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Types Of Trade Law 2009 - Arthg 2009

Original Language Title: Artenhandelsgesetz 2009 – ArtHG 2009

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16. Federal Act on the Monitoring of Trade in specimens of wild fauna and flora species (Wild Fauna and Flora species 2009-ArtHG 2009)

The National Council has decided:

Definitions

§ 1. (1) This federal law provides for the implementation of Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein, OJ L 378, 31.12.1997, p. No. OJ L 61, 03.03.1997, p. 1, the implementing rules based on it and the implementation of Article 3 lit. g of Directive 2008 /99/EC on the protection of the environment through criminal law, OJ L 327, 28.9.2008 No. OJ L 328, 6.12.2008, p. 28.

(2) In the sense of this Federal Act means:

1.

"Regulation (EC) No 338/97": Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein, OJ L 378, 31.12.1997, p. No. OJ L 61, 03.03.1997, p. 1,

2.

"Implementing Regulation" means the detailed rules for the implementation of Regulation (EC) No 338/97 adopted by the comitology procedure pursuant to Article 19 of Regulation (EC) No 338/97; and

3.

"holder" means the person who has a copy within the meaning of Regulation (EC) No 338/97 or who exercises actual violence.

More stringent measures

§ 2. (1) The Federal Minister for Agriculture, Forestry, the Environment and Water Management has adopted, by means of a Regulation for the import and export of and other trade in specimens of species referred to in Regulation (EC) No 338/97, more stringent measures than in the case of of this Regulation, to the extent that:

1.

necessary for the fulfilment of obligations under the law of the European Union, or

2.

is required in the interests of maintaining a species or population, including its distribution area, and is directly applicable to the European Union's right to be applied.

(2) In so far as this is necessary under the legislation of the European Union, the Federal Minister for Agriculture, Forestry, the Environment and Water Management also has for trade in specimens other than those contained in Regulation (EC) No 338/97. to specify permit requirements, other restrictions and prohibitions.

Acquisition by inheritance or gift

§ 3. (1) If specimens which are subject to the scope of Article 3 (1) (Annex A) of Regulation (EC) No 338/97 are passed on by way of inheritance or gift, the new owner shall have this to the Federal Minister for Agriculture and Forestry, environment and water management.

(2) Obligations and collateral shall be applied to the new owner.

Notification duty

§ 4. For each customs clearance of live specimens covered by Regulation (EC) No 338/97 or by this Federal Act, the estimated time of arrival of the customs office responsible for the production of live specimens shall be indicated by of the type and number of animals and plants and their classification in the Annexes to Regulation (EC) No 338/97, at least 18 hours in advance.

Marking

§ 5. (1) In the case of the Federal Minister for Agriculture, Forestry, the Environment and Water Management, a central register shall be established on the registration codes issued for copies and the registration codes assigned to holdings, to the extent that this is achieved in order to achieve the The objectives of Regulation (EC) No 338/97 are required. Where the identification of specimens contains a registration code of a holding and possibly other specific elements, the registration in the central register may be limited to the registration code, provided that the attainment of the objectives of Regulation (EC) No 338/97 is not endangered and a traceability of the marking is ensured.

(2) The Federal Minister for Agriculture, Forestry, the Environment and Water Management has a regulation to designate those species for which identification is necessary in the case of import, export or transit, transport and trade. In addition, it has exceptions to the labelling requirement and to the methods of labelling to be applied to each species. In this context, consideration should be given to the state of the art of biological and veterinary research and to ensure that the respective method of labelling is the lowest possible intervention in terms of physical integrity and well-being of the species.

(3) This Regulation shall contain, in particular, provisions within the meaning of the Implementing Regulation relating to:

1.

the nature and nature of the label,

2.

the method and the date of labelling;

3.

the place of placement of the mark, and

4.

Form and content of the labelling protocol.

(4) The marking must be carried out by a person specially authorised by the law enforcement authority (§ 13 para. 1) in accordance with paragraph 5 above or by a veterinarian. The holder of the copy shall bear the costs of the marking and shall provide all necessary assistance. Where the marking method of the photographic documentation is applied, the marking shall be carried out in accordance with the Regulation referred to in paragraph 2 of the holder of the copy.

