Proposal for a Regulation of the European Parliament and of the Council of amending Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein as regards the implementing powers conferred on the Commission - Adaptation to the regulatory procedure with scrutiny
Date: 2008-02-26
Institutions: European Commission
Subjects: European Commission, drafting of EU law, export monitoring, marketing, power of implementation, protected species, protection of animal life, protection of plant life, trade restriction

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 26.2.2008 
COM(2008) 104 final 

2008/0042 (COD) 

Adaptation to the regulatory procedure with scrutiny  

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

of  

amending Regulation (EC) No 338/97 on the protection of species of wild fauna and flora 
by regulating trade therein as regards the implementing powers conferred on the 
Commission 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1 

Reform of the committee procedures 

Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise 
of  implementing  powers  conferred  on  the  Commission1  was  amended  by  Council 
Decision 2006/512/EC of 17 July 20062. 

Article 5a of the amended Decision 1999/468/EC introduced a new regulatory procedure with 
scrutiny for measures of general scope designed to amend non-essential elements of a basic 
instrument adopted in accordance with the procedure referred to in Article 251 of the Treaty, 
including  by  deleting  some  of  those  elements  or  by  supplementing  the  instrument  by  the 
addition of new non-essential elements. 

1.2.  Priority alignment and general alignment 

In  a  joint  statement3,  Parliament,  the  Council  and  the  Commission  listed  a  number  of  basic 
instruments that should be adapted to the amended Decision as a matter of urgency in order to 
incorporate  the  new  regulatory  procedure  with  scrutiny  (priority  alignment).  For  the 
regulatory procedure with scrutiny to be applicable to the other instruments adopted under the 
codecision  procedure  and  already  in  force  at  the  time  when  Decision  2006/512/EC  took 
effect, the joint statement also calls for the adaptation of these instruments, in accordance with 
the applicable procedures (general alignment). 

The Commission has undertaken to examine all these instruments, with a view to submitting, 
by  the  end  of  2007,  legislative  proposals  to  adapt  them,  if  necessary,  to  the  new  regulatory 
procedure with scrutiny4. 

1.3.  Method used 

As  mentioned  in  the  Commission’s  Communication  to  the  European  Parliament  and  the 
Council of 23 November 20075, the Commission has carefully examined all the instruments 
adopted  by  codecision  in  order  to  identify  those  which  permit  the  Commission  to  adopt 
measures of general scope designed to amend non-essential elements of the basic instrument 
in  question.  The  Commission  has  identified  more  than  200  instruments  that  require 
adaptation. 

Some  of  these  instruments  come  under  the  Commission’s  codification  programme:  for 
example,  Council  Regulation  (EC)  No 338/97  of  9 December 1996  on  the  protection  of 
species of wild fauna and flora by regulating trade therein. Adaptation to the new procedure 
should  take  place,  depending  on  how  far  the  codification  process  has  progressed,  either  by 
recasting the codified proposal or, as in the present case, by legislative amendment. 

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OJ L 184, 17.7.1999, p. 23. 
OJ L 200, 22.7.2006, p. 11. 
OJ C 255, 21.10.2006, p. 1. 
PE 376.314v01-00 – A6-0236/2006 (Commission declaration annexed to Parliament’s report)  
COM(2007) 740 final 

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2. 

LEGAL ELEMENTS OF THE PROPOSAL 

The  purpose  of  adaptation  is  to  incorporate  the  regulatory  procedure  with  scrutiny,  as 
provided for in Article 5a of amended Decision 1999/468/EC.  

In particular, the following articles, foreseeing adoption of measures that are of general scope 
and are designed to amend non-essential elements of Regulation (EC) No 338/97, inter alia by 
supplementing  it,  shall  be  adjusted  to  the  regulatory  procedure  with  scrutiny:  Article  4(7), 
Article  5(5),  Article  7(1)(c),  Article  7(2)(c),  Article  7(3),  Article  8(4),  Article  9(6),  Article 
11(5), Article 12(4), Article 19(2), Article 19(3), Article 19(4) and Article 19(5). 

Where it appears justified particularly in the light of the nature of the measures envisaged, the 
adaptation shall also contain provisions relating to the curtailment of the time limits normally 
applicable  in  the  context  of  the  regulatory  procedure  with  scrutiny,  in  accordance  with 
paragraph 5 of the aforesaid Article 5a. 

In  particular,  on  grounds  of  efficiency,  the  normal  time-limits  for  the  regulatory  procedure 
with  scrutiny  should  be  curtailed  for  the  adoption  of  measures,  referred  to  in  Article  19(3), 
that amend Annexes A to D. 

It  is  also  necessary  to  specify  a  reference  to  the  regulatory  procedure  referred  to  in  Article 
18(2) in the comitology provisions that are not to be aligned to the regulatory procedure with 
scrutiny. This concerns Articles 4(6), 5(7)(b), 7(4), 15(4)(a), 15(4)(c), 15(5), 19(1) and 21(3). 

