Regulations, 2015

L.N. 79 of 2015

ENVIRONMENT AND DEVELOPMENT PLANNING ACT

(CAP. 504)

Timber and Timber Products (Placing on the Market)

Regulations, 2015

IN EXERCISE of the powers conferred by articles 61 and 62 of

the Environment and Development Planning Act, the Minister for

Sustainable Development, the Environment and Climate Change and

the Parliamentary Secretary for Planning and Simplification of

Administrative Processes, after consultation with the Malta

Environment and Planning Authority have made the following

regulations:-

The title of these regulations is the Timber and Timber Citation.

Products (Placing on the Market) Regulations, 2015.

These regulations provide for the implementation of the Scope.

provisions of Regulation (EU) No 995/2010 of the European

Parliament and of the Council of 20 October 2010 laying down the

obligations of operators who place timber and timber products on the

market as set out in the Annex thereof, as may be amended from time

to time, hereinafter referred to as "Regulation (EU) No 995/2010".

(1)

In these regulations, unless the context otherwise Interpretation.

requires

"authorized officer" means a person duly authorized by the

Director to carry out inspections and other functions related to the

enforcement and implementation of any provision of these

regulations;

"competent authority" means the Directorate of Agriculture;

"Director" means the Director of Agriculture and includes, to

the extent of the authority given, any officer authorized by him, in

writing, to act in that behalf for any of the purposes of these

regulations;

"the

Implementing

Regulation"

means

Commission

Implementing Regulation (EU) No 607/2012 of 6 July 2012 on

detailed rules concerning the due diligence system and the frequency

and nature of the checks on monitoring organizations as provided for

in Regulation (EU) No 995/2010 of the European Parliament and of

the Council laying down the obligations of operators who place

timber and timber products on the market;

"internal market" means the internal market of the European

Union;

"notice of remedial actions" means a notice served upon an

operator in accordance with regulation 7;

"operator" means any natural or legal person that places timber

or timber products on the EU market for the first time;

"person" means any person, whether natural or legal, corporate

or incorporate, and includes any person acting on his own behalf or

under the instructions of any employer, master or owner;

"timber" means timber and timber products, as set out in the

Annex to Regulation (EU) No. 995/2010.

(2) Unless the context otherwise requires, words and

expressions used in these regulations shall have the same meaning

assigned to them in Article 2 of Regulation (EU) No 995/2010.

(3) In the event that any of these regulations conflict with the

provisions of Regulation (EU) No 995/2010, the latter shall prevail.

The Directorate of Agriculture shall be the competent

authority for the purposes of

(a)

Regulation (EU) No 995/2010;

(b)

the Implementing Regulation; and

(c)

Commission Delegated Regulation (EU) No 363/

2012 of 23 February 2012 on the procedural rules for the

recognition and withdrawal of recognition of monitoring

organizations as provided for in the Regulation (EU) No 995/

2010 of the European Parliament and of the Council laying

down the obligations of operators who place timber and timber

products on the market.

(1) An operator shall permit any authorized officer, at

all reasonable times, for the purposes of carrying out his functions

under these regulations and upon production of identification

(a)

to enter into premises after giving prior notice

Provided that the requirement to give prior notice

does not apply in cases when efforts to arrange an appointment

have failed, or when such notice would defeat the purpose of the

entry, or where there is reasonable suspicion that an offence

against these regulations has been committed;

(b) stop and, or board any vehicle, vessel, aircraft or

other means of transport that the officer has reasonable grounds

to believe is transporting timber;

(c)

inspect the premises, any plant, machinery or

equipment, containers and timber found on the premises;

(d) have access to, examine and copy any

documentation, records or other information to which these

regulations may apply, in whatever form they are held, and

remove them to enable them to be copied or require computer

records to be produced in a form in which they may be easily

accessed and taken away by the officer;

(e)

take samples of any timber;

(f)

carry out any examination, investigation or test; and

(g)

take photographs, measurements or recordings.

(2) An operator shall provide all reasonable assistance to any

authorized officer acting in terms of sub-regulation (1) and in

particular shall

(a)

produce for inspection such document or record as

may be required by such authorized officer;

(b) make available for examination any timber as may

be required.

