21.5.2009 EN Official Journal of the European Union L 126/5
REGULATION (EC) No 398/2009 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 23 April 2009
amending Council 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 Commission,
Having regard to the opinion of the European Economic and Social Committee (1),
After consulting the Committee of the Regions,
Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),
Whereas:
(1) Regulation (EC) No 338/97 (3) 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 Commission (4).
(2) Decision 1999/468/EC has been amended by Decision 2006/512/EC (5), which introduced the regulatory procedure with scrutiny for the adoption of measures of general scope designed to amend non-essential elements of a basic instrument adopted in accordance with the procedure laid down in Article 251 of the Treaty, inter alia by deleting some of those elements or by supplementing the instrument with new non-essential elements.
(3) In accordance with the statement by the European Parliament, the Council and the Commission (6) concerning Decision 2006/512/EC, for the regulatory procedure with scrutiny to be applicable to 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.
(4) In particular, the Commission should be empowered to adopt certain measures regulating trade in species of wild fauna and flora, to adopt certain amendments to the Annexes to Regulation (EC) No 338/97 and to adopt additional measures to implement resolutions of the Conference of the Parties to the Convention on international trade in endangered species of wild fauna and flora (CITES) (hereinafter referred to as ‘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, inter alia by supplementing it with new non-essential elements, they must 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 the Annexes to Regulation (EC) No 338/97, in order to comply with the deadline for entry into force of amendments to the Appendices to the Convention.
(6) Regulation (EC) No 338/97 should therefore be amended accordingly,
Amendments
Regulation (EC) No 338/97 is hereby amended as follows:
1. Article 4 shall be amended as follows:
(a) in paragraph 6, the introductory sentence shall be replaced by the following:
(b) paragraph 7 shall be replaced by the following:
2. Article 5 shall be amended as follows:
(a) paragraph 5 shall be replaced by the following:
(b) in paragraph 7, point (b) shall be 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 regulatory procedure referred to in Article 18(2).’;
3. Article 7 shall be amended as follows:
(a) in paragraph 1, point (c) shall be 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) shall be replaced by the following:
‘(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) paragraphs 3 and 4 shall be replaced by the following:
4. in Article 8, paragraph 4 shall be replaced by the following:
5. in Article 9, paragraph 6 shall be replaced by the following:
6. in Article 11, paragraph 5 shall be replaced by the following:
7. in Article 12, paragraph 4 shall be replaced by the following:
8. Article 15 shall be amended as follows:
(a) paragraph 4 shall be amended as follows:
(i) in point (a), the last sentence shall be replaced by the following:
(ii) in point (c), the last sentence shall be replaced by the following:
(b) paragraph 5 shall be replaced by the following:
9. Article 18 shall be amended as follows:
(a) paragraph 3 shall be replaced by the following:
(b) the following paragraph shall be added:
10. Article 19 shall be replaced by the following:
(a) the issue, validity and use of the documents referred to in Articles 4, 5, 7(4) and 10;
(b) the use of phytosanitary certificates referred to in Article 7(1)(b)(i);
(c) the establishment of procedures, where necessary, for marking specimens in order to facilitate identification and ensure enforcement of the provisions.
11. in Article 21(3), the introductory sentence shall be replaced by the following:
Entry into force
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.