Section
Nine:
Administrative
Fines and Penalties
Article
65 Administrative Fines
(1) An
administrative offence shall be deemed to be committed by any person who,
wilfully or by negligence,
1. contravenes Article 42 paragraph 1 no 1 of
this Act, by pursuing, capturing, injuring or killing any specimen of wild
fauna species concerned, or by removing from the wild, damaging or destroying
any of the morphological forms of their life cycles, their nesting or breeding
sites, other living quarters or inhabited sites or places of refuge,
2. contravenes Article 42 paragraph 1 no 2 by
cutting off, picking, uprooting, tearing off, digging out, damaging or
destroying any specimen of the wild flora species concerned, or parts or
morphological forms of development thereof,
3. contravenes Article 42 paragraph 2 first
sentence no 2 of this Act, also in conjunction with paragraph 3 first sentence
no 1 or no 2, no 2 in conjunction with an Ordinance pursuant to Article 52
paragraph 4, by selling, buying, offering for purposes of sale or purchase,
keeping in stock or transporting for purposes of sale, acquiring, displaying
to the public or using in some other way for commercial purposes, any specimen
of the fauna or flora concerned or any derivative thereof.
(2)
Furthermore, an administrative offence shall be deemed to be committed by any
person who, wilfully or by negligence,
1. contravenes any Ordinance
(Rechtsverordnung) pursuant to
a) Article 45 paragraph 2
b) Article 52 paragraph 5 or
c) Article 52 paragraph 6 first sentence, or
Article 52 paragraph 7,
or
contravenes any enforceable rules or instructions based on such ordinance,
where the ordinance refers, with respect to the offence concerned, to the
present provision on administrative fines,
2. contravenes Article 42 paragraph 1 no 3 by
disturbing any specimen of wild fauna species,
3. contravenes Article 42 paragraph 1 no 4 by
impairing or destroying any relevant sites,
4. contravenes Article 42 paragraph 2 first
sentence no 1, also in conjunction with paragraph 3 first sentence no 1 or no
2, no 2 in conjunction with an Ordinance (Rechtsverordnung) pursuant
to Article 52 paragraph 4, by gaining possession of, taking in custody,
having in possession or in custody, handling, working or processing any
specimen of certain fauna or flora species, or derivatives thereof,
5. contravenes Article 46 paragraph 1 by
failing to register any specimen of the fauna or flora species concerned for
import or export, failing to register such specimens of fauna or flora
correctly, or by failing to present such specimens on time,
6. contravenes Article 46 paragraph 2 by
failing to provide information, failing to provide correct or complete
information, or failing to provide the information on time, or
7. contravenes Article 50 paragraph 1 by
failing to provide information, failing to provide correct or complete
information, or failing to provide the information on time, or
8. contravenes Article 50 paragraph 2 second
sentence by failing to assist the person appointed, or to submit business
documents, or to submit them completely or on time.
(3) An
administrative offence shall be deemed to be committed by any person who
violates Council Regulation (EC) No 338/97 by, wilfully or by negligence,
1. contravening Article 4 paragraph 1 first
sentence, or paragraph 2 first sentence, or Article 5 paragraph 1 or paragraph
4, first sentence, by importing, exporting or re-exporting a specimen of a
species referred to therein,
2. contravening Article 4 paragraphs 3 or 4 by
failing to register the import, or by failing to register the import correctly,
completely or on time,
3. contravening Article 8 paragraph 1, also in
conjunction with Article 5, by buying a specimen of a species referred to
therein, offering for sale, acquiring, displaying or using such a specimen for
commercial purposes, or by selling such a specimen, or keeping, offering or
transporting such a specimen for the purpose of sale, or
4. contravening any enforceable requirement
under Article 11 paragraph 3 first sentence.
(4) An
administrative offence shall be deemed to be committed by any person who
violates Council Regulation (EEC) No 3254/91 by, wilfully or by negligence,
1. contravening Article 2 by using leghold
traps, or
2. contravening Article 3 paragraph 1 first
sentence by transferring the pelt or fur of an animal species referred to
therein, or a good referred to therein, into the Community.
(5) In the
cases referred to in paragraph 1 and paragraph 2 no 1, letter b, and no 4, in
paragraph 3 nos 1 and 3 and in paragraph 4 above, administrative offences may
be punished by a fine of up to EUR fifty thousand; in other cases, such
offences may be punished by a fine of up to EUR ten thousand.
(6) The
administrative authority referred to in Article 36 paragraph 1 no 1 of the
Administrative Offences Act (Gesetz über Ordnungswidrigkeiten) shall be:
1. The Federal Agency for Nature Conservation
in the cases referred to
a) in paragraph 1 no 3, in paragraph 2 no 4 and
in paragraph 3 no 3 with regard to actions associated with imports into and
exports out of the Community,
b) in paragraph 2 no 7 with regard to
contraventions of obligations to inform the Federal Agency for Nature Conservation,
c) in paragraph 2 no 8 and paragraph 3 no 4
with regard to measures taken by the Federal Agency for Nature Conservation,
d) in paragraph 3 no 1 and paragraph 4 no 2,
2. the competent principal customs office in
the cases referred to in paragraph 2 no 1 letter a and no 5 and in paragraph 3
no 2, and 3. in all other cases: the respective competent authority of the
Federal Land concerned.
Article
66
Penal Provisions
(1) Any
person who, habitually or for commercial purposes, commits any of the wilful
acts mentioned in Article 65 paragraph 1, paragraph 3, nos 1 or 3, or paragraph
4 shall be liable to a term of imprisonment of up to three years, or a fine.
(2) Any
person who commits any of the wilful acts mentioned in Article 65 paragraph 1,
paragraph 3 nos 1 or 3, or paragraph 4, with regard to any specimen of fauna or
flora of strictly protected species shall be liable to a term of imprisonment
of up to five years, or a fine.
(3) Any
person who commits any of the acts referred to in paragraph 2 above habitually
or for commercial purposes shall be liable to a term of imprisonment ranging
from three months to five years.
(4) In cases
where the perpetrator commits any act referred to in paragraph 2 above by
negligence, he or she shall be liable to a term of imprisonment of up to six
months, or a fine of up to one hundred and eighty per diems.
Article
67 Confiscation
In cases
where an administrative offence as defined in Article 65 or a criminal offence
as defined in Article 66 above has been committed,
1. the objects to which the administrative or
criminal offence relates,
2. any objects used, or intended to be used,
when committing the offence or during the preparation thereof,
may be
confiscated. Article 23 of the Administrative Offences Act and Article 74 (a)
of the Penal Code shall be applicable.
Article
68
Powers of the Customs Authorities
In cases
where administrative or penal offences under the present Act are committed in
connection with the importation or exportation of specimens of fauna or flora,
the competent administrative authorities and the Public Prosecutor’s Office may
also entrust the respective principal customs offices (Hauptzollämter) or
the customs investigation offices (Zollfahndungsämter) with conducting
investigations (Article 161, first sentence, of the Code of Criminal Procedure).
Article 37 paragraphs 2 to 5 of the Foreign Trade and Payments Act (Außenwirtschaftsgesetz)
shall apply mutatis mutandis.