Article 18 should be amended to introduce a reference to Article 5a of Decision 1999/468/EC.  

Since  the  basic  instrument  is  a  Regulation,  it  must  be  adapted  by  means  of  an  equivalent 
instrument.  

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2008/0042 (COD) 

Adaptation to the regulatory procedure with scrutiny  

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EC) No 338/97 on the protection of species of wild fauna and flora 
by regulating trade therein as regards the implementing powers conferred on the 
Commission 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Article 175(1) thereof, 

Having regard to the proposal from the Commission6, 

Having regard to the opinion of the European Economic and Social Committee7, 

Having regard to the opinion of the Committee of the Regions8, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty9, 

Whereas: 

(1) 

(2) 

Regulation  (EC)  No  338/9710  provides  that  certain  measures  are  to  be  adopted  in 
accordance  with  Council  Decision  1999/468/EC  of  28  June  1999  laying  down  the 
procedures for the exercise of implementing powers conferred on the Commission11. 

Decision 1999/468/EC has been amended by Decision 2006/512/EC, which introduced 
a regulatory procedure with scrutiny for measures of general scope designed to amend 
non-essential elements of a basic instrument adopted in accordance with the procedure 
referred to in Article 251 of the Treaty, including by deleting some of those elements 
or by supplementing the instrument by the addition of new non-essential elements. 

(3) 

In accordance with the joint statement of the European Parliament, the Council and the 
Commission12  on  Decision  2006/512/EC,  for  this  new  procedure  to  be  applicable  to 

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OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ  L  61,  3.3.1997,  p.  1.  Regulation  as  last  amended  by  Regulation  (EC)  No  1882/2003  (OJ  L  284, 
31.10.2003, p. 1) 
OJ  L  184,  17.7.1999,  p.  23.  Decision  as  amended  by  Decision  2006/512/EC  (OJ  L  200,  22.7.2006, 
p. 11). 
OJ C 255, 21.10.2006, p. 1. 

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(4) 

instruments adopted in accordance with the procedure laid down in Article 251 of the 
Treaty  which  are  already  in  force,  those  instruments  must  be  adjusted  in  accordance 
with the applicable procedures. 

As  regards  Regulation  (EC)  No  338/97,  power  should  be  conferred  on  the 
Commission  in  particular  to  grant  derogations  from  completion  of  the  checks  and 
presentations  of  import  documents  at  the  border  customs  office  at  the  point  of 
introduction for special cases of transhipment, air transfer or rail transport; to establish 
procedures  for  consultation  between  management  authorities  prior  to  the  issuance  of 
re-export  certificates  and  the  cases  in  which  consultation  is  necessary;  to  specify 
criteria  for  determining  whether  a  specimen  has  been  born  and  bred  in  captivity, 
artificially propagated and whether for commercial purposes and special conditions for 
waving provisions of Articles 4 and 5 in the case of artificially propagated plants; to 
establish  conditions  for  retrospective  submission  of  documents  referred  to  in  Article 
7(2)(b); to specify provisions whereby the provisions of Article 4 and 5 shall not apply 
to personal and household effects being introduced into the Community or exported or 
re-exported  therefrom;  to  define  derogations  referred  to  in  Article  8(4);  to  establish 
restrictions  on  the  holding  or  movement  of  live  specimens  or  species  subject  to 
restrictions in accordance with Article 4(6); to establish time-limits for the issuance of 
permits and certificates; to establish criteria for a management authority to authorize 
the  introduction  into  the  Community  or  the  export  or  re-export  of  specimens  at  a 
customs office other than one designated in accordance with Article 12(1); to establish 
uniform conditions and criteria as referred to in Article 19(1); to amend Annexes A to 
D;  to  adopt  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.  Since  those 
measures  are  of  general  scope  and  are  designed  to  amend  non-essential  elements  of 
Regulation (EC) No 338/97 and to supplement it by the addition of new non-essential 
elements,  they  should  be  adopted  in  accordance  with  the  regulatory  procedure  with 
scrutiny provided for in Article 5a of Decision 1999/468/EC. 

(5) 

On  grounds  of  efficiency,  the  normal  time-limits  for  the  regulatory  procedure  with 
scrutiny should be curtailed for the adoption of measures amending Annexes A to D in 
accordance with Article 19(3), in order to comply with the deadline for entry into force 
of  amendments  to  the  Appendices  to  the  Convention  adopted  at  meetings  of 
Conferences  to  the  Parties  to  the  Convention  and  to  ensure  that  the  provisions  of 
Article 3 are complied with. 

(6) 

Regulation (EC) No 338/97 should therefore be amended accordingly, 

HAVE ADOPTED THIS REGULATION 

Article 1 

Regulation (EC) No 338/97 is amended as follows: 

(1) 

Article 4 is amended as follows: 

(a) in paragraph 6, the introductory sentence is replaced by the following: 

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"6.  In  consultation  with  the  countries  of  origin  concerned,  in  accordance  with  the 
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:" 

(b) paragraph 7 is replaced by the following: 

"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)." 

