö Union Õ, were introduced into it, in accordance with the legislation in force for the conservation of wild fauna and flora.

6. The competent authorities of the Member States shall have discretion to sell any specimen of the species listed in Annexes B, C and D they have confiscated under this Regulation, provided that it is not thus returned directly to the person or entity from whom it was confiscated or who was party to the offence. Such specimens may then be treated for all purposes as if they had been legally acquired.

Article 9 - Movement of live specimens

1. Any movement within the Ö Union Õ of a live specimen of a species listed in Annex A from the location indicated in the import permit or in any certificate issued in compliance with this Regulation shall require prior authorisation from a management authority of the Member State in which the specimen is located. In other cases of movement, the person responsible for moving the specimen must be able, where applicable, to provide proof of the legal origin of the specimen.

2. Such authorisation shall:

(a)          be granted only when the competent scientific authority of such Member State or, where the movement is to another Member State, the competent scientific authority of the latter, is satisfied that the intended accommodation for a live specimen at the place of destination is adequately equipped to conserve and care for it properly;

(b)          be confirmed by issuance of a certificate; and

(c)          where applicable, be immediately communicated to a management authority of the Member State in which the specimen is to be located.

3. However, no such authorisation shall be required if a live animal must be moved for the purpose of urgent veterinary treatment and is returned directly to its authorised location.

4. Where a live specimen of a species listed in Annex B is moved within the Ö Union Õ, the holder of the specimen may relinquish it only after ensuring that the intended recipient is adequately informed of the accommodation, equipment and practices required to ensure the specimen will be properly cared for.

5. When any live specimens are transported into, from or within the Ö Union Õ or are held during any period of transit or transhipment, they shall be prepared, moved and cared for in a manner such as to minimise the risk of injury, damage to health or cruel treatment and, in the case of animals, in conformity with Ö Union Õ legislation on the protection of animals during transport.

ê 398/2009 Art. 1 pt. 5 (adapted)

ð new

6. The Commission ð shall be empowered to adopt delegated acts in accordance with Article 20 concerning ï may establish restrictions on the holding or movement of live specimens of such species in relation to which restrictions on introduction into the Ö Union Õ have been established in accordance with Article 4(6). Those measures, designed to amend non-essential elements of this Regulation, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(3).

ê 338/97

Article 10 - Certificates to be issued

On receiving an application, together with all the requisite supporting documents, from the person concerned and provided that all the conditions governing their issuance have been fulfilled, a management authority of a Member State may issue a certificate for the purposes referred to in Article 5(2)(b), Article 5(3) and (4), Article 8(3) and Article 9(2)(b).

Article 11 - Validity of and special conditions for permits and certificates ê 338/97 (adapted)

1. Without prejudice to stricter measures which the Member States may adopt or maintain, permits and certificates issued by the competent authorities of the Member States in accordance with this Regulation shall be valid throughout the Ö Union Õ.

2. Any such permit or certificate, as well as any permit or certificate issued on the basis of it, shall be deemed void if a competent authority or the Commission, in consultation with the competent authority which issued the permit or certificate, establishes that it was issued on the false premise that the conditions for its issuance were met.

Specimens situated in the territory of a Member State and covered by such documents shall be seized by the competent authorities of that Member State and may be confiscated.

3. Any permit or certificate issued in accordance with this Regulation may stipulate conditions and requirements imposed by the issuing authority to ensure compliance with the provisions thereof. Where such conditions or requirements need to be incorporated in the design of permits or certificates, Member States shall inform the Commission thereof.

4. Any import permit issued on the basis of a copy of the corresponding export permit or re-export certificate shall be valid for the introduction of specimens into the Ö Union Õ only when accompanied by the original of the valid export permit or re-export certificate.

ê 398/2009 Art. 1 pt. 6 (adapted)

ð new

5. The Commission shall ð be empowered to adopt delegated acts in accordance with Article 20 concerning the ï establish time limits for the issuance of permits and certificates. Those measures, designed to amend non-essential elements of this Regulation, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(3).

ê 338/97 (adapted)

Article 12 - Places of introduction and export

1. Member States shall designate customs offices for carrying out the checks and formalities for the introduction into and export from the Ö Union Õ, in order to assign to them a customs-approved treatment or use, within the meaning of Regulation (EEC) No 2913/92, of specimens of species covered by this Regulation and shall state which offices are specifically intended to deal with live specimens.

2. All offices designated in accordance with paragraph 1 shall be provided with sufficient and adequately trained staff. Member States shall ensure that accommodation is provided in accordance with relevant Ö Union Õ legislation as regards the transport and accommodation of live animals and that, where necessary, adequate steps are taken for live plants.

