ISSN 1725-2423
Official Journal C 294 E
of the European Union
Volume 52 English edition Information and Notices 3 December 2009 Notice No Contents Page
European Parliament
2008-2009 SESSION Sittings of 8 to 10 July 2008 TEXTS ADOPTED The Minutes of this session have been published in OJ C 256 E, 9.10.2008.
I Resolutions, recommendations and opinions
RESOLUTIONS
European Parliament
Tuesday 8 July 2008
(2009/C 294 E/01) Defence of the prerogatives of the European Parliament before the national courts European Parliament resolution of 8 July 2008 on the defence of the prerogatives of the European Parliament before the national courts (2007/2205(INI)) ...... 1
(2009/C 294 E/02) Environmental impact of the planned gas pipeline in the Baltic Sea European Parliament resolution of 8 July 2008 on the environmental impact of the planned gas pipeline in the Baltic Sea to link up Russia and Germany (Petitions 0614/2007 and 0952/2006) (2007/2118(INI)) ...... 3
(2009/C 294 E/03) Stabilisation of Afghanistan: challenges for the EU and the international community European Parliament resolution of 8 July 2008 on stabilisation of Afghanistan: challenges for the EU and the international community (2007/2208(INI)) ...... 11
EN Notice No Contents (continued) Page
Wednesday 9 July 2008
(2009/C 294 E/04) Annual Action Programmes for Brazil for 2008 and for Argentina for 2008 European Parliament resolution of 9 July 2008 on the draft Commission decisions establishing Annual Action Programmes for Brazil for 2008 and for Argentina for 2008 ...... 19
(2009/C 294 E/05) EU priorities for the 63rd Session of the UN General Assembly European Parliament recommendation of 9 July 2008 to the Council on the EU priorities for the 63rd Session of the UN General Assembly (2008/2111(INI)) ...... 20
(2009/C 294 E/06) The role of the national judge in the European judicial system European Parliament resolution of 9 July 2008 on the role of the national judge in the European judicial system (2007/2027(INI)) ...... 27
(2009/C 294 E/07) Airbus/Boeing disputes European Parliament resolution of 9 July 2008 on the World Trade Organisation disputes between the European Union and the United States on alleged subsidies to Airbus and Boeing ...... 33
(2009/C 294 E/08) European strategic energy technology plan European Parliament resolution of 9 July 2008 on the European Strategic Energy Technology Plan (2008/2005(INI)) ...... 35
(2009/C 294 E/09) Sovereign Wealth Funds European Parliament resolution of 9 July 2008 on sovereign wealth funds ...... 41
(2009/C 294 E/10) Towards a new culture of urban mobility European Parliament resolution of 9 July 2008 on ‘Towards a new culture of urban mobility’ (2008/2041(INI)) 42
(2009/C 294 E/11) Report on the ECB annual report for 2007 European Parliament resolution of 9 July 2008 on the ECB annual report for 2007 (2008/2107(INI)) ...... 49
Thursday 10 July 2008
(2009/C 294 E/12) Census of the Roma on the basis of ethnicity in Italy European Parliament resolution of 10 July 2008 on the census of the Roma on the basis of ethnicity in Italy 54
(2009/C 294 E/13) Situation in China after the earthquake and before the Olympic Games European Parliament resolution of 10 July 2008 on the situation in China after the earthquake and before the Olympic Games ...... 58
(2009/C 294 E/14) The Commission's 2007 enlargement strategy paper European Parliament resolution of 10 July 2008 on the Commission's 2007 enlargement strategy paper (2007/2271(INI)) ...... 60
(2009/C 294 E/15) On the situation in Zimbabwe European Parliament resolution of 10 July 2008 on the situation in Zimbabwe ...... 64
EN 3.12.2009 EN Official Journal of the European Union C 294 E/1
Tuesday 8 July 2008
I
(Resolutions, recommendations and opinions)
RESOLUTIONS
EUROPEAN PARLIAMENT
Defence of the prerogatives of the European Parliament before the national courts P6_TA(2008)0327 European Parliament resolution of 8 July 2008 on the defence of the prerogatives of the European Parliament before the national courts (2007/2205(INI)) (2009/C 294 E/01)
The European Parliament,
— having regard to Rule 45 of its Rules of Procedure,
— having regard to the report of the Committee on Legal Affairs and the opinion of the Committee on Constitutional Affairs (A6-0222/2008),
A. whereas the European Parliament has no legal personality; whereas, as a result, it is often impeded in protecting its prerogatives before national courts from problems that are peculiar to its special nature,
B. whereas Parliament respects the right of initiative of the Commission but upholds its own right under Article 192 of the EC Treaty to request the Commission to submit legislative proposals,
C. whereas in this regard the European Parliament has at its disposal a range of remedies under the Treaty which ensure that the aforementioned prerogatives are protected vis-à-vis the other Community insti tutions, such as actions for failure to act (Article 232 of the EC Treaty) and actions for annulment of Community acts (Article 230 of the EC Treaty),
D. whereas, under the case-law of the Court of Justice, a Member State incurs liability for failure to fulfil its obligations under the Treaties, whatever the agency of that State whose action or inaction has caused the failure, even in the case of a constitutionally independent institution ( 1 ),
