Vor

Section Five:

Protection and Management of Wild Fauna and Flora Species

Article 39
Tasks of Species Conservation

(1) The purpose of the provisions specified in this Section is to protect, conserve and manage the natural and historically evolved diversity of species of wild fauna and flora. Species conservation comprises the following tasks:

1.     The protection of fauna and flora species, as well as of their biocoenoses, from adverse human impacts.

2.     The protection, management, development and restoration of the biotopes of wild fauna and flora spe­cies and the safeguarding of their other life supports and living conditions. 3.          The introduction and establishment of displaced species of wild fauna and flora in appropriate biotopes within their natural area of distribution.

(2) The provisions of plant protection legislation, animal protection legislation, legislation on disease con­trol and livestock epidemics as well as forestry, hunting and fishing legislation shall remain unaffected by the provisions of this Section or rules and regulations laid down on the basis of and within the framework of the provisions of this Section. Where within the framework of hunting and fishing legislation no particular provisions relating to the protection, conservation and management of the species concerned exist or are laid down, the provisions of this Section and rules and regulations laid down on the basis of and within the framework of this Section shall be applicable without prejudice to the rights of those who are licensed un­der hunting and fishing law to practice hunting or fishing.

Article 40
General Provisions on the Conservation of Species and of their Biotopes (Natural Habitats)

(1) For preparing, executing and supervising the tasks under Article 39 paragraph 1, the Federal Laender shall take appropriate action

1.     to assess, describe, evaluate and validate populations, biocoenoses and biotopes of wild fauna and flora species of significance from the point of view of species conservation, including the species of Commu­nity interest, the ‘European bird species’ and the species that enjoy special protection or other species whose survival is endangered,

2.     to define and implement conservation, management and development objectives.

(2) To implement the conservation of species and their biotopes (natural habitats), the Federal Laender shall lay down further rules and regulations, in particular on the conservation of biotopes of wild fauna and flora species.

Article 41
General Protection of Wild Fauna and Flora

(1) The Federal Laender shall lay down rules and regulations for the protection of wild fauna and flora. In particular, compliance with the following requirements shall be assured thereby:

1.     not to wilfully disturb specimens of wild fauna, or to capture, injure or kill them without good cause,

2.     not to remove, without good cause, specimens of wild flora from their sites, or to use them, to fell them or to knock them down or destroy them in any other way,

3.     not to damage or destroy, without good cause, the habitats and sites of wild fauna and flora species,

where Article 42 paragraph 1 does not provide for more stringent protection.

(2) In compliance with Article 22 of Council Directive 92/43/EEC and Article 11 of Council Directive 79/409/EEC and Article 8, letter h of the Convention on Biological Diversity of 5 June 1992 (Federal Law Gazette 1993 II, page 1471), the Federal Laender shall take appropriate measures to preclude the risks in­volved in any adulteration of the fauna or flora of the Member States through the introduction, establishment and spread of non-native fauna or flora. They shall in particular lay down rules and regulations on permits that may be granted for the introduction of specimens

1.     of non-native species of fauna and

2.     non-native species of flora

in the wild. Any permit shall not be granted if the risk of adulterating the fauna or flora of the Member States, or any endangerment of the survival or abundance of wild fauna or flora species of the Member States, or of populations of such species, cannot be excluded. The following shall be exempt from the re­quirement to obtain a permit:

1.     Cropping in agriculture and forestry

2.     The introduction and use of specimens of

a)     native fauna species

b)     non-native fauna species, if their introduction and use requires authorization under plant protection legislation, taking account of the requirements of species conservation,

for biological methods of plant protection.

3.     The introduction of specimens of native fauna species that are subject to the provisions of hunting and fishing legislation.

(3) The Federal Laender may lay down further rules and regulations; in particular they may determine the requirements under which taking in the wild of specimens of wild fauna or flora not subject to special pro­tection, is admissible.

Article 42
Provisions for Specially Protected Fauna and Flora Species and Certain Other Fauna and Flora Species

(1) It is prohibited:

1.     to pursue, capture, injure or kill any wild specimen of specially protected fauna species, or to remove from the wild, damage, or destroy any forms of their life-cycle, their nesting or breeding sites, other liv­ing quarters or inhabited sites or any other places of refuge;

2.     to cut, pick, uproot or tear off, dig up, damage or destroy any wild specimen of specially protected flora species, or parts or morphological forms of development thereof;

3.     to disturb any wild specimen of strictly protected wild fauna species or ‘European bird species’ at their nesting or breeding sites, other living quarters or inhabited sites or any other places of refuge, by search­ing for them, photographing or filming them, or by any similar action;

4.     to impair or destroy the sites of strictly protected wild flora species by searching for such specimens, photographing or filming them, or by any similar action.

