COMMISSION REGULATION (EC) No 100/2008
of 4 February 2008
amending, as regards sample collections and certain formalities relating to the trade in species of wild fauna and flora, Regulation (EC) No 865/2006 laying down detailed rules for the implementation of Council Regulation (EC) No 338/97
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (1), and in particular Article 19(1)(i) and (iii), (2) and (4) thereof,
Whereas:
(1)
In order to implement certain resolutions adopted at the thirteenth and fourteenth meetings of the Conference of the Parties to CITES, further provisions should be added to Commission Regulation (EC) No 865/2006 of 4 May 2006 laying down detailed rules concerning the implementation of Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein (2).
(2)
CITES Resolutions Conf. 9.7 (Rev. CoP13) on Transit and Trans Transhipment and Conf. 12.3 (Rev. CoP13) on Permits and Certificates provide for special procedures in order to ease the cross-border movement of sample collections covered by ATA carnets as defined in Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (3). In order to provide economic operators within the Community with similar conditions as those of other CITES Parties for the movement of such sample collections, it is necessary to make provision for such procedures in Community legislation.
(3)
CITES Resolution Conf. 12.3 (Rev. CoP13) on Permits and Certificates allows for permits to be issued retrospectively for personal and household effects, where the Management Authority is satisfied that a genuine error was made and that there was no attempt to deceive, and requires Parties to report on such permits in the biennial reports to the Secretariat. Provision should be made to that effect in order to allow for adequate flexibility and to reduce the bureaucratic burden in relation to imports of personal and household effects.
(4)
CITES Resolution Conf. 13.6 on the implementation of Article VII, paragraph 2 of the Convention concerning ‘pre-Convention’ specimens provides a definition of ‘pre-Convention’ specimen and clarifies the dates that are to be taken to establish whether a specimen can be considered as ‘pre-Convention’. For clarity purposes, these provisions should be implemented in Community Legislation.
(5)
CITES Resolution Conf. 13.7 (Rev. CoP14) on Control of Trade in Personal and Household Effects provides a list of species for which no document is required for the export and import of specimens that are Personal and Household Effects below a certain amount. This list includes derogations for giant clams and seahorses as well as for a reduced quantity for caviar, which should be implemented.
(6)
CITES Resolution Conf. 12.7 (Rev. CoP14) on Conservation of and Trade in sturgeons and paddlefish sets out specific conditions for Parties to allow imports, exports and re-exports of caviar. In order to reduce fraud, these provisions should be implemented in Community Legislation.
(7)
At the fourteenth meeting of the Conference of the Parties to CITES, the standard references for nomenclature, to be used to indicate scientific names of species in permits and certificates, were updated and the listing of animal species in the CITES Appendices were rearranged in order to present the orders, families and genera in alphabetical order. These changes therefore need to be reflected in Annex VIII and Annex X of Regulation (EC) No 865/2006.
(8)
The Conference of the Parties to CITES has adopted a Biennial report format for the submission of the biennial reports required under Article VIII, paragraph 7(b) of the Convention. Member States should therefore submit their biennial reports in accordance with Biennial report format, as regards information required under the Convention, and in accordance with a supplementary report format as regards the information required under Regulation (EC) No 338/97 and Regulation (EC) No 865/2006.
(9)
Experience gained in implementation of Regulation (EC) No 865/2006 has shown that the provisions therein relating to transaction-specific certificates need to be amended in order to provide greater flexibility in the use of such certificates and to allow them to be used in Member States other than the issuing Member State.
(10)
Regulation (EC) No 865/2006 should therefore be amended accordingly.
(11)
The measures provided for in this Regulation are in accordance with the opinion of the Committee on Trade in Wild Fauna and Flora,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 865/2006 is amended as follows:
1.
Article 1 is amended as follows:
(a)
Point (1) is replaced by the following:
‘(1)
“date of acquisition” means the date on which a specimen was taken from the wild, born in captivity or artificially propagated, or, if such date is unknown or cannot be proved, any subsequent and provable date on which it was first possessed by a person;’
(b)
point (7) is replaced by the following:
‘(7)
“transaction-specific certificates” means certificates issued in accordance with Article 48 that are valid only for one or more specified transactions;’
(c)
the following points (9) and (10) are added:
‘(9)
“sample collection” means a collection of legally acquired dead specimens, parts and derivatives thereof, that are transported across borders for presentation purposes;
(10)
“pre-Convention specimen” means a specimen acquired before the species concerned was first included in the Appendices to the Convention.’;
2.