E. whereas, however, the European Parliament does not have the same direct instruments with which to defend its prerogatives before the national courts, especially in the event of a national judgment which runs counter to those prerogatives, since it can neither participate in national legal proceedings nor directly bring an action before the Court of Justice to defend its decisions,
( 1 ) Case 8/70 Commission v. Italy ECR [1970] 961. C 294 E/2 EN Official Journal of the European Union 3.12.2009
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F. whereas the European Parliament cannot even initiate, as a last resort, infringement proceedings (under Article 226 of the EC Treaty) against a Member State, since only the Commission has the power to do so,
G. whereas the lack of appropriate instruments with which to defend its own decisions effectively can hamper the effectiveness of the European Parliament as a political and legislative body,
H. whereas the principles of loyal cooperation between the institutions of the European Union and those of good administration call for the activities of Community bodies to be governed by rules of transparency and intelligibility in order to clarify the reasons for which a given action was or was not taken,
I. whereas, in order to obviate the abovementioned problems, it would be advisable to strengthen the measures to protect parliamentary prerogatives not by amending the EC Treaty but by attempting to extrapolate from the experience of the national parliaments remedies that are appropriate to the specific requirements of the European Parliament,
J. whereas the results of the study carried out to that end on a broad cross-section of Member States clearly show that most national legal orders grant their national parliaments legal remedies aimed at ensuring not only the defence of the interests of the parliament as a whole but also of each individual member,
K. whereas the Member States are subject to the principle of sincere and loyal cooperation enshrined in Article 10 of the Treaty establishing the European Community, and whereas, in the light of the case-law of the Court of Justice, those same Member States are required to ‘establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection’ ( 2),
L. whereas it would be opportune to grant the European Parliament similar, if not identical, instruments to protect its prerogatives vis-à-vis the judicial power, be that power represented by the Court of Justice or by the national courts, by analogy with the safeguards provided for by the national legal orders to the benefit of their national parliaments,
1. Calls on the Commission to take account of requests by the European Parliament to bring infringement proceedings against any Member State for breach of parliamentary prerogatives, and asks that it be given a comprehensive statement of reasons by the competent Commissioner should the College of Commissioners decide not to take the action requested;
2. Suggests that the Statute of the Court of Justice be amended in order to give the European Parliament the right to submit its observations to the Court in all cases in which, directly or indirectly, its prerogatives are called into question, so that the involvement of the European Parliament, where the latter is not formally a party to the proceedings, is not left to the discretion of the Court of Justice as currently provided for under Article 24(2) of the Statute;
3. Suggests that an in-depth examination be carried out into the question whether the legal mechanism laid down in Article 300(6) of the EC Treaty may be applied in cases in which the prerogatives of the European Parliament are seriously under threat, so as to allow Parliament to ask the Court of Justice for an opinion on the compatibility of a given act of national law with primary Community law, without prejudice to the exclusive power of the Commission to decide whether or not to initiate infringement proceedings against the Member State which may have committed an infringement;
4. Asks the committee responsible to prepare an amendment to Rule 121 of Parliament's Rules of Procedure so as to cover all legal proceedings before any court and to provide for a simplified procedure for use where proceedings are brought before the Court of Justice under an expedited or urgent procedure;
( 2 ) Case C-50/00P Unión de Pequeños Agricultores v. Council ECR [2002] I-6677. 3.12.2009 EN Official Journal of the European Union C 294 E/3
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5. Considers it advisable to foster a policy of cooperation between the European Parliament and national courts, along the lines of that which is already producing good results in a number of Member States, by developing court procedures which allow the European Parliament to take part in legal proceedings concerning Parliament's own prerogatives before national courts;
6. Calls on the Commission to propose the appropriate legislative measures in order to ensure the full effectiveness of the legal defence by Parliament of its prerogatives;
7. Instructs its President to forward this resolution to the Council and the Commission, and to the governments and parliaments of the Member States.