(2) It is furthermore prohibited:

1.     to gain possession of, or take in custody, have possession of or keep in custody, handle, work or process any specimen of specially protected fauna and flora species (prohibitions on possession);

2.     a) to sell, buy, offer for purposes of sale or purchase, keep in stock or transport for purposes of sale

b)     to acquire, display to the public or use in some other way for commercial purposes (prohibitions on marketing)

specimens of the specially protected fauna and flora species referred to in Article 10 paragraph 2 no 10 letters b and c. Article 9 of Council Regulation (EC) 338/97 remains unaffected.

(3) The prohibitions on possession and marketing shall also be applicable to

1.     goods covered by the Annex of Council Directive 83/129/EEC that, in contravention of Articles 1 and 3 of this Directive, entered the Community after 30 September 1983,

2.     fauna and flora species designated by way of Ordinance (Rechtsverordnung) pursuant to Article 52 paragraph 4.

Article 43
Exceptions and Exemptions

(1) Unless otherwise specified in an Ordinance (Rechtsverordnung) pursuant to Article 52 paragraph 5, the following shall be exempt from the prohibitions on possession:

1.     specimens of specially protected fauna or flora species that were legally a)           bred within the territory of the Community and have not become ownerless; produced through arti­ficial propagation, or taken in the wild; b) transferred into the Community from third countries;

2.     specimens of fauna or flora species referred to in Article 42 paragraph 3 no 2 that were legally acquired within the Community before inclusion of the species in an Ordinance (Rechtsverordnung) pursuant to Article 52 paragraph 4.

The first sentence no 1 letter b shall not apply to specimens of fauna and flora species referred to in Ar­ticle 10 paragraph 2 no 10 letter b that were directly transferred to the country, from a third country, without any exception authorization (Ausnahmegenehmigung) pursuant to paragraph 8, second sentence, or exemption (Befreiung) pursuant to Article 62, after 3 April 2002. In derogation of the second sen­tence, dead specimens of European bird species referred to in Article 10 paragraph 2 no 10 letters b sub­letter bb, provided that they are subject to hunting legislation in accordance with Article 2 paragraph 1 of the Federal Hunting Act (Bundesjagdgesetz), may be brought directly into the country from a third country as personal or household effects without requiring any exception authorization (Ausnah­megenehmigung) or exemption (Befreiung).

(2) Where, pursuant to paragraph 1 above, specimens of specially protected fauna or flora species are not subject to prohibitions on possession, they shall also be exempt from the prohibitions on marketing. With­out prejudice to any Ordinance (Rechtsverordnung) pursuant to Article 52 paragraph 5, this shall not apply to

1.     specimens of strictly protected fauna and flora species

2.     ‘European bird species‘

taken from the wild.

(3) In derogation of paragraph 2 second sentence, the following specimens shall be exempted from prohibi­tions on marketing:

1.     specimens of strictly protected fauna or flora species that were legally acquired before the date of their placing under protection as ‘species threatened with extinction’ or ‘strictly protected species’,

2.     specimens of ‘European bird species’ that were legally acquired before 6 April 1981 or that are listed in Annex III Part 1 of Council Directive 79/409/EEC,

3.     specimens of fauna or flora species under Council Directive 92/43/EEC and Council Directive 79/409/EEC that have been approved in a Member State, in compliance with the Council Directives, for actions referred to in Article 42 paragraph 2 first sentence no 2.

(4) The prohibitions specified in Article 42 paragraphs 1 and 2 shall not apply if the actions are associated with the use of land for agricultural, forestry and fishery purposes in the framework of and in line with the terms of good practice and in accordance with the requirements set forth in Article 5 paragraphs 4 to 6, and for recovery of the products obtained in this way, or in the case of an intervention that has been permitted pursuant to Article 19, or with an environmental impact assessment carried out in accordance with the Envi­ronmental Impact Assessment Act (Gesetz über die Umweltverträglichkeitsprüfung), or in the case of a measure that has been permitted in conformity with Article 30, as far as these actions do not imply any in­tentional impairment to specimens of specially protected fauna species, including their nesting and breeding sites, other living quarters or inhabited sites, or any other places of refuge, or to specimens of specially pro­tected flora species. More stringent protection provisions of the Federal Laender shall remain unaffected.

