(1)

Avian influenza is an infectious viral disease in poultry and birds, causing mortality and disturbances which can quickly take epizootic proportions liable to present a serious threat to animal health and to reduce sharply the profitability of poultry farming. Under certain circumstances the disease may also pose a risk to human health. There is a risk that the disease agent might be spread to other holdings, to wild birds and from one Member State to other Member States and third countries through the international trade in live birds or their products.

(2)

Where a highly pathogenic avian influenza A virus of the subtype H5 is detected in a sample collected from poultry on the territory of a Member State and where, pending the determination of the neuraminidase (N) type, the clinical picture and the epidemiological circumstances justify the suspicion of highly pathogenic avian influenza caused by highly pathogenic influenza A virus of subtype H5N1 or the presence of highly pathogenic avian influenza of that subtype has been confirmed, the affected Member State should apply certain protection measures to minimise the risk of disease spread.

(3)

Such protection measures were adopted by Commission Decision 2006/135/EC of 22 February 2006 concerning certain protection measures in relation to highly pathogenic avian influenza in poultry in the Community (5) to be implemented in addition to those adopted in the framework of Council Directive 92/40/EEC of 19 May 1992 introducing Community measures for the control of avian influenza (6), in particular as regards the movement of certain birds and of products from poultry and other birds originating in the zone affected by the disease.

(4)

The measures laid down in Directive 92/40/EEC have been fundamentally reviewed in the light of recent scientific knowledge on the risks of avian influenza for animal and public health, the development of new laboratory tests and vaccines and the lessons learnt during recent outbreaks of this disease in the Community as well as in third countries. Taking account of that review, Directive 92/40/EEC was repealed and replaced by Directive 2005/94/EC, which is to be transposed by Member States into national law by 1 July 2007.

(5)

Pending the transposition of Directive 2005/94/EC and given the current disease situation in relation to avian influenza in the Community it was necessary to lay down transitional measures to be applied on holdings where outbreaks of avian influenza caused by highly pathogenic avian influenza viruses are suspected or confirmed in poultry or other captive birds.

(6)

Those transitional measures which are laid down in Commission Decision 2006/416/EC (7) should enable the Member States to adopt disease control measures in a proportionate and flexible manner, taking into account the various levels of risk posed by the different virus strains, the likely social and economic impact of the measures in question on the agriculture sector and other sectors involved, while at the same time ensuring that the measures taken for each specific scenario are the most appropriate.

(7)

With progress made in transposition of Directive 2005/94/EC by certain Member States, any reference to the transitional measures should be construed as a reference to the corresponding paragraph in Directive 2005/94/EC.

(8)

However, given the particular disease risk and the epidemiological situation with regard to highly pathogenic avian influenza and taking into account the severe economic impact the disease may have, in particular when occurring in densely populated poultry areas, certain supplementary measures as adopted under Decision 2006/135/EC should be maintained. Those measures should aim at reinforcing the local control measures, regionalising the affected Member State by separating the affected part of the territory from the disease free part thereof, and providing reassurance to the poultry sector and the trade partners about the safety of products dispatched from the disease free part of the country.

(9)

The measures provided for in Decision 2006/135/EC should be brought in line with those laid down in Decision 2006/416/EC and it is therefore appropriate for reasons of clarity and consistency to repeal Decision 2006/135/EC and replace it by the present Decision which only retains the additional control measures applicable to the specific disease situation with respect to highly pathogenic avian influenza of the H5N1 subtype.

(10)

Taking account of the differences in disease risk in case of an outbreak of highly pathogenic avian influenza, the affected Member State in close collaboration with the Commission should establish a high-risk area and a low-risk area which should be separated from the disease-free part of the territory.

(11)

If the epidemiological situation so requires, measures appropriate in relation to the areas concerned by the outbreak or suspected outbreak of highly pathogenic avian influenza should be taken, in particular by describing these areas, and keeping this description updated depending on the situation, in the Annex to the present Decision in accordance with the procedure provided for in Article 10(3) or (4) of Directive 90/425/EEC and Article 9(3) or (4) of Directive 89/662/EEC.

(12)

The measures laid down in Commission Decision 2005/734/EC of 19 October 2005 laying down biosecurity measures to reduce the risk of transmission of highly pathogenic avian influenza caused by Influenza virus A subtype H5N1 from birds living in the wild to poultry and other captive birds and providing for an early detection system in areas at particular risk (8) should be implemented in the areas affected by the disease.

