TRADE IN SPECIES OF FAUNA AND FLORA REGULATIONS

SUBSIDIARY LEGISLATION 549.38

TRADE IN SPECIES OF FAUNA AND FLORA

REGULATIONS

30th April, 2004

LEGAL NOTICE 236 of 2004, as amended by Legal Notice 426 of 2007.

The title of these regulations is the Trade in Species of

Fauna and Flora Regulations.

(1)

In these regulations, unless the context otherwise

requires

"the Act" means the Environment Protection Act;

"the Community" means the Community established by the

Treaty establishing the European Community;

"import" means introduce into the Community;

"Principal Regulation" means Council Regulation (EC) No. 338/

97 * on the protection of species of wild fauna and flora by

regulating trade therein;

"Subsidiary Regulation" means Commission Regulation (EC)

N0. 1808/2001 on the implementation of Council Regulation (EC)

No. 338/97 † on the protection of wild species of fauna and flora by

regulating trade therein;

"Convention" means the Convention on International Trade in

Endangered Species of Wild Fauna and Flora (Washington 1973);

"specimen" shall bear the definition used in the Principal

Regulation and shall also include any species, whether alive or

dead, any part or derivative thereof, as well as any goods which

appear from an accompanying document, the packaging, mark or

label or from other circumstances to be or to contain parts or

derivatives of animals or plants of those species the import, export,

re-export whereof or the possession thereof is prohibited, restricted

or controlled in accordance with the provisions of regulation 6.

(2) For the purposes of these regulations, references to a permit

or certificate are references to any of the following

(a) an import permit of the kind referred to in Article 4 of

the Principal Regulation;

(b) an export permit or re-export certificate of the kind

referred to in Article 5 of the Principal Regulation;

(c) a certificate of any of the kinds referred in Article 10

of the Principal Regulation;

(d) a certificate of the kind referred to in Article 18 of the

Subsidiary Regulation;

(e) a label of the kind referred to in Article 7(4) of the

*OJ No. L 61, 3.3.1997, p.1

†OJ No. L250, 19.9.2001, p.1

Principal Regulation;

(f)

in so far as, in accordance with Article 43 of the

Subsidiary Regulation, reliance may be placed on a

permit or certificate issued under Council Regulation

(EEC) No. 3626/82 * and Commission Regulation

(EEC) No. 3418/83 † .

(3) Unless the context otherwise requires, expressions used in

these regulations and which are also used in the Principal or

Subsidiary Regulations, shall have the meaning they bear in those

Regulations.

(1) The Environment and Resources Authority is

designated as the Management Authority for the purpose of Article

IX of the Convention and Article 13(1) of the Principal Regulation.

(2) The Management Authority shall have those rights listed in

the Act as well as the power to seize any specimen found in Malta.

(1) The Minister responsible for the Environment shall

appoint a Scientific Authority for the purposes of Article IX of the

Convention and Article 13(2) of the Principal Regulation.

(2) The Scientific Authority shall also advise the Minister on

the implementation of the Act in relation to the protection of

biodiversity.

Any person seeking to import, export, re-export any

specimen, even if it is not listed in the Annexes to the Principal

Regulation, shall apply in writing to the Management Authority on

forms made available for the purpose by that Authority.

(1) The Scientific Authority and the Management

Authority shall advise the Minister responsible for the Environment

to prohibit the import, export or re-export in or possession of any

species of fauna and flora if in their opinion, or in the opinion of

any of them, such import, export, re-export or possession would

endanger the biological identity or any ecosystem or any species of

fauna and flora of Malta.

(2) It is the responsibility of the person, who is seeking to

import or is in possession of any live specimen, to obtain the

necessary information from the Management Authority, in order to

establish whether such specimen is of any species referred to in

subregulation (1).

(3) The import of any species which is protected at the country

of origin, even if it not listed in the Annexes to the Principal

Regulation, and even if that country of origin is not a party to the

Convention, shall require an export authorization from that country.