(5) In derogation of the prohibitions on possession and marketing, it is admissible, subject to relevant provi­sions of hunting and fishing legislation, to remove from the wild animals or plants that have been found dead, and to deliver them to the institution designated by the competent authority of the Federal Land con­cerned, or, provided they do not belong to the strictly protected species of fauna or flora, to use them for purposes of research or teaching or for preserving/ preparing them for such purposes.

(6) In derogation of the prohibitions specified in Article 42 paragraph 1 no 1 and of prohibitions on posses­sion, it is also admissible, subject to relevant provisions of hunting legislation, to take in injured, helpless or sick animals in order to restore them to health. Such specimens shall be released back into the wild without delay as soon as they are able to survive there without human assistance. In other cases, they shall be deliv­ered to the institution designated by the competent authority of the Federal Land concerned. In the case of specimens of strictly protected fauna species, the person who takes in the specimen shall notify the compe­tent authority of the Federal Land concerned of this fact. The competent authority of the Federal Land con­cerned may demand the surrender of the specimen in question.

(7) The competent authorities pursuant to Article 44 and Article 45 paragraph 1 or pursuant to the legisla­tion of the Federal Land concerned may grant exceptions to the prohibitions on possession or marketing, where this is necessary for the utilization of confiscated or impounded specimens of fauna or flora and does not conflict with legal instruments of the European Communities.

(8) Further exceptions to the prohibitions specified in Article 42 may be granted by the competent authori­ties of the Federal Land concerned where this is necessary for any of the following reasons:

1.     to avert significant damage in the sectors of agriculture, forestry, fishery, water management or other public-benefit sectors;

2.     to protect native fauna and flora, or

3.     for purposes of research, teaching, re-introduction, or for measures of breeding or artificial propagation that support such purposes.

In cases of transfer from third countries, the Federal Agency for Nature Conservation may in individual cases grant further exceptions to the prohibitions specified in Article 42, in order to enable reasonable use, under controlled conditions, of specimens of certain fauna and flora species under Article 10 paragraph 2 no 10 letter b, and of bred or artificially propagated specimens of such species. Exceptions pursuant to the first and second sentences of this paragraph may only be granted where this does not imply adverse effects on the survival and abundance of the population or species concerned, where this is in compliance with Article 16 paragraph 1 of Council Directive 92/43/EEC and Article 9 paragraphs 1 and 2 of Council Directive 79/409/EEC and where this is not in conflict with the provisions of any Ordinance pursuant to Article 52 paragraph 5, or with other species conservation interests, or obligations arising from international conven­tions relating to species conservation. The Governments of the Federal Laender may generally permit the exceptions referred to in the first sentence above, by way of ordinance (Rechtsverordnung), provided that the fauna and flora species concerned do not belong to the strictly protected species. The Governments of the Federal Laender may transfer their authority pursuant to the third sentence above to other Land authori­ties, by way of ordinance (Rechtsverordnung).

Article 44 Competencies

(1) The following authorities shall act as the management authorities referred to in Article 13 paragraph 1 of Council Regulation (EC) No 338/97 and of Article IX of the Convention on International Trade in En­dangered Species of Wild Fauna and Flora:

1.     The Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, with respect to dealings with other Parties to the Convention and with the Secretariat (Article IX paragraph 2 of the Convention on International Trade in Endangered Species of Wild Fauna and Flora), with the exception of the tasks specified in no 2, letters a and c, and no 4, and in connection with the tasks specified in Ar­ticle 12 paragraphs 1, 3 and 5, Article 13 and Article 15 paragraphs 1 and 5, and Article 20 of Council Regulation (EC) No 338/97, while

