Federal Nature Conservation and Species Protection Legislation in Germany

1.   Abstract

Remark: The article below is specific for the legal situation in Germany. The laws cited have been loosely translated into English. However, it should be noted that the original German legislative text is legally binding (please see the German version of this page).

In Germany, nature conservation and species protection are defined legally binding in the Federal Nature Conservation Act (BNatSchG) and in the Federal Regulation for the Protection of Species (BArtSchV). According to this legislation, it is forbidden to collect protected species as well as to collect any species within nature protection areas without official exemption certificate. Within the order of beetles (Coleoptera) species of the following genera/families are protected by Federal Law (among others): Jewel beetles (Buprestidae), longhorn beetles (Cerambycidae), blister beetles (genus Meloe), stag beetles (Lucanidae), as well as ground beetles of the genus Carabus. Additionally, further species are protected or even strictly protected, e. g. Cerambyx cerdo, Cucujus cinnaberinus, Dytiscus latissimus, Osmoderma eremita, Rosalia alpina and others.

2.   Introduction

In the early 1970s, environmental awareness started to develop in Germany. A wide social stratum began to perceive nature and environment as valuable entity that warrants protection. Consequently, the legislator defined the targets of environmental protection in the Federal Nature Conservation Act in 1977. These targets are legally binding in Germany as a general principle (§ 1 Abs. 1 of the new BNatSchG) as of March 1st, 2010.

In 1986 the Federal Regulation for the Protection of Species (BArtSchV) was passed as a national decree for the protection of species of wild fauna and flora. Its Annex 1 summarizes the protected species, among them quite a few representatives of the order Coleoptera (beetles). Another relevant legislation is the so called FFH-Directive (Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora), which also became legally binding in Germany with the amendment of the Federal Nature Conservation Act in 1998. Thus the coleopterist is faced with an increasing number of legal regulations when executing her/his activities. Especially among hobbyists little or nothing is known of nature conservation and species protection legislation. On this page the relevant legislation shall be introduced briefly, particularly in view of regulations relevant for the coleopterist.

3.   Federal Nature Conservation Act (BNatSchG)

The Federal Nature Conservation Act initially came into force on January 1st, 1977. The BNatSchG defines the objectives and the fundamentals of environmental protection and landscape conservation.

The Federal Nature Conservation Act is divided into 11 sections with a total of 74 §§. The sections specify or regulate (1) General Regulations, (2) Landscape Planning, (3) General Conservation of Nature and the Landscape, (4) Protection of Nature and the Landscape, (5) Protection and Care of Species of Wild Fauna and Flora and their habitats, (6) Protection of the marine environment, (7) Recreation in nature and landscape, (8) Cooperation of Associations, (9) Exemptions, (10) Fines and Penal Provisions and (11) Transitional Provisions.

In practice, especially when collecting specimen for scientific purposes, the coleopterist will be faced with three main questions, namely

(a)  In which areas specimen may be collected?
(b)  Which wild beetle species may be collected?
(c)  Which exemptions does the legislator provide?


(a) In which areas specimen may be collected?

In section 4 (§§ 20-36), the Federal Nature Conservation Act specifies the protection of nature and the landscape. § 20 Abs. 2 BNatSchG defines protection categories and purpose of protection legally binding.

Thus, conservation of nature prevails over any other interest in a nature reserve. Therefore in a nature reserve it is forbidden among other things to catch animals or to collect any of their development forms. Similar restrictive provisions may possibly apply in the specific regulations for other conservation categories, e. g. in natural monuments (§ 28), biosphere reserves (§ 25), national parks (§ 24) or natural parks (§ 27). If a coleopterist plans to collect specimen in any of these conservation areas, it is advisable to contact the local nature conservation authority well in advance, as collecting of any beetle specimen in such areas is punishable by a severe fine.

Today, most of the State Environmental Agencies offer web-based tools like map servers, that offer a convenient overview of existing conservation areas. Web links to the map servers of the German State Environmental Agencies are provided in the chapter Literature.


(b) Which wild beetle species may be collected?

Numerous beetle species are protected or even strictly protected and may not be collected at all. According to § 44 Abs. 1 No. 1 BNatSchG it is forbidden "to pester, catch, harm or kill wild living animals of the protected species or to take, damage or destroy their development forms":

The legislator distinguishes between protected and strictly protected species. The assignment in the respective category is regulated in § 7 Sect. 2.