Environmental impact of the planned gas pipeline in the Baltic Sea P6_TA(2008)0336 European Parliament resolution of 8 July 2008 on the environmental impact of the planned gas pipeline in the Baltic Sea to link up Russia and Germany (Petitions 0614/2007 and 0952/2006) (2007/2118(INI)) (2009/C 294 E/02)
The European Parliament,
— having regard to Petition 0614/2007 by Radvile Morkunaite, bearing more than 20 000 signatures, Petition 0952/2006 by Krzysztof Mączkowski and the other petitions submitted to it on the issue covered by this resolution,
— having regard to the Lisbon Treaty signed by all the Member States on 13 December 2007,
— having regard to the communication from the Commission concerning the Thematic Strategy on the Protection and Conservation of the Marine Environment (COM(2005)0504),
— having regard to the Sixth Environmental Action Programme of the European Community ( 1 ),
— having regard to Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment ( 2 ), and to Council Directives 92/43/EEC ( 3 ) and 79/409/EEC ( 4), which latter directives form the Natura 2000 legislative package,
— having regard to its resolution of 14 November 2006 on a Thematic Strategy on the Protection and Conservation of the Marine Environment ( 5 ),
— having regard to its resolution of 16 November 2006 on a Baltic Sea Region Strategy for the Northern Dimension ( 6),
( 1 ) See Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environmental Action Programme (OJ L 242, 10.9.2002, p. 1.) ( 2 ) OJ L 73, 14.3.1997, p. 5. ( 3 ) OJ L 206, 22.7.1992, p. 7. ( 4 ) OJ L 103, 25.4.1979, p. 1. ( 5 ) OJ C 314 E, 21.12.2006, p. 131. ( 6 ) OJ C 314 E, 21.12.2006, p. 330. C 294 E/4 EN Official Journal of the European Union 3.12.2009
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— having regard to the Convention on the Protection of the Marine Environment of the Baltic Sea Area (the Helsinki Convention),
— having regard to the recommendations of the Helsinki Commission (Helcom), and in particular Recom mendation 17/3 of 12 March 1996 describing the requirement to conduct an environmental impact assessment and to consult with states that may suffer the adverse impact of a proposed project,
— having regard to the Convention on Environmental Impact Assessment in a Transboundary Context of 25 February 1991 (the Espoo Convention),
— having regard to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters of 25 June 1998 (the Aarhus Convention),
— having regard to the United Nations Convention on the Law of the Sea (Unclos),
— having regard to the precautionary principle, which is included by the case-law of the Court of Justice amongst the general principles of the acquis communautaire and which forms one of the aspects of sustainable development under EU law and international law,
— having regard to the principle of good governance, which constitutes one of the general principles of EU law,
— having regard to the activities of the European Parliament's Baltic Europe Intergroup,
— having regard to the proposals resulting from the public hearing of 29 January 2008,
— having regard to Decision No 1364/2006/EC of the European Parliament and of the Council of 6 September 2006 laying down guidelines for trans-European energy networks ( 1 ), which recognises that Nord Stream is a project of European interest,
— having regard to the Baltic Sea Action Plan adopted at a meeting of Baltic States Environment Ministers held in Kraków on 15 November 2007,
— having regard to Article 10 of the Treaty establishing the European Community, which imposes on Member States a duty of loyalty towards the Community,
— having regard to Rule 192(1) of the Rules of Procedure,
— having regard to the report of the Committee on Petitions and the opinions of the Committee on Foreign Affairs and the Committee on Industry, Research and Energy (A6-0225/2008),
A. whereas the Baltic Sea is a basin bordered by as many as eight European Union Member States and 80 % of its shore is European Union territory; whereas OAO Gazprom is the majority shareholder of Nord Stream,
B. whereas concern for the Baltic marine environment is one of the principal objectives of the Union's Northern Dimension, as repeatedly confirmed by Commission communications and Parliament resolutions,
C. whereas the agricultural and industrial sectors of all the bordering Member States and of Russia are the biggest polluters of the Baltic Sea and pose the greatest problems to its ecological balance,
D. whereas the Union is especially committed to environmental protection, including protection of the marine environment,