For the purposes of enforcing the provisions of these Assistance.

regulations, the Director may request the assistance of members of

the Police Force and of the Comptroller of Customs.

(1) Where the Director has reasonable cause to believe Notice of

that any person has contravened or failed to comply with any remedial

actions.

provision of Articles 4 and 5 of Regulation (EU) No 995/2010 and

Article 5 of the Implementing Regulation, the Director may serve in

writing a notice of remedial actions, on such person in accordance

with sub-regulation (2).

(2) A notice of remedial actions served in terms of sub-

regulation (1) shall specify

(a)

the nature of the offence;

(b) the facts upon which the allegation that an offence

has been committed is based;

(c)

the measures that, in the Director’s opinion, must be

taken in order to ensure compliance;

(d) the period within which any such measures must be

taken, as is reasonable in the circumstances.

(3) In addition to the notice of remedial actions, the Director

may, as an interim measure, prohibit the placing on the market of the

timber until the remedial actions as specified in the notice are carried

out

Provided that the grounds for taking such measures shall

be specified in the notice

Provided further that an authorized officer may mark the

timber subject to the notice of remedial actions in any way for

identification purposes.

(4) Any notice of remedial actions sent by the Director shall

be deemed to have been delivered and duly notified if it is physically

delivered or sent by registered post to the person at his place of

residence or business or place of work or postal address of such

person.

(1) Where any person fails to comply with a notice

served in accordance with regulation 7 within the time specified

therein, the Director may cause a notice in writing in accordance with

sub-regulation (2) to be served on that person.

(2) A notice under sub-regulation (1) shall specify

(a)

the date and nature of the offence;

(b) a summary of the facts upon which the allegation

that an offence has been committed is based (being a sufficient

summary fully and fairly to inform the person of the allegation

against him);

(c)

any other matter (not being previous convictions)

that the Director considers relevant to the imposition of a

penalty; and

(d)

the amount of the penalty due and, where the penalty

due depends on a previous conviction, the date of such

conviction,

and shall be endorsed on a statement setting out the provisions of this

regulation.

(3) Any person on whom a notice under sub-regulation (1) is

served may, within thirty days after such service, by notice in writing

served on the Director, require that proceedings in respect of the

alleged offence shall be dealt with by the Court, in which case the

following provisions shall apply

(a)

no further proceedings shall be taken under this

regulation by the Director; and

(b) nothing in this regulation shall be construed as

preventing the institution of any proceedings in respect of the

alleged offence or the conviction of the person for the offence

by the Court or the imposition of any penalty or forfeiture under

these regulations upon such conviction.

(4) Any person on whom a notice under sub-regulation (1) is

served who does not wish that proceedings in respect of the alleged

offence be dealt with by the Court may, within thirty days after such

service, by notice in writing served on the Director

(a)

admit the offence;

(b) pay the amount of the penalty to the Director within

thirty days after the penalty notice is served or after such

subsequent period as the Director may determine; and

(c)

take the necessary remedial actions to ensure

conformity with these regulations.

(5) Where under this regulation a person admits an offence,

the Director shall impose a monetary penalty on that person in respect

of the offence amounting to one-third of the maximum penalty to

which the person would be liable if he were convicted of the offence

by the Court.

(6) The penalty imposed under sub-regulation (5) shall be due

as civil debt enforceable by the competent Court of civil jurisdiction

in favour of the Government and the declaration by the person on

whom the penalty is imposed that he admits the charge shall

constitute an executive title for the purposes of article 253 of the

Code of Organization and Civil Procedure in the same manner as if it Cap. 12.

were a judgement of the competent Court of civil jurisdiction.

(7) Notwithstanding any other provision of these regulations

or of any other enactment, where an offence has been admitted under

this article no charge may be laid in respect of the offence against any

person by whom it has been admitted.

(8) Where a person on whom a notice under sub-regulation (1)

is served does not, within thirty days after the notice is served on him,

admit the offence, the Director shall institute proceedings or cause

proceedings to be instituted before the Court in respect of the alleged

offence.