Thus, a beetle species can be protected, if it is marked in Annex 1 column 2 of the Federal Regulation for the Protection of Species with a cross (+). Additionally, it can be strictly protected, if it is marked in Annex 1 column 3 of the Federal Regulation for the Protection of Species with a cross (+) or if it is listed in Annex IV of the FFH-Directive (Council Directive 92/43/EEC) (see chapter below on this page). Among the protected species there are virtually all native species of the genus Protaetia, Carabus and Cicindela, to name but a few. Strictly protected species warrant an even greater level of protection, e. g. with regard to disturbance (§ 44). If strictly protected species are affected in criminal offences, this leads to a more severe sentencing (§ 71 Abs. 2 und 4). Information on the protection status of animal species can be found on the internet, e. g. in the species protection database WISIA run by the Federal Office for Nature Conservation (see Literature).


(c) Which exemptions does the legislator provide?

If it is intended to collect protected species, an official exemption certificate issued by the nature conservation authority is required (according to § 45 Sect. 7 or § 67 BNatSchG).

An exemption pursuant to § 45 Sect. 7 BNatSchG can be granted by the nature conservation authority only if all of the following criteria are met:

• for the purpose of research, teaching, education or resettlement or due measures for these purposes like rearing or artificial reproduction (or for other reasons in § 45 Sect. 7 number 1)
  
  
• in the absence of a reasonable alternative
  
  
• the conservation status of the population of species does not deteriorate
  
  
• in case of species of Annex IV of Council Directive 92/43/EEC with unfavorable conservation status of the population the conservation status does not further deteriorate and the restoration of a favorable conservation status is not impeded

A waiver pursuant to § 67 Sect. 2 BNatSchG can be granted by the nature conservation authority only, if the execution of the regulation does not create an unreasonable burden in the particular case.

An official exemption certificate can be directly applied for in writing, together with a statement of reasons to the Nature Protection Authority. To attain an exemption certificate can pose a substantial hurdle, especially for beginners in colepterology. Often it is the easiest way to join an established local entomological association.

Collecting protected beetle species without an official exemption certificate is punishable by severe fines (§ 69 BNatSchG) or may be even prosecuted as a criminal offence (§ 71 BNatSchG).

Depending on the collection method for protected species, an exemption from the prohibition of § 4 Sect. 1 BArtSchV may be required. For catching ground beetles with a Barber pitfall trap in any case an exemption certificate pursuant to § 4 Sect. 3 BArtSchV is required from the responsible nature conservation authority.

4.   Federal Regulation for the Protection of Species (BArtSchV)

Federal Regulation for the Protection of Species (BArtSchV) was passed in 1986 on the basis of the Federal Nature Conservation Act as a Federal regulation for the protection of wild living species of flora and fauna. By the Federal Regulation for the Protection of Species the Council Regulation (EC) No. 338/97 bas been transposed into national law and has even been exacerbated to some extent. The Council Regulation (EC) No. 338/97 in turn implements the Washington Convention (Convention on International Trade in Endangered Species of Wild Fauna and Flora, CITES). The Federal Regulation for the Protection of Species is divided into 6 sections with a total of 17 §§, namely (1) Protection, Exceptions, Prohibitions, (2) Parts and Products, Recording Obligations, (3) Keeping and Breeding, Notification Obligations, (4) Labeling, (5) Administrative Offences, (6) State Proviso, Annexes 1-7. In particular, §§ 1 and 4 regulate in conjunction with Annex 1, which wild living species of flora and fauna are legally protected and which acts, procedures and equipment are prohibited:

Annex 1 contains a list of the protected and strictly protected species of flora and fauna in tabular form. On this page, only the beetle species (Coleoptera) explicitly cited in Annex  1 shall be listed:

5.   FFH-Directive 92/43/EEC

The FFH-Directive (Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora) provides the legal basis for nature protection together with Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds within the EU. The wild living species of flora and fauna in the EU are to be protected and preserved. It rests on two pillars: For certain species and biotopes, special protected areas (SPA) are being established (biotope protection). Together with areas protected by the bird protection directive, the special protected areas form the network Natura 2000. Certain wild living species of flora and fauna are protected throughout all areas (species protection).

Biotope protection
The Annexes I and II of the FFH-Directive contain the biotopes and species of community interest. To secure their conservation, "sites of community interest" (SCI) shall be established. Out of 231 biotope types and approx. 900 species, in Germany 91 biotope types and 133 species of flora and fauna occur, thereof 12 beetle species, among others Bolbelasmus unicornis, Cerambyx cerdo, Cucujus cinnaberinus, Dytiscus latissimus, Graphoderus bilineatus, Limoniscus violaceus, Lucanus cervus, Osmoderma eremita, Phryganophilus ruficollis (old records), Rhysodes sulcatus (old records), Rosalia alpina and Stephanopachys substriatus. For these species, Germany has a particular responsibility and has established Natura 2000 areas for their conservation.