( 1 ) OJ L 262, 22.9.2006, p. 1. 3.12.2009 EN Official Journal of the European Union C 294 E/5
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E. whereas in proceedings before the Court of Justice the Commission has repeatedly confirmed that environmental protection is one the Community's key objectives and the Court has recognised the Community's competence in the area of protection and conservation of the marine environment,
F. whereas plans currently exist for the construction of numerous infrastructure projects in the Baltic Sea (Nord Stream, wind farms, the Scanled Baltic Pipe, a gas pipeline between Finland and Estonia, power cables between Sweden and Lithuania, LNG terminals in Świnoujścje, etc.),
G. whereas Europe needs to find ways to respond to the vital question of security of energy supply,
H. whereas the growing contribution of natural gas to the energy balance in Europe has been — especially since 1990 — the major single source of reduction of carbon dioxide (CO 2 ) emissions,
I. whereas the precautionary principle laid down in Article 174(2) of the EC Treaty requires all stake holders to make the necessary efforts to assess the environmental impact that new decisions or the commencement of works may have and to take appropriate preventive action where there is a reasonable likelihood of a threat to the environment,
J. whereas, in accordance with the principle that environmental protection requirements must be inte grated into sector-specific policies, due account should be taken of such requirements in the conduct of all Community activities and the pursuit of all Community goals,
K. whereas Article 194 of the future Treaty on the Functioning of the European Union, as inserted by the Treaty of Lisbon, explicitly states that EU energy policy should be conducted in a spirit of solidarity between Member States and with regard to the need to preserve and improve the environment,
L. whereas the particular vulnerability of the Baltic Sea to environmental threats has been confirmed by the International Maritime Organization, which has recognised it as an ‘extremely vulnerable area’,
M. whereas the Baltic Sea is today one of the world's most polluted maritime areas and whereas, in particular, the concentration of hazardous substances both in its waters and in its living organisms remains unnaturally high,
N. whereas the Baltic Sea is a typical inland sea as well as a shallow sea area and, together with the Black Sea, has the longest cycle of water exchange with the global ocean, at approximately 30 years,
O. whereas the lifetime of the gas transmission pipeline is estimated at 50 years and the magnitude of the work involved in decommissioning the pipeline system will be similar in scale to that of the planned installation; whereas this aspect should be weighed against the time needed for the complete resto ration of flora and fauna to their original state when considering the environmental and economic impact of the project,
P. whereas exposure to heavy metals, contaminants and other harmful substances entails health risks and food-chain implications that need to be examined,
Q. whereas a number of factors, including long water retention times, the stratified water column, the extensive, industrialised catchment area and the particular intensification of farming in the Baltic Sea area, make the Baltic Sea especially environmentally vulnerable,
R. whereas the performance of works under the special conditions obtaining in the Baltic Sea could result in a sudden increase in the algae population, which could pose a particular risk to Finland, Sweden, Germany and the Baltic States, C 294 E/6 EN Official Journal of the European Union 3.12.2009
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S. whereas a further significant environmental risk factor is the existence of approximately 80 000 tonnes of munitions dumped on the Baltic seabed after World War II, containing toxic substances such as mustard gas, sulphur yperite, nitrogen yperite, lewisite, Clark I, Clark II and adamsite, which represent a hazard both to the Baltic marine environment and to human life and health,
T. whereas munitions containers continued to be dumped by a number of states from 1945 until the late 1960s,
U. whereas, moreover, the munitions containers are in a critical condition, their corrosion having been estimated at 80 %, and whereas their exact location cannot always be determined,