(1) Any person shall be guilty of an offence under these

regulations if he

(a)

fails to comply with the prohibition on placing

illegally harvested timber on the market in accordance with

Article 4(1) of Regulation (EU) No 995/2010;

(b) fails to comply with the obligation to exercise due

diligence and maintain and regularly evaluate the due diligence

system in accordance with Articles 4(2) and (3) of Regulation

(EU) No 995/2010;

(c)

fails to comply with the obligation of traceability in

terms of Article 5 of Regulation (EU) No 995/2010;

(d) fails to comply with the record-keeping obligation in

accordance with Article 5 of the Implementing Regulation;

(e)

fails to comply or contravenes any provision of

these regulations or fails to comply with any order lawfully

given in terms of any provision of Regulation (EU) No 995/

2010, the Implementing Regulation or these regulations;

(f)

conspires or attempts, or aids, or abets, any other

person by whatever means, including advertising, counselling or

procurement to contravene the provisions of these regulations or

to fail to comply with any such provisions, including any order

lawfully given in terms of any of the provisions of these

regulations, or to contravene any restriction, prohibition or

requirement imposed by or under the said regulations;

(g) intentionally obstructs or causes the obstruction of

any person acting in the proper exercise of his functions under

these regulations and, or fails to allow an inspection authorized

under these regulations;

(h)

without reasonable cause, fails to give any person,

acting in the exercise of his functions under these regulations,

any assistance or information which he may be required to give

under these regulations or any other law, or gives false or

misleading information;

(i)

alters, forges, counterfeits or destroys any document

presented to or issued by the Director under these regulations.

(2) Any person who is found guilty of an offence against the

provisions of these regulations shall, on conviction, be liable

(a)

on a first conviction relating to sub-regulation

(1)(a), (b), (g), (h) and (i), to a fine (multa) of not less than two

thousand and five hundred euro (€2,500) but not exceeding

twenty-five thousand euro (€25,000);

(b) on a first conviction relating to sub-regulation

(1)(c), (d), (e) and (f), to a fine (multa) of not less than one

thousand and five hundred euro (€1,500) but not exceeding five

thousand euro (€5,000);

(c)

on a second or subsequent convictions, to a fine

(multa) of not less than two thousand and five hundred euro

(€2,500) but not exceeding fifty thousand euro (€50,000).

(3) Where any person is convicted of an offence against these

regulations, the Court may in addition to any other penalty that it may

impose

(a) order that the timber and any other goods or things

to which the offence relates be forfeited to the Government and

if so forfeited shall be disposed of in such a manner as the Court

may determine on the advice of the Director;

(b) suspend for a period as the Court may deem proper,

not being less than one month, any licence or permit held by the

offender and related to any trade or business to which the

offence relates;

(c)

impose an additional fine equivalent to the estimated

economic benefit which the convicted person derived from the

commission of the offence or would have derived had the

offence remained undetected; and

(d) sentence the offender to imprisonment for a term of

not less than thirty days and not exceeding two years.

(4) In respect of proceedings for any offence charged against

these regulations, the Court may award in favour of the Government

such costs and expenses incurred in relation to these proceedings as it

may deem proper.

In any proceedings for an offence under these regulations

consisting of a failure to comply with Articles 4 and 5 of Regulation

(EU) No 995/2010 and Article 5 of the Implementing Regulation, it

shall be for the accused to prove (as the case may be) that all the

necessary due diligence was in fact done to satisfy the duty or

requirement, or that there was no better practicable means than was in

fact used to satisfy the duty or requirement.

(1) The provisions of articles 23 and 30(1) of the

Criminal Code shall, mutatis mutandis, apply to proceedings in

respect of offences against these regulations, so however that the

disqualification from holding or obtaining a warrant, licence, permit

or authority shall in no case be less than one year.

(2) Notwithstanding the provisions of article 370 of the

Criminal Code, proceedings for an offence against these regulations

shall be held before the Court of Magistrates (Malta) or the Court of

Magistrates (Gozo), as the case may be, and shall be in accordance

with the provisions of the Criminal Code regulating the procedure

before the said courts as courts of criminal judicature.

€0.72