Article 2, paragraph 1 is replaced by the following:
‘1. The forms on which import permits, export permits, re-export certificates, personal ownership certificates, sample collection certificates and applications for such documents are drawn up shall conform, except as regards spaces reserved for national use, to the model set out in Annex I.’;
3.
Article 4, paragraph 1 is replaced by the following:
‘1. Forms shall be completed in typescript.
However, applications for import and export permits, for re-export certificates, for the certificates provided for in Articles 5(2)(b), 5(3), 5(4), 8(3) and 9(2)(b) of Regulation (EC) No 338/97, for personal ownership certificates, for sample collection certificates and for travelling exhibition certificates as well as import notifications, continuation sheets and labels may be completed in manuscript, provided this is done legibly, in ink and in block capitals.’;
4.
The following Article 5a is inserted:
‘Article 5a
Specific content of permits, certificates and applications for plant specimens
In case of plant specimens that cease to qualify for an exemption from the provisions of the Convention or Regulation (EC) No 338/97 in accordance with the “Notes on the interpretation of Annexes A, B, C and D” in the Annex thereto, under which they were legally exported and imported, the country to be indicated in box 15 of the forms in Annex I and III, box 4 of the forms in Annex II and box 10 of the forms in Annex V to this Regulation may be the country in which the specimens ceased to qualify for the exemption.
In those cases the box reserved for the entry of “special conditions” in the permit or certificate shall include the statement “Legally imported under exemption from the provisions of CITES” and shall specify to which exemption this refers.’;
5.
in Article 7, the following paragraph 4 is added:
‘4. Permits and certificates issued by third countries with source code “O” shall be accepted only if they cover specimens that conform to the definition of pre-Convention specimen set out in Article 1(10) and include either the date of acquisition of the specimens or a statement that the specimens were acquired before a specific date.’;
6.
Article 9 is replaced by the following:
‘Article 9
Shipments of specimens
Without prejudice to Articles 31, 38 and 44b, a separate import permit, import notification, export permit or re-export certificate shall be issued for each shipment of specimens shipped together as part of one load.’;
7.
Article 10 is amended as follows:
(a)
the title is replaced by the following:
‘Article 10
Validity of import and export permits, re-export certificates, travelling exhibition certificates, personal ownership certificates and sample collection certificates’;
(b)
in paragraph 1, the following subparagraphs are added:
‘As regards caviar of sturgeon species (Acipenseriformes spp.) from shared stocks subject to export quotas, which is covered by an export permit, import permits referred to in the first subparagraph shall not be valid beyond the last day of the quota year in which the caviar was harvested and processed or the last day of the 12-month period referred to in the first subparagraph, whichever is the earlier.
As regards caviar of sturgeon species (Acipenseriformes spp.) covered by a re-export certificate, import permits referred to in the first subparagraph shall not be valid beyond the last day of the period of 18 months after the date of issuance of the relevant original export permit or the last day of the 12-month period referred to in the first subparagraph, whichever is the earlier.’;
(c)
in paragraph 2, the following subparagraphs are added:
‘As regards caviar of sturgeon species (Acipenseriformes spp.) from shared stocks subject to export quotas, export permits referred to in the first subparagraph shall not be valid beyond the last day of the quota year in which the caviar was harvested and processed or the last day of the six-month period referred to in the first subparagraph, whichever is the earlier.
As regards caviar of sturgeon species (Acipenseriformes spp.), re-export certificates referred to in the first subparagraph shall not be valid beyond the last day of the period of 18 months after the date of issuance of the relevant original export permit or the last day of the six-month period referred to in the first subparagraph, whichever is the earlier.’;
(d)
the following paragraph 2a is inserted:
‘2a. For the purpose of paragraph 1, second subparagraph and paragraph 2 second subparagraph, the quota year shall be that agreed by the Conference of the Parties to the Convention.’;
(e)
the following paragraph 3a is inserted:
‘3a. The period of validity of sample collection certificates issued in accordance with Article 44a shall not exceed six months. The date of expiry of a sample collection certificate shall not be later than that of the ATA carnet accompanying it.’;
(f)
paragraph 4 is replaced by the following:
‘4. After their expiry, the permits and certificates referred to in paragraphs 1, 2, 3 and 3a shall be considered as void.’;
(g)
paragraph 6 is replaced by the following:
‘6. The holder shall, without undue delay, return to the issuing management authority the original and all copies of any import permit, export permit re-export certificate, travelling exhibition certificate, personal ownership certificate or sample collection certificate, which has expired or which is unused or no longer valid.’;
8.