3. All offices designated in accordance with paragraph 1 shall be notified to the Commission which shall publish a list of them in the Official Journal of the European Union.

ê 398/2009 Art. 1 pt. 7 (adapted)

ð new

4. In exceptional cases and in accordance with ð special ï the criteria defined by the Commission, a management authority may authorise the introduction into the Ö Union Õ or the export or re-export from the Union at a customs office other than one designated in accordance with paragraph 1. Those measures, designed to amend non-essential elements of this Regulation, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(3).

ò new

The Commission shall be empowered to adopt delegated acts in accordance with Article 20 concerning the special criteria in accordance with which the introduction, export or re-export at another customs office may be authorised.

ê 338/97

ð new

5. Member States shall ensure that at border crossing-points the public are informed of the implementing provisions ð adopted pursuant to ï of this Regulation.

ê 338/97

Article 13 - Management and scientific authorities and other competent authorities

1. Each Member State shall designate a management authority with primary responsibility for the implementation of this Regulation and for communication with the Commission.

Each Member State may also designate additional management authorities and other competent authorities to assist in the implementation, in which case the primary management authority shall be responsible for providing the additional authorities with all the information required for the correct application of this Regulation.

2. Each Member State shall designate one or more scientific authorities with appropriate qualifications whose duties shall be separate from those of any designated management authority.

ê 338/97 (adapted)

3. Not later than Ö 3 March 1997 Õ Member States shall forward the names and addresses of the designated management authorities, other authorities competent to issue permits or certificates and scientific authorities to the Commission, which shall publish this information in the Official Journal of the European Union.

ê 338/97

Each management authority referred to in the first subparagraph of paragraph 1 shall, if so requested by the Commission, communicate to it within two months the names and specimen signatures of the persons authorised to sign permits or certificates, and impressions of the stamps, seals or other devices used to authenticate permits or certificates.

Member States shall communicate to the Commission any changes in the information already provided, not later than two months after the implementation of such change.

Article 14 - Monitoring of compliance and investigation of infringements

1. The competent authorities of the Member States shall monitor compliance with the provisions of this Regulation.

If, at any time, the competent authorities have reason to believe that these provisions are being infringed, they shall take the appropriate steps to ensure compliance or to instigate legal action.

Member States shall inform the Commission and, in the case of species listed in the Appendices to the Convention, the Convention Secretariat of any steps taken by the competent authorities in relation to significant infringements of this Regulation, including seizures and confiscations.

2. The Commission shall draw the attention of the competent authorities of the Member States to matters whose investigation it considers necessary under this Regulation. Member States shall inform the Commission and, in the case of species listed in the Appendices to the Convention, the Convention Secretariat of the outcome of any subsequent investigation.

3. An enforcement group shall be established consisting of the representatives of each Member State's authorities with responsibility for ensuring the implementation of the provisions of this Regulation. The group shall be chaired by the representative of the Commission.

The enforcement group shall examine any technical question relating to the enforcement of this Regulation raised by the chairman, either on his own initiative or at the request of the members of the group or the Committee.

The Commission shall convey the opinions expressed in the enforcement group to the Committee.

Article 15 - Communication of information

1. The Member States and the Commission shall communicate to one another the information necessary for implementing this Regulation.

ê 338/97

ð new

The Member States and the Commission shall ensure that the necessary steps are taken to make the public aware and inform it of the provisions regarding the implementation of the Convention and of this Regulation and of the latter's implementing measures ð adopted pursuant to this Regulation ï.

ê 338/97

2. The Commission shall communicate with the Convention Secretariat so as to ensure that the Convention is effectively implemented throughout the territory to which this Regulation applies.

3. The Commission shall immediately communicate any opinion of the Scientific Review Group to the management authorities of the Member States concerned.

ê 338/97 (adapted)

è1 398/2009 Art. 1 pt. 8(a)(i)

è2 398/2009 Art. 1 pt. 8(a)(ii)

ð new

4. The management authorities of the Member States shall communicate to the Commission before 15 June each year all the information relating to the preceding year required for drawing up the reports referred to in Article VIII.7(a) of the Convention and equivalent information on international trade in all specimens of species listed in Annexes A, B and C and on introduction into the Ö Union Õ of specimens of species listed in Annex D. Ö The Commission shall, Õ ð by means of implementing acts, ï Ö specify Õ è1 the information to be communicated and the format for its presentation in accordance with the regulatory procedure referred to in Article 18(2). ç ð Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 21(2). ï

On the basis of the information referred to in the first subparagraph, the Commission shall publish before 31 October each year a statistical report on the introduction into, and the export and re-export from, the Ö Union Õ of specimens of the species to which this Regulation applies and shall forward to the Convention Secretariat information on the species to which the Convention applies.

