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 the following Articles.
Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein
Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein
Article 1 Object
This Regulation shall apply in compliance with the objectives, principles and provisions of the Convention defined in Article 2.
Article 2 Definitions
For the purposes of this Regulation:
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‘Committee’ shall mean the Committee on Trade in Wild Fauna and Flora, established under Article 18;
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‘Convention’ shall mean the Convention on International Trade in Endangered Species of Wild Fauna and Flora (Cites);
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‘country of origin’ shall mean the country in which a specimen was taken from the wild, captive-bred or artificially propagated;
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‘import notification’ shall mean the notification given by the importer or his agent or representative, at the time of the introduction into the Community of a specimen of a species included in Annexes C or D, on a form prescribed by the Commission in accordance with the procedure laid down in Article 18;
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‘introduction from the sea’ shall mean the introduction into the Community 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;
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‘issuance’ shall mean the completion of all procedures involved in preparing and validating a permit or certificate and its delivery to the applicant;
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‘management authority’ shall mean a national administrative authority designated, in the case of a Member State, in accordance with Article 13(1)(a) or, in the case of a third country party to the Convention, in accordance with Article IX of the Convention;
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‘Member State of destination’ shall mean 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;
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‘offering for sale’ shall mean 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;
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‘personal or household effects’ shall mean 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;
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‘place of destination’ shall mean the place at which at the time of introduction into the Community, 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;
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‘population’ shall mean a biologically or geographically distinct total number of individuals;
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‘primarily commercial purposes’ shall mean all purposes the non-commercial aspects of which do not clearly predominate;
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‘re-export from the Community’ shall mean export from the Community of any specimen that has previously been introduced;
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‘reintroduction into the Community’ shall mean introduction into the Community of any specimen that has previously been exported or re-exported;
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‘sale’ shall mean 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;
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‘scientific authority’ shall mean a scientific authority designated, in the case of a Member State, in accordance with Article 13(1)(b) or, in the case of a third country party to the Convention, in accordance with Article IX of the Convention;
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‘Scientific Review Group’ shall mean the consultative body established under Article 17;
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‘species’ shall mean a species, subspecies or population thereof;
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‘specimen’ shall mean 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 will 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;
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‘trade’ shall mean the introduction into the Community, including introduction from the sea, and the export and re-export therefrom, as well as the use, movement and transfer of possession within the Community, including within a Member State, of specimens subject to the provisions of this Regulation;
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‘transit’ shall mean the transport of specimens between two points outside the Community through the territory of the Community 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;
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‘worked specimens that were acquired more than 50 years previously’ shall mean specimens that were significantly altered from their natural raw state for jewellery, adornment, art, utility, or musical instruments, more than 50 years before the entry into force of this Regulation 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;
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‘checks at the time of introduction, export, re-export and transit’ shall mean documentary checks on the certificates, permits and notifications provided for in this Regulation and — in cases where Community 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:
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the species listed in Appendix I to the Convention for which the Member States have not entered a reservation;
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any species:
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which is, or may be, in demand for utilization in the Community 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
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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 subparagraphs (a) or (b)(i) and whose listing in the Annex is essential for the effective protection of those taxa.
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2.
Annex B shall contain:
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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;
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the species listed in Appendix I to the Convention for which a reservation has been entered;
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any other species not listed in Appendices I or II to the Convention:
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which is subject to levels of international trade that might not be compatible:
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with its survival or with the survival of populations in certain countries, or
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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
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whose listing in the Annex for reasons of similarity in appearance to other species listed in Annex A or Annex B, is essential in order to ensure the effectiveness of controls on trade in specimens of such species;
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species in relation to which it has been established that the introduction of live specimens into the natural habitat of the Community would constitute an ecological threat to wild species of fauna and flora indigenous to the Community.
3.
Annex C shall contain:
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the species listed in Appendix III to the Convention, other than those listed in Annexes A or B, for which the Member States have not entered a reservation;
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the species listed in Appendix II to the Convention for which a reservation has been entered.
4.
Annex D shall contain:
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species not listed in Annexes A to C which are imported into the Community in such numbers as to warrant monitoring;
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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 Community
1.
The introduction into the Community 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:
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the competent scientific authority, after considering any opinion by the Scientific Review Group, has advised that the introduction into the Community:
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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;
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is taking place:
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for one of the purposes referred to in Article 8(3)(e), (f) and (g), or
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for other purposes which are not detrimental to the survival of the species concerned;
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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;
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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;
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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;
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the management authority is satisfied that the specimen is not to be used for primarily commercial purposes;
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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
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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 minimize the risk of injury, damage to health or cruel treatment.
2.
The introduction into the Community 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:
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the competent scientific authority, after examining available data and considering any opinion from the Scientific Review Group, is of the opinion that the introduction into the Community 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;
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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;
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the conditions referred to in paragraph 1(b)(i), (e) and (f) have been met.
3.
The introduction into the Community 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:
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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
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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 Community 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:
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that they had previously been legally introduced into or acquired in the Community and that they are, modified or not, being reintroduced into the Community; or
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that they are worked specimens that were acquired more than 50 years previously.
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 from the Scientific Review Group, the Commission may establish general restrictions, or restrictions relating to certain countries of origin, on the introduction into the Community:
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on the basis of the conditions referred to in paragraph 1(a)(i) or (e), of specimens of species listed in Annex A;
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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
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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
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of live specimens of species for which it has been established that their introduction into the natural environment of the Community presents an ecological threat to wild species of fauna and flora indigenous to the Community.
The Commission shall on a quarterly basis publish a list of such restrictions, if any, in the Official Journal of the European Communities.
7.
Where special cases of transhipment, air transfer or rail transport occur following introduction into the Community, derogations from completion of the checks and presentations of import documents at the border customs office at the point of introduction which are referred to in paragraphs 1 to 4 shall be granted by the Commission in order to permit such checks and presentations to be made 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).
Article 5 Export or re-export from the Community
1.
The export or re-export from the Community 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:
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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;
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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;
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the management authority is satisfied that:
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any live specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment; and
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the specimens of species not listed in Annex I to the Convention will not be used for primarily commercial purposes, or
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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;
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and
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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:
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were introduced into the Community in accordance with the provisions of this Regulation;
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if introduced into the Community before the entry into force of this Regulation, were introduced in accordance with the provisions of Regulation (EEC) No 3626/82; or
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if introduced into the Community before 1984, entered international trade in accordance with the provisions of the Convention; or
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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 Community 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.
5.
Where an application for a re-export certificate concerns specimens introduced into the Community under an import permit issued by another Member State, the management authority must first consult the management authority which issued the permit. The consultation procedures and 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).
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:
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worked specimens that were acquired more than 50 years previously; or
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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, or of Regulation (EEC) No 3626/82 or of the Convention became applicable to them.
7.
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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 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
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Whenever a management authority is advised of the measures referred to in (a), it shall inform and send comments to the Commission which shall, if appropriate, recommend restrictions on exports of the species concerned in accordance with the regulatory procedure referred to in Article 18(2).