Article 11 is amended as follows:
(a)
in paragraph 2, the following point (e) is added:
‘(e)
where any special conditions specified in box 20 are no longer fulfilled.’;
(b)
in paragraph 3, the following subparagraph is added:
‘Where a transaction specific certificate is issued for the purpose of allowing several transactions, it shall be valid only within the territory of the issuing Member State. Where transaction specific certificates are to be used in a Member State other than the issuing Member State, they shall be issued for one transaction only and their validity shall be limited to that transaction. It shall be indicated in box 20 whether the certificate is for one or more transactions and the Member State(s) in whose territory it is valid.’;
(c)
The second subparagraph of paragraph 4 shall be replaced by the following new paragraph 5:
‘5. Documents that cease to be valid in accordance with this Article shall, without undue delay, be returned to the issuing management authority which, where appropriate, may issue a certificate reflecting the required changes in accordance with Article 51.’;
9.
Article 15 is amended as follows:
(a)
in paragraph 2, the following subparagraph is added:
‘As regards specimens imported or (re-)exported as personal and household effects, to which the provisions of Chapter XIV apply, and as regards personally owned live animals, which are legally acquired and held for personal non-commercial purposes, the derogation provided for in paragraph 1 shall also apply where the competent management authority of the Member State, in consultation with the relevant enforcement authority, is satisfied that there is evidence that a genuine error has been made and that there was no attempt to deceive and the import or (re-)export of the specimens concerned is in compliance with Regulation (EC) No 338/97, the Convention and the relevant legislation of a third country.’;
(b)
the following paragraph 3a is inserted:
‘3a. For specimens for which an import permit is issued pursuant to the second subparagraph of paragraph 2, commercial activities, as laid down in Article 8(1) of Regulation (EC) No 338/97, shall be prohibited for 6 months from the date of issuance of the permit and no exemptions for specimens of Annex A species, as provided for in Article 8(3) of that Regulation, shall be granted during that period.
In the case of import permits issued pursuant to paragraph 2 second subparagraph for specimens of species listed in Annex B to Regulation (EC) No. 338/97 and for specimens of species listed in Annex A and referred to in Article 4(5)(b) thereof, the stipulation “by way of derogation to Articles 8(3) or (5) of Regulation (EC) No 338/97, commercial activities, as laid down in Article 8(1) of that Regulation, shall be prohibited for at least 6 months from the date of issuance of this permit” shall be included in box 23.’;
10.
the following Article 20a is inserted:
‘Article 20a
Rejection of applications for import permits
Member States shall reject applications for import permits for caviar and meat of sturgeon species (Acipenseriformes spp.) from shared stocks unless export quotas have been set for the species in accordance with the procedure approved by the Conference of the Parties to the Convention.’;
11.
the following Article 26a is inserted:
‘Article 26a
Rejection of applications for export permits
Member States shall reject applications for export permits for caviar and meat of sturgeon species (Acipenseriformes spp.) from shared stocks unless export quotas have been set for the species in accordance with the procedure approved by the Conference of the Parties to the Convention.’;
12.
Article 31, point 3, is replaced by the following:
‘(3)
as a certificate in accordance with Article 8(3) of Regulation (EC) No 338/97 for the sole purpose of allowing the specimens to be displayed to the public for commercial purposes.’;
13.
in Article 36, the second paragraph is replaced by the following:
‘The replacement shall bear the same number, if possible, and the same date of validity as the original document, and shall include, in box 20, one of the following statements:
“This certificate is a true copy of the original”, or “This certificate cancels and replaces the original bearing the number xxxx issued on xx.xx.xxxx.”’;
14.
in Article 44, the second paragraph is replaced by the following:
‘The replacement shall bear the same number, if possible, and the same date of validity as the original document, and shall include, in box 23, one of the following statements:
“This certificate is a true copy of the original.”, or “This certificate cancels and replaces the original bearing the number xxxx issued on xx.xx.xxxx.”’;
15.