Without prejudice to Article 22, the management authorities of the Member States shall, before 15 June of each second year, and for the first time in 1999, communicate to the Commission all the information relating to the preceding two years required for drawing up the reports referred to in Article VIII.7(b) of the Convention and equivalent information on the provisions of this Regulation that fall outside the scope of the Convention. Ö The Commission shall, Õ ð by means of implementing acts, ï Ö specify Õ è2 the information to be communicated and the format for its presentation in accordance with the regulatory procedure referred to in Article 18(2). ç ð Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 21(2). ï

On the basis of the information referred to in the third subparagraph, the Commission shall, before 31 October of each second year, and for the first time in 1999, draw up a report on the implementation and enforcement of this Regulation.

ê 398/2009 Art. 1 pt. 8(b)

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5. With a view to the preparation of amendments to the Annexes, the competent authorities of the Member States shall forward all relevant information to the Commission. The Commission shall ð , by means of implementing acts, ï specify the information required, in accordance with the regulatory procedure referred to in Article 18(2). ð Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 21(2). ï

ê 338/97 (adapted)

è1 Corrigendum 338/97 (OJ L 298, 1.11.1997, p. 70)

6. è1 Without prejudice to Directive Ö 2003/4/EC of the European Parliament and of the Council Õ ç, the Commission shall take appropriate measures to protect the confidentiality of information obtained in the implementation of this Regulation.

Article 16 - Sanctions

1. Member States shall take appropriate measures to ensure the imposition of sanctions for at least the following infringements of this Regulation:

(a)          introduction into, or export or re-export from, the Ö Union Õ of specimens without the appropriate permit or certificate or with a false, falsified or invalid permit or certificate or one altered without authorisation by the issuing authority;

(b)          failure to comply with the stipulations specified on a permit or certificate issued in accordance with this Regulation;

(c)          making a false declaration or knowingly providing false information in order to obtain a permit or certificate;

(d)          using a false, falsified or invalid permit or certificate or one altered without authorisation as a basis for obtaining a Ö Union Õ permit or certificate or for any other official purpose in connection with this Regulation;

(e)          failure to make an import notification or making a false import notification;

(f)           shipment of live specimens not properly prepared so as to minimise the risk of injury, damage to health or cruel treatment;

(g)          use of specimens of species listed in Annex A other than in accordance with the authorisation given at the time of issuance of the import permit or subsequently;

(h)          trade in artificially propagated plants contrary to the provisions laid down in accordance with the second subparagraph of Article 7(1);

(i)           shipment of specimens into or out of or in transit through the territory of the Ö Union Õ without the appropriate permit or certificate issued in accordance with this Regulation and, in the case of export or re-export from a third country party to the Convention, in accordance therewith, or without satisfactory proof of the existence of such permit or certificate;

(j)           purchase, offer to purchase, acquisition for commercial purposes, use for commercial gain, display to the public for commercial purposes, sale, keeping for sale, offering for sale or transporting for sale of specimens in breach of Article 8;

(k)          use of a permit or certificate for any specimen other than one for which it was issued;

(l)           falsification or alteration of any permit or certificate issued in accordance with this Regulation;

(m)         failure to disclose the rejection of an application for a Ö Union Õ import, export or re-export permit or certificate, in accordance with Article 6(3).

2. The measures referred to in paragraph 1 shall be appropriate to the nature and gravity of the infringement and shall include provisions relating to the seizure and, where appropriate, confiscation of specimens.

3. Where a specimen is confiscated, it shall be entrusted to a competent authority of the Member State of confiscation which:

(a)          following consultation with a scientific authority of that Member State, shall place or otherwise dispose of the specimen under conditions which it deems to be appropriate and consistent with the purposes and provisions of the Convention and this Regulation; and

(b)          in the case of a live specimen which has been introduced into the Ö Union Õ, may, after consultation with the State of export, return the specimen to that State at the expense of the convicted person.

4. Where a live specimen of a species listed in Annex B or C arrives at a point of introduction into the Ö Union Õ without the appropriate valid permit or certificate, the specimen must be seized and may be confiscated or, if the consignee refuses to acknowledge the specimen, the competent authorities of the Member State responsible for the point of introduction may, if appropriate, refuse to accept the shipment and require the carrier to return the specimen to its place of departure.

Article 17 - The Scientific Review Group

1. A Scientific Review Group is hereby established, consisting of the representatives of each Member State's scientific authority or authorities and chaired by the representative of the Commission.

2. The Scientific Review Group shall examine any scientific question relating to the application of this Regulation — in particular concerning Article 4(1)(a), (2)(a) and (6) — raised by the chairman, either on his own initiative or at the request of the members of the Group or the Committee.