(5) To the extent that this is necessary in the interests of economic efficiency, expediency or economy, the law enforcement authority (§ 13 para. 1) has natural or legal persons who have sufficient veterinary or biological knowledge shall be reliable, the objectivity of which is beyond doubt, and where proper implementation of the marking is ensured, to enable the identification of certain groups of specimens to be carried out. The authorisation shall, where necessary, be bound by conditions, time limits and conditions which ensure proper implementation of the marking. The authorization shall be revoked if the conditions are no longer fulfilled. The scientific authority of the country in which the authorised person is to carry out or carries out its duties shall be heard before the authorisation or revocation of an authorisation or revocation is granted.

(6) On the implementation of the marking of live specimens, except in the case of photographic documentation, the holder of the copy shall draw up a labelling protocol. The marking protocol shall be confirmed by the person carrying out the marking. In the case of an application for a permit or issue of a certificate issued pursuant to Regulation (EC) No 338/97, the identification protocol shall be sent to the law enforcement authority for the purpose of including the data in the central register. The form and content of the labelling protocol shall be laid down in the Regulation referred to in paragraph 2.

Control and follow-up duties

§ 6. (1) To the extent that this is necessary for the purposes of enforcement and for the achievement of the objectives of this Federal Law, Regulation (EC) No 338/97 or the implementing Regulation, the authorities responsible for the enforcement of the law pursuant to § 13 (1), (3) and (4) shall be within the scope of the its powers and the experts appointed by them on a case-by-case basis, to enter and visit land and buildings, to hold means of transport, to open and inspect containers and means of transport, and to carry out checks.

(2) Persons who are held in custody shall enter, open and visit the buildings in accordance with Section 13 (1), (3) and (4) with the authorities responsible for the enforcement and the experts appointed by them on a case-by-case basis; Containers and means of transport shall be made possible. In addition, the persons mentioned shall provide all information necessary for the purposes of enforcement, provide documents and provide an insight into the records of the inventory and the other records, to the extent that all of this is necessary. in order to examine the origin, the lawful acquisition or the whereabout of specimens. Where Regulation (EC) No 338/97 and the Implementing Regulation require proof-of-duty for holders of specimens or applicants, such proof shall be entrusted with full education at the request of the person concerned in accordance with Article 13 (1), (3) and (4). to provide the authorities accordingly. The persons referred to above shall, in particular, have the origin, the lawful acquisition and also the relevant conditions for the use of facilities and exemptions provided for in Regulation (EC) No 338/97 and the implementing Regulation. Require the authorities responsible for the enforcement in accordance with § 13 (1), (3) and (4) to prove accordingly.

(3) Withdrawn customs official signs shall be replaced by appropriate official registration marks. The owner of the property or persons entitled to dispose of the property, or the farmer or the representative of such persons shall be notified in accordance with the law at the latest upon entry of the property or the holding. If the danger is in default and none of the above mentioned persons is attainable, then the subsequent communication is sufficient.

(4) For the purposes of the protection of evidence, the institutions entrusted with the enforcement of the law pursuant to § 13 (1), (3) and (4) shall, in the event of danger in default, be entitled to ensure for the time being specimens to which an act which is punishable in accordance with Section 7 relates. The institutions shall report without delay to the competent public prosecutor's office. Declares that the conditions of a freezing order in accordance with § 110 of the Criminal Procedure 1975 (StPO), Federal Law Gazette (BGBl). No 631/1975, the guarantee shall be repealed as soon as possible. In addition, the provisional guarantee shall not apply if six months have passed since the date of its release or if the court has decided on a request for seizure by a final decision. § 89 Financial Criminal Law (FinStrG), Federal Law Gazette (BGBl) is applicable for financial offences to be punished by administrative authorities. No 129/1958.

(5) The authorities responsible for the enforcement in accordance with § 13 (1), (3) and (4), as well as the experts commissioned by them in the individual case, shall have any unnecessarily required disturbance or disability, as well as any unnecessarily required Avoid endangering the specimens.

Judicial acts of criminal law

§ 7. (1) Anyone who has copies of a species subject to the scope of Article 3 (1) (Annex A) and (2) (Annex B) of Regulation (EC) No 338/97

1.

without the authorisation or certificate required under Articles 4 and 5 of Regulation (EC) No 338/97, or

2.

contrary to a public authority issued in accordance with the provisions of this Federal Law or in Articles 4 to 7 and 11 of Regulation (EC) No 338/97

, shall be punished by the court with a custodial sentence of up to two years, or a fine of up to 360 daily rates, by the court.