The following Chapter VIIIa is inserted after Article 44:
‘CHAPTER VIIIa
SAMPLE COLLECTION CERTIFICATES
Article 44a
Issue
Member States may issue sample collection certificates in respect of sample collections, provided the collection is covered by a valid ATA carnet and includes specimens, parts or derivatives of species listed in Annexes A, B or C of Regulation (EC) No 338/97.
For the purposes of the first paragraph, specimens, parts or derivatives of species listed in Annex A must comply with Chapter XIII of this Regulation.
Article 44b
Use
Provided that a sample collection covered by a sample collection certificate is accompanied by a valid ATA carnet, a certificate, issued in accordance with Article 44a, may be used as follows:
(1)
as an import permit in accordance with Article 4 of Regulation (EC) No 338/97;
(2)
as an export permit or re-export certificate in accordance with Article 5 of Regulation (EC) No 338/97, where the country of destination recognises and allows the use of ATA carnets;
(3)
as a certificate in accordance with Article 8(3) of Regulation (EC) No 338/97 for the sole purpose of allowing the specimens to be displayed to the public for commercial purposes.
Article 44c
Issuing authority
1. Where the sample collection originates within the Community the issuing authority for a sample collection certificate shall be the management authority of the Member State in which the sample collection originates.
2. Where the sample collection originates in a third country, the issuing authority for a sample collection certificate shall be the management authority of the Member State of first destination and the issuance of that certificate shall be based on the provision of an equivalent document, issued by that third country.
Article 44d
Requirements
1. A sample collection covered by a sample collection certificate must be re-imported into the Community before the date of expiry of the certificate.
2. The specimens covered by a sample collection certificate may not be sold or otherwise transferred whilst outside the territory of the State that issued the certificate.
3. A sample collection certificate shall not be transferable. If the specimens covered by a sample collection certificate are stolen, destroyed, or lost, the issuing management authority and the management authority of the country in which this occurred shall be immediately informed.
4. A sample collection certificate shall indicate that the document is for “other: Sample Collection” and shall include the number of the accompanying ATA carnet in box 23.
The following text shall be included in box 23 or in an appropriate annex to the certificate:
“For sample collection accompanied by ATA carnet No: xxx
This certificate covers a sample collection and is not valid unless accompanied by a valid ATA carnet. This certificate is not transferable. The specimens covered by this certificate may not be sold or otherwise transferred whilst outside the territory of the State that issued this document. This certificate may be used for (re-)export from [indicate the country of (re-)export] via [indicate the countries to be visited] for presentation purposes and import back to [indicate the country of (re-)export].”
5. In the case of sample collection certificates issued in accordance with Article 44c(2), paragraphs 1 and 4 of this Article shall not apply. In such cases, the certificate shall include the following text in box 23:
“This certificate is not valid unless accompanied by an original CITES document issued by a third country in accordance with the provisions established by the Conference of the Parties to the Convention.”
Article 44e
Applications
1. The applicant for a sample collection certificate shall, where appropriate, complete boxes 1, 3, 4 and 7 to 23 of the application form and boxes 1, 3, 4 and 7 to 22 of the original and all copies. The entries in box 1 and 3 must be identical. The list of countries to be visited must be indicated in box 23.
Member States may, however, provide that only an application form is to be completed.
2. The duly completed form shall be submitted to a management authority of the Member State in which the specimens are located, or in the case referred to in Article 44c(2), to the management authority of the Member State of first destination, together with the necessary information and the documentary evidence that that authority deems necessary so as to allow it to determine whether a certificate should be issued.
The omission of information from the application must be justified.
3. Where an application is made for a certificate relating to specimens for which such an application has previously been rejected, the applicant shall inform the management authority of that fact.
Article 44f
Documents to be surrendered by the holder to the customs office
1. In the case of a sample collection certificate issued in accordance with Article 44c(1), the holder or his authorised representative shall, for verification purposes, surrender the original (form 1) and a copy of that certificate, and where appropriate the copy for the holder (form 2) and the copy for return to the issuing management authority (form 3), as well as the original of the valid ATA carnet to a customs office designated in accordance with Article 12(1) of Regulation (EC) No 338/97.