2.     the Federal Agency for Nature Conservation shall be responsible for

a)     granting import and export permits and re-export certificates under Article 4 paragraphs 1 and 2 and Article 5 paragraphs 1 and 4 of Council Regulation (EC) No 338/97 as well as other documents as laid down in Article IX paragraph 1 letter a of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), and for dealings with the Secretariat, the Commission of the European Communities and with authorities of other Parties and non-Parties to the Convention in the context of applications for permits or in the prosecution of violations of import or export regu­lations as well as for the tasks specified in Article 15 paragraph 4 letters a and c;

b)     approval of exemptions pursuant to Article 8 paragraph 3 of Council Regulation (EC) No 338/97 in cases of imports;

c)     the registration of operations in which specimens are bred or artificially propagated for commercial purposes, as specified in Article VII paragraph 4 of the Convention on International Trade in En­dangered Species of Wild Fauna and Flora, and for notification to the Secretariat of the registration procedure referred to in Article 7 paragraph 1 no 4 of Council Regulation (EC) No 338/97 (in con­formity with Article IX paragraph 2 of the Convention on International Trade in Endangered Spe­cies of Wild Fauna and Flora);

3.     the customs offices published in accordance with Article 45 paragraph 3 shall be responsible for moni­toring transboundary goods traffic with third countries;

4.     the Federal Customs Administration shall be responsible for the exchange of information with the Se­cretariat on matters related to the combating of crime in the field of species protection;

5.     the competent authorities of each Federal Land concerned: for all other responsibilities under Council Regulation (EC) No 338/97.

(2) The Federal Agency for Nature Conservation shall act as the scientific authority referred to in Article 13 paragraph 2 of Council Regulation (EC) No 338/97.

Article 45
Assistance from Customs Authorities

(1) The Federal Ministry of Finance, and the customs offices designated by it, shall participate in monitor­ing the importation and exportation of specimens of fauna and flora species that are subject to import and export regulations under legal instruments of the European Communities and in monitoring with respect to the prohibitions on possession and marketing applicable pursuant to this Section in goods traffic with third countries.

(2) The Federal Ministry of Finance shall have authority to regulate, in agreement with the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, the details of the procedure arising from paragraph 1 above by way of Ordinance not requiring the consent of the Bundesrat; where necessary, it may also provide for obligations to notify, register, provide information or assistance, as well as the obliga­tion to tolerate inspections of business papers and of other documents, or of premises, and to tolerate the removal of non-payable samples and specimens.

(3) The names of the customs offices clearing specimens of fauna and flora species for importation or ex­portation shall be provided by the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, in agreement with the Federal Ministry of Finance, for publication in the Bundesanzeiger (Federal Gazette). Special reference shall be made to offices attending to the customs clearance of live specimens of plants or animals.

Article 46
Import and Export Procedures

(1) Any person who imports or exports specimens of fauna or flora species that are subject to import or export regulations pursuant to legal instruments of the European Communities shall register such specimens of fauna and flora with a customs office published in accordance with Article 45 paragraph 3, present to the relevant customs office any permits or other documents required for such imports or exports and shall fur­thermore, upon request, present such specimens of fauna or flora for inspection.

(2) In the case of live animals, the importer or exporter shall communicate the expected time of arrival to the customs office responsible for customs clearance not later than 18 hours prior to their arrival, indicating the type/ species and number of such specimens.

Article 47
Confiscation and Impounding by Customs Offices

(1) In cases where customs offices are in doubt as to whether specimens of fauna or flora belong to species or populations that are subject to import or export restrictions pursuant to legal instruments of the European Communities or to prohibitions on possession or marketing pursuant to the provisions of this Section, they may take such specimens of fauna or flora into their own custody, or place them in the custody of third par­ties, at the expense of the person authorized to dispose of them, until such doubts have been removed; they may also leave them in the custody of the person authorized to dispose of them, on condition that they shall not dispose of them. To clarify the doubts, the customs offices may request the person authorized to dispose of such specimens, to submit a certificate issued by an independent expert institution or person, recognized as such by the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, confirming that the specimens of fauna or flora concerned do not belong to any species or populations that are subject to import or export restrictions pursuant to legal instruments of the European Communities or to prohibi­tions on possession or marketing pursuant to the provisions of this Section. Where the doubts prove to be unfounded, the Federal Government shall reimburse any expenses incurred in acquiring certificates and the additional costs of placing in custody.