(2) It is also necessary to punish those who, contrary to Article 8 of Regulation (EC) No 338/97, specimens of a species subject to the scope of Article 3 (1) (Annex A) and (2) (Annex B) of Regulation (EC) No 338/97

1.

buy, buy, buy or buy otherwise,

2.

be displayed, held in stock, transported or otherwise used, or

3.

is sold or sold for sale.

(3) It is also necessary to punish those who, contrary to Article 9 of Regulation (EC) No 338/97, carry copies of a species subject to the scope of Article 3 (1) (Annex A).

(4) Anyone who commits an offence pursuant to para. 1 to 3 has, within the last twelve months, been legally convicted at least on account of two such acts and acted on the intention of continuing to commit himself, through its recurrent commission, to a continuing offence. Taking the dose is punishable by the court with a custodial sentence of up to five years.

(5) Anyone who is grossly negligent in committing any of the acts referred to in paragraphs 1 to 3 shall be punished by the court with a custodial sentence of up to one year or a fine of up to 180 daily rates.

(6) In those cases where the act affects an insignificant quantity of these specimens and has an insignificant effect on the state of conservation of the species, there is no judicial incrimination as provided for in paragraphs 1 to 5; such cases shall be subject to the conditions laid down in the § 8 as administrative financial offences punishable by law. The Federal Minister for Agriculture, Forestry, the Environment and Water Management, in agreement with the Federal Minister for Justice and the Federal Minister of Finance, has decreed that the quantity of copies and the impact on the the conservation status of the species closer to the species.

(7) The specimens forming the subject of the offence, together with the objects used for their storage, safekeeping or care, shall be drawn in and the Federal Ministry for Agriculture, Forestry, the Environment and Water Management shall be responsible for the Implementation of the further procedure in accordance with § 11.

(8) The courts and prosecutors may, in pursuit of the offence referred to in paragraphs 1 to 5, take advantage of the customs authorities. Moreover, § 196 of the Financial Criminal Law (FinStrG) is to be applied in a reasonable way.

(9) The main proceedings for the offences referred to in paragraph 4 are the responsibility of the regional court (§ 31 paragraph 4 Z 3 StPO).

Administrative administrative procedures to be punished

§ 8. (1) Who intentionally

1.

a copy of a species subject to the scope of Article 3 of Regulation (EC) No 338/97 shall be introduced, carried out, re-executed or carried out in breach of this Federal Law or in Articles 4, 5, 7 or 11 of Regulation (EC) No 338/97; or

2.

by incorrect or incomplete information, an authorisation or certificate required under this Federal Act or in accordance with Articles 4, 5, 7, 8, 9, 10 or 11 of Regulation (EC) No 338/97, or the existence of the freedom of approval predeceives or

3.

in breach of Article 6 (3), in respect of Articles 8 or 9 of Regulation (EC) No 338/97, or against Article 3 (1) or Article 6 (2) of that Federal Act, or

4.

is in breach of a regulation in accordance with § 2 or § 5 of this Federal Act; or

5.

is contrary to the labelling requirements laid down in the implementing Regulation or to the notification of authorisation; or

6.

in violation of the Federal Act pursuant to Section 15 (3),

shall be subject to a financial offence and shall be subject to financial penalties of up to EUR 20 000, provided, however, that a copy of a species subject to the scope of Article 3 (1) (Annex A) of Regulation (EC) No 338/97 is concerned, with Fines of up to € 40 000, to be punished.

(2) Anyone who commits a financial offence pursuant to paragraph 1 and has committed, within the last two years, at least two such financial offences, and has acted in the intention of continuing to take a continuing intake through their recurrent observation, , a fine of up to EUR 40 000, provided that a copy of a species covered by Article 3 (1) (Annex A) of Regulation (EC) No 338/97 is affected, with a fine of up to EUR 80 000, shall be punished.

(3) Anyone who is grossly negligent in committing one of the offences referred to in paragraph 1 shall be liable to a fine of up to EUR 10 000 from the financial criminal authority, provided that a copy of one of the scope of Article 3 (1) (Annex A) of Regulation (EC) No 338/97 , but punishable by a fine of up to EUR 20 000.

(4) The provisions on penal punishment in the event of relapse pursuant to Section 41 of the FinStrG shall apply to the financial transactions referred to in paragraphs 1 and 2, subject to the proviso that the relapse shall only apply to: that relates to these facts.

(5) A financial irregularities shall be committed as to who intentionally

1.

is in breach of § 4 or

2.

