CITES sanctioning legislation
To implement Regulation (EC) 338/97, the Member States of the European Union should develop national laws that sanction any non-compliance with the provisions of CITES regulations. In Spain, the following laws have been enacted to that end:
- Organic Law 10/1995, of 23 November 1995 introducing the Criminal Code (amended several times). Published in State Gazette 281, 24.11.1995.
- Organic Law 12/1995, of 12 December 1995 to deter smuggling. Published in State Gazette 297, 13.12.1995. The consolidated version is amended by:
- Organic Law 6/2011, of 30 June amending Organic Law 12/1995, of 12 December to deter smuggling. State Gazette 156, 01.07.2011. It amends the law to deter smuggling, is important in the light of new developments relating to the Modernised Customs Code. The Code expressly includes missions such as protecting the Community against illegal trade, and protection of the environment.
- Law 34/2015, of 21 September, partially amending Law 58/2003, of 17 December, General Tax Law. It only applies the 2nd Additional Disposition, which amends Organic Law 12/1995, of 12 December, to deter smuggling; specifically amends articles 4, 11 and 12.
- Royal Decree 1649/1998, of 24 July 1998 to develop Title II of Organic Law 12/1995 of 12 December 1995 to deter smuggling, with regard to smuggling-related administrative infractions. State Gazette 214, 07.09.1998.
The amounts that are used to define illegal administrative and criminal acts involving CITES specimens, are updated as follows:
- Article 2, in reference to the classification of offences, states in paragraph 2 that a person commits a smuggling offence if he/she engages in the import, export, trade, possession, movement of wildlife specimens, and parts and products thereof, of species included in the Washington Convention of 3rd March 1973, or listed in Council Regulation (EC) 338/1997 of 9th December 1996, without complying with legally established requirements, whenever the value of the goods, wares, products, or items concerned is equal to or greater than 50,000 €.
- Article 11 relating to the classification of infringements provides in paragraph 1 that private individuals, companies, or certain entities (as listed in Article 35.4 of Law 58/2003 of 17 December, General Tax Law) commit an administrative infraction of smuggling if they commit any of the acts or omissions described in the previous paragraph (Article 2.2 of Law 12/1995, updated by Law 34/2015), when the value of the goods, merchandise, products, or items concerned is less than 50,000 €.
Notwithstanding the above, smuggling offences are also considered to have been committed by:
- persons who carry out any of the aforementioned activities through an organization, regardless of the value of the goods, merchandise, or products concerned;
- persons who implement a preconceived plan, or under the same circumstances, carry out several actions or breaches, in which the individual value of the goods, merchandise, products, or items concerned is less than the quantitative limit of 50.000 €, but the cumulative value of which is equal to or greater than that amount.
According to Article 11.2, smuggling-related administrative offences are classified as minor, serious, and major violations, depending on the value of the goods, wares, products, or effects involved; in the case of CITES specimens, as follows:
- Minor: less than 6.000 €
- Serious: between 6.000 € and 18.000 €
- Major: more than 18.000 €
Further, in reference to penalties, Article 12, paragraph 2, provides that perpetrators of smuggling-related administrative offences involving CITES specimens will be sanctioned as follows:
- Payment of a fine in proportion to the value of the goods. Range of applicable percentages for each type of offence as follows:
- Minor: between 200 and 225.
- Serious: between 225 and 275 %.
- Major: between 275 and 350 %.
In any case, the minimum fine will be 1.000 €.
- Closure of any establishments owned by perpetrators or suspension of the practice of activities. Depending on the type of offence, the duration of any temporary closure or suspension of activity shall be between the following minimum and maximum limits, respectively:
- Serious: Between four days and six months.
- Major: Between six months and one day, and twelve months.
Article 12bis provides that penalties for administrative offences shall be scaled in each case, taking into account: repeat offences, resistance, refusal to cooperate with, or obstructing the investigation by competent bodies, use of fraudulent means or intermediaries, use of the methods established under Customs regulations to simplify Customs clearance procedures to commit an offence; the type of goods, wares, products, or effects that were smuggled.