Species protection
Those species, which con not be efficiently preserved by establishing protection areas (e. g. species living in building like bats), are listed in Annex IV of the FFF-Directive. According to Article 12 FFH-Directive for these species protection provisions shall apply regardless whether they are inside or outside of protection areas.

The FFH Directive is not a directly applicable law for citizens. For coleopterists however, the FFH Directive should be of particular interest, as a number of beetle species is listed in its annexes II and IV.

The following table lists all beetle species covered by annexes II and IV of the FFH Directive, independently of their occurrence in Germany. An asterisk (*) in front of the species name indicates a FFH priority species.

1. Obligation to designate special protected areas (SPA)
   
   As far as species listed in annex II are concerned, these are "animal and plant species of Community interest, whose conservation requires the designation of special areas of conservation", so called SPA’s.
   
   Germany has submitted a list of respective areas to the European Commission. No shortcomings were noted by the Commission. The list of the confirmed "areas of Community importance" has been published in the Official Journal of the European Union.
   
   The placement of these areas under protection as "special protected area" falls under the responsibility of the Federal States. In some Federal States it has been accomplished by implementing so called FFH Basic Regulations or FFH Basic Protection Regulations, respectively.
   
   
   
2. Supervision and reporting obligations (FFH monitoring)
   
   Under article 11 of the FFH Directive all member states must ensure, among others, appropriate monitoring of the conservation status of the species listed in annexes II and IV – within and outside the special protected areas. In doing so, particular attention shall be paid to the FFH Priority species. In Germany, the Federal States are responsible for the implementation of FFH monitoring.
   
   Under article 17 of the FFH directive, every member state is obliged to submit a progress report on the status of implementation of the FFH directive every six years. The report shall comprise information on particular measures taken in order to guarantee a favorable development of the conservation status of the species listed in annex II and evaluate the effectiveness of these measures. The most important results of the FFH monitoring as described in article 11 are part of the report as well.
   
   In Germany, the German Federal Agency for Nature Conservation (BfN) is responsible for the preparation of these reports. Further information, including the national report for the years 2001 to 2015 can be found at the BfN.
   
   
   
3. Legal protection
   
   For species listed in annex II there are no particular species protection provisions in Germany.
   
   As far as species of annex IV are concerned, these species are – according to the FFH Directive – “strictly protected species of Community interest”. Therefore, all species of annex IV are protected according to § 7(2) nr. 13 letter b double letter aa of the Federal Nature Conservation Act (BNatSchG) and are additionally strictly protected in accordance with § 7(2) nr. 14 letter b of the Federal Nature Conservation Act.
   
   Hence, for beetle species listed in annex IV, access restrictions, possession restrictions and marketing restrictions are in force nationwide.
   
   In practical terms that means it is forbidden
   
   
   • to pester, catch, harm or kill these species,
   • to take, damage or destroy their development forms, e.g. larvae or pupae,
   • to considerably disturb these species during reproduction, breeding or during hibernation and migration or
   • to damage, destroy and remove spots for refuge and reproduction from nature.
   
   It is furthermore forbidden
   
   
   • to take these species in possession or into custody, to have them in possession or in custody or to process or convert them,
   • to sell, purchase, offer to sell or offer to purchase, hold for sale or to transport or
   • to acquire for commercial purposes, to put on show, or to use otherwise.
   
   Upon request, the competent authorities may grant exemptions from the above-mentioned restrictions. § 45 of the Federal Nature Conservation Act provides several legal exemptions from these restrictions. However, it should be noticed that anyone who is in possession of a live or dead specimen of a species protected by annex IV is obliged to prove the lawful possession to the competent authority (§ 46 of the Federal Nature Conservation Act).
   
   Any offences against restrictions to access, possess or market species of annex IV are punishable since June 13th, 2012 by fines up to 50.000 Euro or imprisonment up to 5 years (§§ 69, 71 and 71a of the Federal Nature Conservation Act).
   
   
   
4. Damages to certain species and natural habitats (biodiversity damage)
   
   According to § 2, nr. 1 a) of the Environmental Damage Prevention and Remediation Act, an environmental damage is any impairment of species or natural habitats according to § 19 of the Federal Nature Conservation Act. Hence, an environmental damage is any damage with considerable adverse effects on reaching or maintaining the favorable conservation status of the
   
   
   • beetle species listed in annex II and their habitats;
   • beetle species of annex IV and their spots for refuge and reproduction.
   
   This is valid both within and outside special protected areas.
   
   Whether the adverse effects are considerable has to be assessed considering the baseline condition and respecting the fundamental criteria of annex I of the Environmental Liability Directive (Directive 2004/35/EC). The following does not have to be classified as significant damage:
   
   
   1. negative variations that are smaller than natural fluctuations regarded as normal for the species or habitat in question,
      
      
   2. negative variations that are due to natural causes or resulting from intervention relating to the normal management of sites, as defined in habitat records or target documents or as carried on previously by owners or operators objectives or
      
      
   3. damage to species or habitats for which it is established that they will recover, within a short time and without intervention, either to the baseline condition or to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition.
   