The customs office shall, after processing the ATA carnet in accordance with the customs rules contained in Regulation (EC) No 2454/93, and, if necessary, entering the number of the accompanying ATA carnet into the original and copy of the sample collection certificate, return the original documents to the holder or his authorised representative, endorse the copy of the sample collection certificate and forward that endorsed copy to the relevant management authority in accordance with Article 45.
However, at the time of the first export from the Community, the customs office shall, after completing box 27, return the original sample collection certificate (form 1) and the copy for the holder (form 2) to the holder or his authorised representative, and forward the copy for return to the issuing management authority (form 3) in accordance with Article 45.
2. In the case of a sample collection certificate issued in accordance with Article 44c(2), paragraph (1) of this Article shall apply, except that the holder or his authorised representative shall also submit, for verification purposes, the original certificate issued by the third country.
Article 44g
Replacement
A sample collection certificate that has been lost, stolen, or destroyed may be replaced only by the authority which issued it.
The replacement shall bear the same number, if possible, and the same date of validity as the original document, and shall include, in box 23, one of the following statements:
“This certificate is a true copy of the original”, or “This certificate cancels and replaces the original bearing the number xxxx issued on xx/xx/xxxx”.’;
16.
in Article 57(5) is replaced by the following:
‘5. By way of derogation from paragraphs 3 and 4, the introduction or re-introduction into the Community of the following items listed in Annex B to Regulation (EC) No 338/97 shall not require the presentation of a (re-)export document or an import permit:
(a)
caviar of sturgeon species (Acipenseriformes spp.), up to a maximum of 125 grams per person, in containers that are individually marked in accordance with Article 66(6);
(b)
rainsticks of Cactaceae spp., up to three per person;
(c)
dead worked specimens of Crocodylia spp., excluding meat and hunting trophies, up to four per person;
(d)
shells of Strombus gigas, up to three per person;
(e)
Hippocampus spp. up to four dead specimens per person;
(f)
shells of Tridacnidae spp. up to three specimens per person not exceeding three kg in total, where a specimen may be one intact shell or two matching halves.’;
17.
in Article 58, paragraph 4 is replaced by the following:
‘4. By way of derogation from paragraphs 2 and 3, the export or re-export of the items listed in points (a) to (f) of Article 57(5) shall not require the presentation of a (re-)export document.’;
18.
in Article 66, paragraphs 6 and 7 are replaced by the following:
‘6. The specimens referred to in Articles 64 and 65 shall be marked in accordance with the method approved or recommended by the Conference of the Parties to the Convention for the specimens concerned and, in particular, the containers of caviar referred to in Articles 57(5)(a), 64(1)(g), 64(2) and 65(3) shall be individually marked by means of non-reusable labels affixed to each primary container. Where the non-reusable label does not seal the primary container, the caviar shall be packaged in such a manner as to permit visual evidence of any opening of the container.
7. Only those processing plants and (re-)packaging plants that are licensed by the management authority of a Member State shall be entitled to process and package or re-package caviar for export, re-export or intra-Community trade.
Licensed processing and (re-)packaging plants shall be required to maintain adequate records of the quantities of caviar imported, exported, re-exported, produced in situ or stored, as appropriate. These records must be available for inspection by the management authority in the relevant Member State.
A unique registration code shall be attributed to each such processing or (re-)packaging plant by that management authority.
The list of facilities licensed in accordance with this paragraph, as well as any changes thereto, shall be notified to the Secretariat of the Convention and to the Commission.
For the purpose of this paragraph processing plants shall include caviar producing aquaculture operations.’;
19.
Article 69 is amended as follows:
(a)
in paragraph 5, the following point (f) is added:
‘(f)
cases where export permits and re-export certificates were issued retrospectively in accordance with Article 15 of the Regulation.’;
(b)
the following paragraph 6 is added:
‘6. The information referred to in paragraph 5 shall be submitted in a computerised form and in accordance with the “Biennial Report Format” issued by the Secretariat of the Convention and as amended by the Commission, before 15 June each second year and shall correspond to the two-year period ending on 31st December of the previous year.’;
20.
in Article 71, the title is replaced by the following:
‘Article 71
Rejection of applications for import permits following the establishment of restrictions’;
21.
Annex VIII is replaced by the text in Annex I to this Regulation;
22.
Annex X is replaced by the text in Annex II to this Regulation.
Article 2
This Regulation shall enter into force on the 20th day following 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.
Done at Brussels, 4 February 2008.