3. The Commission shall convey the opinions of the Scientific Review Group to the Committee.

ê 398/2009 Art. 1 pt. 10 (adapted)

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Article 18 - Ö Further delegated powers Õ

1. In accordance with the regulatory procedure referred to in Article 18(2), the Commission shall adopt the measures referred to in Article 4(6), Article 5(7)(b), Article 7(4), the first and the third subparagraphs of Article 15(4), Article 15(5) and Article 21(3).

2. The Commission shall adopt the measures referred to in Article 4(7), Article 5(5), the third subparagraph of Article 7(1), the third subparagraph of Article 7(2), Article 7(3), Article 8(4), Article 9(6), Article 11(5) and Article 12(4). Those measures, designed to amend non-essential elements of this Regulation, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(3).

1. The Commission shall ð be empowered to adopt delegated acts in accordance with Article 20 concerning the ï uniform conditions and criteria for:

(a)          the issue, validity and use of the documents referred to in Article 4, Article 5, Article 7(4) and Article 10;

(b)          the use of phytosanitary certificates referred to in point (a) of the second subparagraph of Article 7(1);

(c)          the establishment of procedures, where necessary, for marking specimens in order to facilitate identification and ensure enforcement of the provisions of this Regulation.

Those measures, designed to amend non-essential elements of this Regulation, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(3).

2. The Commission shall ð be empowered to ï adopt, where necessary, ð delegated acts in accordance with Article 20 concerning ï additional measures to implement resolutions of the Conference of the Parties to the Convention, decisions or recommendations of the Standing Committee of the Convention and recommendations of the Convention Secretariat. Those measures, designed to amend non-essential elements of this Regulation, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(3).

3. The Commission shall ð be empowered to adopt delegated acts in accordance with Article 20 for the purpose of ï Ö amending Õ Annexes A to D, except in the case of amendments to Annex A which do not result from decisions of the Conference of the Parties to the Convention. Those measures, designed to amend non-essential elements of this Regulation, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(4).

Article 19 - Ö Further implementing powers Õ

1. The Commission shall ð , by means of implementing acts, ï determine the design of the documents referred to in Article 4, Article 5, Article 7(4) and Article 10 in accordance with the regulatory procedure referred to in Article 18(2). ð Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 21(2). ï

ò new

2. The Commission shall, by means of implementing acts, prescribe a form for the presentation of the import notification. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 21(2).

Article 20 - Exercise of the delegation

1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Article 4(7), Article 5(5), Article 7(1), (2) and (3), Article 8(4), Article 9(6), Article 11(5), Article 12(4) and Article 18(1), (2) and (3) shall be conferred on the Commission for an indeterminate period of time from [the date of entry into force of the basic legislative act or from any other date set by the legislator].

3. The delegation of powers referred to in Article 4(7), Article 5(5), Article 7(1), (2) and (3), Article 8(4), Article 9(6), Article 11(5), Article 12(4) and Article 18(1), (2) and (3) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5. A delegated act adopted pursuant to Article 4(7), Article 5(5), Article 7(1), (2) and (3), Article 8(4), Article 9(6), Article 11(5), Article 12(4) and Article 18(1), (2) and (3) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of [two months] of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by [two months] at the initiative of the European Parliament or the Council.

ê 1882/2003 Art. 3 and Annex III pt. 66 (adapted)

Article 21 - Ö Committee procedure Õ

1. The Commission shall be assisted by Ö a Committee which shall be referred to as the Committee on Trade in Wild Fauna and Flora Õ. Ö That committee shall be a committee within the meaning of Regulation (EU) No 182/2011. Õ

ê 1882/2003 Art. 3 and Annex III pt. 66

2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months. As regards the Committee's tasks referred to in points 1 and 2 of Article 19, if, on the expiry of a period of three months from the date of referral to the Council, the Council has not acted, the proposed measures shall be adopted by the Commission.

ê 398/2009 Art. 1 pt. 9(a)

3. Where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

ê 398/2009 Art. 1 pt. 9(b)

4. Where reference is made to this paragraph, Article 5a(1) to (4) and (5)(b) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

The time limits laid down in Article 5a(3)(c) and (4)(b) and (e) of Decision 1999/468/EC shall be set at one month, one month and two months respectively.

ò new

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

ê 338/97

Article 22 - Final provisions

Each Member State shall notify the Commission and the Convention Secretariat of the provisions which it adopts specifically for the implementation of this Regulation and of all legal instruments used and measures taken for its implementation and enforcement.

The Commission shall communicate that information to the other Member States.

ê

Article 23 - Repeal

Regulation (EC) No 338/97 is repealed.

References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex III.

ê 338/97 (adapted)

Article 24 - Ö Entry into force Õ

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.