   However, the Environmental Damage Prevention and Remediation Act only classifies significant adverse effects as environmental damage, if they were caused by professional activities.
   
   Furthermore, according to § 19(1) sentence 2 of the Federal Nature Conservation Act it is no impairment of species or natural habitats, if the adverse effects have been evaluated and approved by the competent authority beforehand in the context of:
   
   
   • Project approvals with impact assessments according to § 34 of the Federal Nature Conservation Act;
   • Exceptions from the regulations relating to species protection according to § 45(7) of the Federal Nature Conservation Act;
   • Exemptions from the regulations relating to species protection according to § 67(2) of the Federal Nature Conservation Act;
   • The impact mitigation regulation according to § 15 of the Federal Nature Conservation Act;
   • The preparation of development plans according to § 30 or § 33 of the Building Code.
   
   Identification and evaluation of effects in accordance with the above-mentioned permissions or approvals leads to release from liability (indemnity).
   
   §§ 4 to 6 of the Environmental Damage Prevention and Remediation Act regulate the responsible’s duties in case of an imminent or incurred environment damage.
   
   In case of an imminent risk of an environmental damage, the responsible if obliged to
   
   
   • inform the competent authority without delay about all significant aspects of the actual situation (obligation to inform);
   • take the necessary preventive measures without delay (obligation to prevent).
   
   If the environmental damage has already occurred, the responsible has to
   
   
   • inform the competent authority without delay about all significant aspects of the actual situation (obligation to inform);
   • take the necessary measures for damage limitation and remediation (obligation to remediate).
   
   According to § 10 of the Environmental Damage Prevention and Remediation Act the competent authority takes action, if a potential environmental damage has come to its attention, e.g. by information of the responsible. A party affected or an accredited environmental association according to § 3 of the Environmental Appeals Act can request the competent authority to take action. The request must furnish prima facie evidence that an environmental damage has occurred.

6.   Beetles in the approval/planning practice

At the latest since the railway project "Stuttgart 21" and the subsequent discussion about the hermit beetle (Osmoderma eremita) the general public became aware of the fact that populations of certain beetle species have to be considered in the approval process of construction projects.

The legal considerations concerning the protected species depend on their protection status.

Beetle species protected by European law (= species of annex IV of the FFH directive) are usually subject matter of a species conservation regulatory technical report (AFB) or of a species protection assessment (saP). Such an expertise is required if a project or plan entails the possibility that it conflicts with the prohibitions of § 44 Sect. 1 BNatSchG in case of species in annex IV of the FFH directive (or in case of European bird species). The circumstances to be evaluated and the information required for the decision (situation of population, conservation status etc.) can be gathered from the following checklist or from the example of the  hermit beetle in Leipzig.

Species that are "only" protected at national level are not part of the species conservation regulatory technical report (AFB) and of the species protection assessment (saP). However, they are considered within the framework of the green structures plan (GOP) of a land development plan or in a landscape conservation support plan (LBP). It has to be noted that a waiver from the prohibitions of § 44 Sect. 5 Sentence 1 BNatSchG pertaining to species "only" protected at national level is only granted if the impairment resulting from the intervention demonstrably can't be avoided or unavoidable impairments can be compensated. In that respect, special attention should be paid to species that are additionally strictly protected (but not part of annex IV of the FFH directive). A thorough examination of these species until the coming into force of an regulation according to § 54 Sect. 1 No. 2 BNatSchG is strongly recommended, because species from the pool of species strictly protected at national level are most likely eligible as species of special national conservation responsibility.

Against the background of a potential damage to the environment it is also recommended to consider those species in the context of a green structures plan or landscape conservation support plan, that are not specially protected but part of annex II of the FFH directive (keyword: release of liability).

7.   Further literature

1. Text of the Federal Nature Conservation Act (BNatSchG) in German
2. Text of the Federal Regulation for the Protection of Species (BArtSchV) in German
3. Text of the Council Directive 92/43/EEC (English, pdf)
4. Map servers of the State Environmental Agencies on the internet (pages are in German):
   Bavaria, Baden-Wurttemberg, Rhineland-Palatinate, Saarland, Hesse, North Rhine-Westphalia, Lower Saxony, Schleswig-Holstein, Mecklenburg-Western Pomerania, Brandenburg, Saxony-Anhalt, Saxony
5. Federal Agency for Nature Conservation - WISIA (Scientific Information System for the International Protection of Species)