(2) 

Article 5 is amended as follows: 

(a) paragraph 5 is replaced by the following: 

"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)." 

(b) in paragraph 7, point (b) is replaced by the following: 

"(b) 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 
procedure referred to in Article 18(2)." 

(3) 

Article 7 is amended as follows: 

(a) in paragraph 1, point (c) is replaced by the following: 

"(c)  The  criteria  for  determining  whether  a  specimen  has  been  born  and  bred  in 
captivity or artificially propagated and whether for commercial purposes, as well as 
the special conditions referred to in (b), 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)." 

(b) in paragraph 2, point (c) is replaced by the following: 

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"(c) If the document referred to in (b) 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 the conditions 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)." 

(c) paragraph 3 is replaced by the following: 

"3. Personal and household effects 

By way of derogation from Articles 4 and 5, the provisions therein 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 Community, or exported or 
re-exported  therefrom,  in  compliance  with  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)." 

(d) paragraph 4 is replaced by the following: 

"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 for which has been 
determined in accordance with the procedure referred to in Article 18(2) or a similar 
label issued or approved by a management authority of a third country." 

(4) 

In Article 8, paragraph 4 is replaced by the following: 

"4. General derogations from the prohibitions referred to in paragraph 1 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.  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).  Any  such 
derogations  must  be  in  accordance  with  the  requirements  of  other  Community 
legislation on the conservation of wild fauna and flora." 

(5) 

In Article 9, paragraph 6 is replaced by the following: 

"6. The Commission may establish restrictions on the holding or movement of live 
specimens  of  such  species  in  relation  to  which  restrictions  on  introduction  into  the 
Community 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)." 

(6) 

In Article 11, paragraph 5 is replaced by the following: 

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"5.  The  Commission  shall  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)." 

(7) 

In Article 12, paragraph 4 is replaced by the following: 

"4.  In  exceptional  cases  and  in  accordance  with  the  criteria  defined  by  the 
Commission,  a  management  authority  may  authorise  the  introduction  into  the 
Community or the export or re-export therefrom 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, relating to the definition of 
criteria  for  such  authorisations,  shall  be  adopted  in  accordance  with  the  regulatory 
procedure with scrutiny referred to in Article 18(3)." 

(8) 

Article 15 is amended as follows: 

(a) paragraph 4 is amended as follows: 

(i) in point (a), the last sentence is replaced by the following: 

"The  information  to  be  communicated  and  the  format  for  its  presentation  shall  be 
specified by the Commission in accordance with the procedure referred to in Article 
18(2)." 

(ii) in point (c), the last sentence is replaced by the following: 

"The  information  to  be  communicated  and  the  format  for  its  presentation  shall  be 
specified by the Commission in accordance with the procedure referred to in Article 
18(2)." 

(b) paragraph 5 is replaced by the following: 

"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 specify the information required, in accordance 
with the procedure referred to in Article 18(2)." 

(9) 

Article 18 is amended as follows: 

(a) Paragraph 3 is replaced by the following: 

"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." 

(b) Paragraph 4 is inserted: 

"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. 

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

(10) 

Article 19 is replaced by the following: 

"Article 19 

1.  In  accordance  with  the  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), 
Article 15(4) (a) and (c), Article 15(5) and Article 21(3). 

The Commission shall determine the design of the documents referred to in Articles 
4, 5, 7 (4) and 10 in accordance with the procedure referred to in Article 18(2). 

2. The Commission shall adopt the measures referred to in Article 4(7), Article 5(5), 
Article  7(1)(c),  (2)(c)  and  (3),  Article  8(4),  Article  9(6),  and  Article  11(5).  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 lay down uniform conditions and criteria for the following: 

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

(ii) the use of phytosanitary certificates referred to in Article 7(1)(b)(i);  

(iii)  the  establishment  of  procedures,  where  necessary,  for  marking  specimens  in 
order to facilitate identification and ensure enforcement of the provisions; 

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). 

4. The Commission shall adopt, where necessary, additional measures to implement 
resolutions  of  the  Conference  of  the  Parties  to  the  Convention,  decisions  or 
recommendations  of 
the  Convention  and 
the  Standing  Committee  of 
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). 

5. The Commission shall amend 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  regulatory  procedure  with  scrutiny 
referred to in Article 18(4)." 

(11) 

In Article 21, paragraph 3, the introductory sentence is replaced by the following: 

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"3.  Two  months  before  this  Regulation  is  implemented  the  Commission,  in 
accordance  with  the  procedure  laid  down  in  Article  18(2)  and  in  consultation  with 
the Scientific Review Group:" 

This Regulation shall enter into force on … 

Article 2 

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

Done at Brussels, […] 

For the European Parliament 
The President 
[…] 

For the Council 
The President 
[…] 

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