Any person who has in his possession any specimen the

import of which is subject to these regulations shall retain in his

possession and for such time as that specimen remains in his

*OJ No. L 384, 31.12.82, p.1

†OJ No. L344, 7.12.83, p.1

possession, all permits, certificates and licences relative to the

import of that specimen.

(1)

Any person who shall -

(a) import into or export or re-export from the Community

specimens without the appropriate permit or certificate

or with a false, falsified or invalid permit or certificate

or one altered without authorization by the issuing

authority; or

(b) fail to comply with the stipulations specified on a

permit or certificate used in accordance with the

Principal Regulation; or

(c) make false declarations or knowingly provide false

information in order to obtain a permit or certificate;

or

(d) use a false, falsified or invalid permit or certificate or

one altered without authorization as a basis for

obtaining a Community permit or certificate or for any

other official purpose in connection with the Principal

Regulation; or

(e) make no import notification or a false import

notification; or

(f)

ship live specimens not properly prepared so as to

minimize the risk of injury, damage to health or cruel

treatment; or

(g) use specimens of species listed in Annex A of the

Principal Regulation other than in accordance with the

authorization given at the time of issuance of the

import permit or subsequently; or

(h) trade in artificially propagated plants contrary to the

provisions laid down in accordance with Article

7(1)(b) of the Principal Regulation; or

(i)

ship specimens into or out of or in transit through the

territory of the Community without the appropriate

permit or certificate issued in accordance with the

Principal Regulation and, in the case of export or re-

export from a third country party to the Convention,

not in accordance therewith or without satisfactory

proof of the existence of such permit or certificate; or

(j)

purchase, offer to purchase, acquire for commercial

purposes, use for commercial gain, display to the

public for commercial purposes, sale, keep for sale,

offer for sale or transport for sale of specimens in

contravention of Article 8 of the Principal Regulation;

or

(k) make use of a permit or certificate for any specimen

other than one for which it was issued; or

(l)

falsify or alter any permit or certificate issued in

accordance with the Principal Regulation; or

(m) fail to disclose rejection of an application for a

Community, import, export or re-export permit or

certificate in accordance with Article 6(3) of the

Principal Regulation; or

(n) fail to apply in writing to the Management Authority

in accordance with regulation 5 of these regulations; or

(o) import, export, re-export in or possess any specimen of

any species in contravention of regulation 6; or

(p) fail to retain in his possession any permits, certificates

and licences in accordance with regulation 7,

shall be guilty of an offence against these regulations.

(2) Any person who commits an offence against these

regulations shall, on conviction be liable to a fine (multa) of not

less than four hundred and sixty-five euro and eighty-seven cents

(€465.87) but not exceeding four thousand and six hundred and

fifty-eight euro and seventy-five cents (€4,658.75) or to

imprisonment for a period of not less than one month but not

exceeding two years, or to both such fine (multa) or imprisonment.

(3) The provisions of article 28A of the Criminal Code and the

provisions of the Probation Act shall not be applicable in respect of

any offence against the provisions of these regulations.

(4) 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.

(5) Notwithstanding the provisions of article 370 of the

Criminal Code, the Court of Magistrates (Malta) and the Court of

Magistrates (Gozo), as the case may be, shall be competent to try

all offences against these regulations, and proceedings shall be

taken before the said courts and shall be in accordance with the

provisions of the said Code regulating the procedure before such

courts as Courts of Criminal Judicature.

(6) Notwithstanding the provision of the Criminal Code, the

Attorney General shall always have a right of appeal to the Court of

Criminal Appeal from any judgement given by the Courts of

Magistrates (Malta) or the Court of Magistrates (Gozo), in respect

of proceedings arising out of the provisions of these regulations.

(7) The court may give such orders it deems appropriate,

concerning the keeping, re-export or suppression of any specimen,

including interim measures during the pendency of any

proceedings, in conformity with the provisions of the Convention

and the Principal Regulation, and it may also order that the

expenses of such keeping, re-export or suppression be borne by the

person found guilty of an offence under these regulations.

Nothing in these regulations shall be deemed to affect any

provisions relating to civil damages in the Act.