(2) In cases where it is found during the customs controls that specimens of fauna or flora are being im­ported or exported without the prescribed permits or other documents, the specimens of fauna or flora con­cerned shall be confiscated by the customs office. Confiscated specimens of fauna or flora may be left in the custody of the person authorized to dispose of them, on condition that they shall not dispose of them. If the prescribed permits or other documents are not submitted within one month of confiscation, the customs office shall order the specimens of fauna or flora to be impounded; the customs office may grant a reason­able extension not exceeding a total of six months. In cases where the specimens of fauna or flora con­cerned are found to belong to a category for which the granting of any import or export permits is inadmis­sible, they shall be impounded immediately.

(3) In cases where it is found during the customs controls that import or export of the specimens of fauna or flora concerned conflicts with the prohibitions on possession and marketing, paragraph 2 above shall apply mutatis mutandis.

(4) In cases where specimens of confiscated or impounded fauna or flora are sold, the proceeds shall be paid to the owners if they can prove that, through no fault of their own, they were unaware of the facts and circumstances that gave rise to confiscation or impounding. Third parties whose rights are extinguished by impounding or sale shall receive compensation from the proceeds under the conditions mentioned in the first sentence above.

(5) In cases where specimens of fauna or flora are confiscated or impounded, the costs thus incurred, in particular for care, housing or storing, transport, return or utilization/processing shall be paid by the import­ers or exporters; where their identity cannot be established, such costs shall be paid by the senders, carriers or recipients if these were aware, or should have been aware, of the facts and circumstances that gave rise to confiscation or impounding.

(6) Article 8 paragraph 6 and Article 16 paragraphs 3 and 4 of Council Regulation (EC) No 338/97 remain unaffected.

Article 48 Charges

(1) The Federal Agency for Nature Conservation shall collect charges (fees and expenses) for its official acts performed in accordance with the provisions of this Section.

(2) The Federal Ministry for the Environment, Nature Conservation and Nuclear Safety shall have authority to establish regulations by way of Ordinance not requiring the consent of the Bundesrat, subject to prior agreement with the Federal Ministry of Finance, the Federal Ministry of Consumer Protection, Food and Agriculture and the Federal Ministry of Economics and Technology, specifying the facts on which to base the fees, as well as specific fixed rates or rates varying between certain limits. The costs to be paid may be regulated in derogation of the Administrative Expenses Act (Verwaltungskostengesetz).

Article 49
Obligation to Furnish Proof, Confiscation

(1) Persons who possess, or have actual control over:

1.     live specimens of specially protected fauna or flora species, their living or dead morphological forms of development, or essentially intact dead specimens of specially protected fauna or flora species, or

2.     readily recognizable parts of specimens of strictly protected fauna or flora species, or readily recogniz­able derivatives thereof, or

3.     living specimens of fauna or flora species specified in Article 42 paragraph 3 no 2,

may claim to have a right to such possession or control vis-à-vis the competent authorities of the Federal Land concerned only if they are able upon request to produce conclusive evidence substantiating their claim, or if they can prove that they or third parties were in possession of the specimens of fauna or flora concerned before the date of placing under protection as specially protected species or prior to their inclu­sion in an Ordinance pursuant to Article 52 paragraph 4.

(2) Paragraph 1 above shall not apply if the derivatives referred to in paragraph 1 no 2 are serving as per­sonal or household effects. Where plants or animals were acquired before the date of placing under protec­tion as specially protected species or prior to their inclusion in an Ordinance pursuant to Article 52 para­graph 4 and serve as personal or household effects, it shall be sufficient to furnish prima facie evidence instead of submitting proof as specified in paragraph 1. Prima facie evidence may only be requested if there are facts justifying the assumption that relevant claims are unjustified.

(3) Where, pursuant to Articles 8 and 9 of Council Regulation (EC) No 338/97, proof of authorization for actions mentioned in these Articles is required, or such proof requires provision of certain documents, such proof shall be provided in the manner prescribed in the aforementioned Regulation.

(4) Specimens of fauna or flora for which holders can neither produce substantiating evidence, nor furnish prima facie evidence, may be confiscated by the competent authorities of the Federal Land concerned. Arti­cle 47 shall apply mutatis mutandis; Article 47 paragraph 1 second sentence shall be applicable with the proviso that the submission of certification from a different independent expert agency or individual may also be requested.

Article 50
Rights of Information and of Access

(1) Upon request, individuals, legal entities and unincorporated associations shall provide the competent authorities pursuant to Article 44 of this Act or pursuant to provisions in effect in the Federal Land con­cerned, with the information required for the implementation of legal instruments of the European Commu­nities, or provisions contained in this Section, or any legal provisions laid down for the purpose of their implementation.