Those who, contrary to the provisions of the Implementing Regulation, do not immediately send back any unused or no longer valid authorisations or certificates.

The financial regulation will be punishable by a fine of up to EUR 1 000.

(6) The perpetrator shall not be punished in accordance with paragraphs 1 to 3 if the crime constitutes the offence of a criminal offence which falls within the jurisdiction of the courts or is otherwise threatened with a more stringent sentence after another provision.

(7) In addition to the penalties referred to in paragraphs 1 and 2 above, it shall be recognized in accordance with § 17 of the FinStrG, whereby only the specimens forming the subject of the offence, together with the ones for their storage, safekeeping or care, shall be recognized. shall be subject to decay. In case of decay, it can also be recognized if paragraphs 1 and 2 are inapplicable only because the act is threatened with a more stringent penalty after another provision.

(8) The application of § 25 FinStrG is excluded.

Simplified order

§ 9. (1) With a simplified sentence, the customs offices may, in accordance with § 146 of the FinStrG, be entitled to:

1.

Financial irregularities in accordance with § 8 (4) and

2.

Financial vergoes according to § 8 (1) and (3), if

a)

Specimens of a species subject to the scope of Article 3 (1) (Annex A) and (2) (Annex B) of Regulation (EC) No 338/97, and which do not exceed EUR 3 000, or

b)

Specimens of a species subject to the scope of Article 3 (3) (Annex C) or (4) (Annex D) to Regulation (EC) No 338/97 are concerned;

and punish them with a fine of up to € 1 450. In addition to the sentence mentioned above, it is possible to detect decay.

(2) If a person has committed financial offences within the meaning of paragraph 1 and other financial offences in accordance with § 8 and minor financial offences within the meaning of § 146 FinStrG by the same act, then with the consent of the accused person, all financial offences may be carried out by simplified order according to § 146 FinStrG. The maximum amount of the fine provided for in Section 146 (1) of the FinStrG can be exceeded by half.

Seizure

§ 10. Where specimens of a species subject to the scope of Article 3 of Regulation (EC) No 338/97 are to be placed on a point of entry without a valid authorisation or certificate required by Regulation (EC) No 338/97 into the Community , and shall not be subject to any act punishable in accordance with § 7 or a financial offence pursuant to § 8, the copies shall be:

1.

in the case of unused expiry of the period referred to in Article 49 of the Code, or

2.

before the expiry of the time limit laid down in Article 49 of the Code, if the specimens are likely to be expunged or threatened to be spoil

without prejudice to the provisions of Article 16 (4) of Regulation (EC) No 338/97, to be seized in accordance with Article 29 (3) of the Customs Law implementing law. The seizure is to be reported immediately to the Federal Minister for Agriculture, Forestry, Environment and Water Management for the purpose of carrying out the proceedings pursuant to Section 11 (2).

Treatment retracted, for lapsed or seized copies

§ 11. (1) If a copy is withdrawn pursuant to Section 7 (5) or is declared forfeited in accordance with Section 8 (6) or § 9 (1), the Federal Minister for Agriculture, Forestry, Environment and Water Management shall at the expense of the person committing the offence to take action under Article 16 (3) and (4) of Regulation (EC) No 338/97.

(2) If a copy is confiscated in accordance with § 10, this shall be exempted, except in the case of an issue of documents relating to the import, export or re-export, which is retroactive in accordance with the implementing regulation, by the Federal Minister for Land and Forestry, the environment and water management. The Federal Minister for Agriculture, Forestry, the Environment and Water Management shall, at the expense of the person who has introduced the specimen into the Community, take action under Article 16 (3) and (4) of Regulation (EC) No 338/97.

(3) It is not possible to agree with the exporting country on the withdrawal of the copy pursuant to Art. 16 para. 3 lit. b Regulation (EC) No 338/97, the person who committed the offence pursuant to Article 7 (5) or the financial offence pursuant to Article 8 (6) or Section 9 (1) or the specimen seized in accordance with § 10 shall have to be made into the Community , the Republic of Austria, in addition to the costs referred to in paragraphs 1 and 2, has introduced the total expenditure incurred by the importation into the Community and all the costs arising therefrom, in particular the costs of reappraisal for the prevention of the To replace the introduction of plant diseases and harmful organisms from the title of the compensation.

Entry and exit points

§ 12. The Federal Minister of Finance, by Regulation, has to appoint the customs authorities pursuant to Article 12 (1) of Regulation (EC) No 338/97.