(13)

In the interests of consistency, it is appropriate for the purposes of this Decision to apply certain definitions provided for in Directive 2005/94/EC, Council Directive 90/539/EEC of 15 October 1990 on animal health conditions governing intra-Community trade in, and imports from third countries of, poultry and hatching eggs (9), Regulation (EC) No 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin (10), Regulation (EC) No 998/2003.

(14)

Council Directive 92/65/EEC of 13 July 1992 laying down animal health requirements governing trade in and imports into the Community of animals, semen, ova and embryos not subject to animal health requirements laid down in specific Community rules referred to in Annex A (I) to Directive 90/425/EEC (11) provides for approved bodies, institutes and centres and a model certificate to accompany animals or their gametes between such approved premises in different Member States. A derogation from the transport restrictions should be envisaged for birds coming from and going to bodies, institutes and centres approved in accordance with that Directive.

(15)

Transport of hatching eggs from the protection zones should be permitted under certain conditions. The dispatch of hatching eggs to other countries should be permitted subject in particular to compliance with the conditions referred to in Directive 2005/94/EC. In such cases the animal health certificates provided for in accordance with Directive 90/539/EEC should include a reference to this Decision.

(16)

The dispatch from protection zones of meat, minced meat, mechanically separated meat, meat preparations and meat products from wild feathered game should be permitted subject to certain conditions, in particular as regards compliance with certain requirements of Regulation (EC) No 853/2004 and Regulation (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption (12).

(17)

Council Directive 2002/99/EC of 16 December 2002 laying down the animal health rules governing the production, processing, distribution and introduction of products of animal origin for human consumption (13) establishes a list of treatments rendering meat from restricted areas safe, provides for the possibility to establish a specific identification mark and sets out the identification mark required for meat not authorised for placing on the market for animal health reasons. It is appropriate to permit the dispatch from the protection zones of meat bearing the health mark provided for in that Directive and meat products subjected to treatment referred to therein.

(18)

Regulation (EC) No 2076/2005 provides for transitional measures allowing the use of a national identification mark for products of animal origin intended for human consumption which may only be marketed in the territory of the Member State where they are produced.

(19)

Regulation (EC) No 1774/2002 of the European Parliament and of the Council of 3 October 2002 laying down health rules concerning animal by-products not intended for human consumption (14) authorises the placing on the market of a range of animal by-products originating in areas of the Community under animal health restrictions, because those products are considered safe due to the specific conditions of production, processing and utilisation that effectively inactivate possible pathogens or prevent contact with susceptible animals.

(20)

Taking account of the measures in place following an outbreak of highly pathogenic avian influenza of the subtype H5N1 in a backyard poultry flock in Denmark and the establishment of areas A and B in accordance with Article 2(4)(b) and (c) of Decision 2006/135/EC these areas should continue to be listed in the Annex of this Decision and further areas A and B should be included following a recent outbreak of avian influenza of the subtype H5 in a geese flock in Hungary.

(21)

Decision 2006/135/EC should therefore be repealed and replaced by this Decision.

(22)

The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,

(a)

‘hatching eggs’ means eggs for incubation laid by poultry as defined in Article 2(4) of Directive 2005/94/EC;

(b)

‘wild feathered game’ means game as defined in point 1.5, second indent, and as far as avian species are concerned, in point 1.7 of Annex I to Regulation (EC) No 853/2004;

(c)

‘other captive birds’ means birds as defined in point 6 of Article 2 of Directive 2005/94/EC, including:

(a)

no live poultry and other captive birds, except birds referred to in Article 2(c)(i) and (ii), and hatching eggs of poultry, other captive birds, except those from birds referred to in Article 2(c)(ii), and of wild feathered game birds are dispatched from area B to the remaining part of the territory of the affected Member State, if applicable, or to other Member States or to third countries;

(b)

no products intended for human consumption derived from wild feathered game, are dispatched from areas A and B to the remaining part of the territory of the affected Member State, if applicable, or to other Member States and to third countries;

(c)

no animal by-products derived entirely or partially from avian species from areas A and B and subject to the provisions of Regulation (EC) No 1774/2002 are transported between areas A and B or dispatched from those areas to the remaining part of the territory of the affected Member State, if applicable, or to other Member States or to third countries;

(d)

no poultry or other captive birds are gathered at gatherings within area B such as fairs, markets or shows.