(2) Where necessary, persons appointed by the authorities referred to in paragraph 1, may, within the framework of paragraph 1 above, during operating times and business hours enter the premises, buildings, rooms, vehicles and other means of conveyance, used for business or other operations by persons obliged to furnish information, and inspect cases, containers and business documents. Persons obliged to furnish in­formation shall assist the inspectors in their work as far as necessary and present their business documents upon request.

(3) Persons obliged to furnish information may refuse to answer questions which would make them, or any of their relatives as specified in Article 383 paragraph 1 nos. 1 to 3 of the Code of Civil Procedure (Zivil­prozeßordnung), liable to criminal prosecution or to proceedings under the Administrative Offences Act (Gesetz über Ordnungswidrigkeiten).

Article 51 Zoos

The Federal Laender shall meet the obligations arising from Council Directive 1999/22/EEC of 29 March 1999 on the keeping of wild animals in zoos (OJ EC No L 94, page 24), in particular by laying down rules and regulations where these obligations have not already been met by the Federal Animal Protection Act (Tierschutzgesetz) or by rules and regulations laid down on the basis of the Federal Animal Protection Act . In this context the Federal Laender shall assure that the zoos implement the conservation measures referred to in Article 3 of the Directive. The Federal Laender may provide that a licence for the establishment and operation of a zoo required under Land legislation to meet the obligations referred to in the first sentence, includes the authorization pursuant to Article 11 paragraph 1 no 2a of the Federal Animal Protection Act. Where animal protection legislation at Federal level does not provide any more specific requirements for the keeping of animals in zoos, the Federal Laender may lay down rules and regulations on relevant re­quirements, applying Article 2a paragraph 1 of the Federal Animal Protection Act mutatis mutandis.

Article 52 Authorizations

(1) The Federal Ministry for the Environment, Nature Conservation and Nuclear Safety shall have authority to place fauna and flora species not falling under Article 10 paragraph 2 no 10, letter a or b, or populations of such species, under special protection by way of Ordinance with the consent of the Bundesrat provided that the species concerned are native species whose survival in Germany is endangered due to human acts or activities, or species that may be confused with such endangered species or with species referred to in Article 10 paragraph 2 no 10 letter b.

(2) The Federal Ministry for the Environment, Nature Conservation and Nuclear Safety shall have authority to place the following under strict protection by way of Ordinance with the consent of the Bundesrat:

1.     certain

a)     fauna and flora species listed in Annex B of Regulation (EC) 338/97

b)     European bird species which enjoy special protection in accordance with Article 10 paragraph 2 no 10, letter a or b

2.     certain other fauna or flora species referred to in paragraph 1 above, provided that the species concerned are native species at risk of extinction in Germany.

(3) The Federal Ministry for the Environment, Nature Conservation and Nuclear Safety shall have authority

1.     to specify in greater detail what parts or derivatives of specimens of specially protected fauna or flora species shall be considered readily recognizable within the context of Article 10 paragraph 2 no 1, let­ters c and d or no 2, letters c and d,

2.     to exempt certain specially protected species or specific origins of specially protected fauna or flora species, as well as bred or artificially propagated specimens of specially protected fauna or flora species, entirely, in part or under certain conditions from the prohibitions of Article 42, provided that this does not endanger the purpose of protection (Schutzzweck) and does not conflict with Articles 12, 13 and 16

of Council Directive 92/43/EEC, Articles 5 to 7 and 9 of Council Directive 92/409/EEC, other legal in­struments of the European Communities, or obligations arising from international conventions relating to species conservation, by way of Ordinance with the consent of the Bundesrat.

(4) The Federal Ministry for the Environment, Nature Conservation and Nuclear Safety shall have authority to designate, by way of Ordinance with the consent of the Bundesrat, non-native fauna and flora species not subject to special protection to which the prohibitions of Article 42 paragraph 2 are applicable on the basis of Article 42 paragraph 3 no 2, where this is necessary in view of the risk of adulteration of the fauna or flora in the Member States or because of the endangerment of the survival or abundance of wild fauna or flora species of the Member States, or of populations of such species.