Authorities, responsibilities

§ 13. (1) Enforcement authority in the sense of the nature. IX of the Convention and of Art. 13 (1) (lit). (a) Regulation (EC) No 338/97 is the Federal Minister for Agriculture, Forestry, the Environment and Water Management.

(2) Applications for the issuing of authorisations and certificates pursuant to this Federal Act shall be submitted to the Federal Minister for Agriculture, Forestry, the Environment and Water Management, using the forms provided for in the Implementing Regulation.

(3) As a scientific authority in the sense of the nature. Article 13 (2) of the Convention and Article 13 (2) of Regulation (EC) No 338/97 are to be considered as eligible under the national provisions.

(4) The monitoring of compliance with the provisions referred to in § 1 Z 1 and 2 as well as this federal law and the investigation in the event of violations are without prejudice to § 6 (1) of the customs law implementing law duties of the customs administration, provided that they are The provisions of this Federal Act do not provide otherwise.

(5) In the cases referred to in paragraph 4

1.

shall be subject to customs supervision in accordance with the provisions of Section C of the Customs Law Implementing Act (Customs R-DG), BGBl. No 659/1994, unless specific rules are laid down in this Federal Law or in the provisions of Section 1 (1) (1) and (2) of this Act,

2.

the specimens shall be subject to customs supervision in accordance with Section 17 of the Customs R-DG and

3.

the customs authorities and the customs authorities shall apply the customs legislation (Article 2 (1) of the Customs R-DG).

(6) In order to carry out the financial penalty procedure for the financial offences and financial irregularities referred to in § 8, the provisions of Section 58 (1) (1) of the Financial Regulation are applicable. a FinStrG, if these financial offences have been committed or discovered in their area.

(7) In the interest of a purposeful, rapid, simple and cost-saving administration, the competent authorities in accordance with this law, in so far as this is necessary for the purposes of enforcement under this law, shall be the competent authorities of the district administrative authorities according to § 25. Animal Protection Act, BGBl. I n ° 118/2004 concerning the keeping of wild animals which have particular demands on the position to be taken.

Enforcement

§ 14. (1) With the enforcement of this Federal Act, Regulation (EC) No 338/97 and the Implementing Regulation, the Federal Minister for Agriculture, Forestry, the Environment and Water Management is responsible, provided that the following paragraphs do not otherwise .

(2) The Federal Minister of Finance is responsible for the enforcement of § § 8, 9, 10, 12 and 13 (4) and (5).

(3) The enforcement of § 6 (1) and (2), (4) and (5) shall be the responsibility of the Federal Minister of Agriculture, Forestry, Environment and Water Management, or the Federal Minister of Finance, depending on the responsibility.

(4) The Federal Minister of Justice is responsible for the enforcement of § 7.

(5) The Federal Minister for Agriculture, Forestry, the Environment and Water Management is entrusted with the enforcement of Article 12 (4) and (5) of Regulation (EC) No 338/97 in agreement with the Federal Minister for Finance.

Entry into force, external force and transitional provisions

§ 15. (1) This federal law shall take place on 1 January 2008. Jänner 2010 in force. With the entry into force of this federal law, the ArtHG 1998, BGBl. I No 33/1998, as last amended by BGBl. I No 29/2006, except for force.

(2) § § 8 and 9 ArtHG 1998 shall apply further to criminal acts committed prior to the entry into force of this Federal Act.

(3) Until the release of a regulation in accordance with § 2 of this Federal Act, the regulation of the Federal Minister of Economics and Labour concerning a ban on imports of skins of certain young seals and goods from them, BGBl. N ° 248/1996, as last amended by the Federal Law BGBl. I n ° 33/1998, as federal law.

(4) Until the release of a regulation in accordance with Article 12 of this Federal Act in conjunction with Article 12 (1) of Regulation (EC) No 338/97, the Regulation of the Federal Minister of Finance concerning the determination of customs offices in which specimens, Parts or products of endangered species, free-living animals and plants may be imported from and imported, BGBl. No. 196/1982, as last amended by the Federal Law BGBl. I n ° 33/1998, as federal law.

References and linguistic equality

§ 16. (1) Where reference is made in this Federal Act to provisions in other federal laws or in directly applicable law of the European Community, these are to be applied in their respectively applicable version.

(2) In so far as personal names are only mentioned in male form in this Federal Act, they relate to women and men in the same way. The gender-specific form is to be used in the application to certain persons.

Fischer

Faymann