(5) The Federal Ministry for the Environment, Nature Conservation and Nuclear Safety shall have author­ity, where necessary for reasons of species conservation and not in conflict with legal instruments of the European Communities, to prohibit or restrict:

1.     the keeping or breeding of specimens of fauna

2.     the circulation of specimens of fauna or flora

of certain specially protected species and of specimens of the fauna or flora species designated by way of Ordinance pursuant to Article 52 paragraph 4.

(6) The Federal Ministry for the Environment, Nature Conservation and Nuclear Safety shall have authority where necessary for reasons of species conservation, in particular in order to meet the obligations arising from Article 15 of Council Directive 92/43/EEC, Article 8 of Council Directive 79/409/EEC, or from inter­national conventions relating to species conservation, to restrict or prohibit, by way of Ordinance with the consent of the Bundesrat,

1.     the production, circulation or use of certain equipment, agents, tools or devices by which specimens of wild fauna or flora species may be killed, fought, captured or destroyed in major quantities or on a non­selective basis;

2.     actions or methods that may lead to the disappearance or other significant adverse impacts on popula­tions of wild fauna or flora species,

The first sentence no 1 shall not apply to equipment, agents, tools or devices requiring a licence on the basis of other legal provisions, provided that the interests of species conservation are to be taken into account in relevant licensing.

(7) The Federal Ministry for the Environment, Nature Conservation and Nuclear Safety shall also have au­thority to lay down provisions, by way of Ordinance with the consent of the Bundesrat, concerning

1.     record-keeping obligations for those who handle, work or process, buy, sell or acquire from others specimens of specially protected fauna or flora species for commercial purposes, specifying in particular what persons are obliged to keep records, subject matter and scope of the data requested, period of obli­gation to preserve these data and their review by the competent authorites of the Federal Land con­cerned;

2.     marking of specimens of specially protected fauna and flora species for the purpose of supplying evi­dence pursuant to Article 49;

3.     certification of legal acquisition of specimens of fauna and flora for the purpose of supplying evidence in accordance with Article 49;

4.     obligations to notify possession of

a)     specimens of specially protected fauna or flora species,

b)     specimens of fauna or flora species designated by way of Ordinance pursuant to Article 52, para­graph 4, in order to facilitate monitoring and surveillance with regard to prohibitions of possession and marketing.

(8) Any Ordinance pursuant to paragraphs 1 to 7 requires prior agreement with the Federal Ministry of Consumer Protection, Food and Agriculture in so far as it relates

1.     to species of fauna that are subject to hunting or fishing legislation

2.     to species of fauna used for biological plant protection, or

3.     to plants obtained by artificial propagation, or to plants suitable for silvicultural use.

Any ordinance pursuant to paragraph 6 first sentence no 1 and paragraph 7, nos 1, 2 and 4 requires agreement with the Federal Ministry of Economics and Technology.

(9) Where the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety chooses not to exercise its authority pursuant to paragraphs 4 to 7, the Federal Laender may lay down corresponding rules and regulations.

Article 53
Overhead Power Lines and Bird Protection

To protect bird species, all newly constructed power poles and technical components of medium-voltage power lines shall be designed in such a way that birds are protected from electrocution. On existing power poles and technical components of medium-voltage power lines that pose a high risk to birds, the necessary measures to protect birds against electrocution shall be implemented within a period of ten years. The first and second sentences above shall not apply to the overhead power lines of the railways.

Article 54
Further Provisions at Laender Level

The Federal Laender may lay down rules and regulations on the special protection of other wild native spe­cies of fauna and flora, in particular with respect to species listed in Annex V of Council Directive 92/43/EEC, where this is necessary in view of the risks posed by human acts or activities to the survival of the species concerned, or in order to safeguard the purposes outlined in Article 14 paragraph 1 of the Coun­cil Directive, in the respective Federal Land. The first sentence above shall not apply to species of fauna that are subject to hunting legislation in accordance with Article 2 paragraph 1 of the Federal Hunting Act (Bundesjagdgesetz).

Article 55
General Administrative Provisions

It is incumbent upon the Federal Government, with the consent of the Bundesrat, to issue the general ad­ministrative provisions needed to implement legal instruments of the European Communities, the provi­sions of Article 42 paragraphs 2 and 3, Articles 43 and 49, or any Ordinance pursuant to Article 52 para­graphs 5 and 7. Approval by the Bundesrat is not required where the general administrative provisions con­cern Federal Government authorities.

Weiter