V. whereas, at the same time, the Baltic Sea Action Plan adopted on 15 November 2007 in Kraków requires states bordering on the Baltic to ensure safe storage of old stocks of chemicals and devices containing hazardous substances,
W. taking account of the potential impact of the gas pipeline on the Baltic marine environment and on states bordering on the Baltic,
X. having regard to the increased traffic in terms of seafarers and oil tankers in the Baltic Sea and the potential fire hazard, the risk of loss of buoyancy and sinking of vessels resulting from a breakdown of the gas pipeline during its construction, installation and operation, and the potential human, economic and environmental impact thereof,
Y. whereas Nord Stream plans to construct a 1 200 km long and approximately 2 km wide undersea lane, which will thus become the largest undersea construction in the world,
Z. whereas fishing, tourism and shipping could be adversely affected by the construction, installation and operation of the project, having a probable negative impact on the economy of coastal regions,
AA. whereas Article 123 of Unclos, which forms an integral part of the acquis communautaire, requires states bordering semi-enclosed seas to cooperate with each other in the exercise of their rights and in the performance of their duties and to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment,
AB. whereas Article 2(1) of the Espoo Convention requires the parties thereto, either individually or jointly, to take all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impact from proposed activities,
AC. whereas under Article 5(a) of the Espoo Convention consultations with parties exposed to the harmful effects of transboundary projects may cover possible alternatives to a proposed project, including its abandonment,
AD. whereas Article 12 of the Helsinki Convention requires the parties thereto to take all measures in order to prevent pollution of the marine environment of the Baltic Sea area resulting from exploration or exploitation of the seabed or from any associated activities,
AE. whereas the proposed route of the North European gas pipeline will traverse areas which are included in the Natura 2000 programme and which Directive 92/43/EEC classifies as special areas of conser vation,
AF. whereas Article 6(2) of Directive 92/43/EEC requires Member States to take appropriate steps to avoid the deterioration of natural habitats and the habitats of species in special areas of conservation,
AG. whereas Article 6(3) of Directive 92/43/EEC requires Member States to undertake an appropriate assessment of the implications of any plan or project not directly connected with or necessary for the management of a conservation site but likely to have a significant effect thereon, in view of the site's conservation objectives, 3.12.2009 EN Official Journal of the European Union C 294 E/7
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AH. whereas under Article 6(3) of Directive 92/43/EEC, in the light of the conclusions of the above assessment, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public,
AI. whereas the proposed gas pipeline would be the longest dual sub-sea gas pipeline in the world, as well as the shallowest one, which makes it especially vulnerable to potential damage,
AJ. whereas Decision 1364/2006/EC includes the North European gas pipeline among priority projects of European interest,
AK. whereas every large-scale engineering structure erected in sea waters must, due to the associated risks, be subject to a particularly thorough and comprehensive analysis and environmental impact assessment as prescribed by the Espoo Convention, the Helcom Convention and all other pertinent European and national legislation,
AL. whereas, pursuant to the Espoo Convention, every project of this kind should be preceded by an analysis of its alternatives, covering in particular implementation costs and environmental safety, in this case an analysis of overland routes for the gas pipeline,
AM. whereas parts of the planned pipeline have already been transported to the town of Kotka in Finland for treatment,
AN. whereas Article 1 of the Aarhus Convention requires each party thereto to guarantee the rights of access to information, public participation in decision-making and access to justice in environmental matters,
AO. whereas the legal requirements relating to the preparation of an accurate environmental impact assessment must take into account all the above hazards,
AP. whereas, furthermore, it is necessary to analyse the terrorist threat and the capability for effective counteraction,
1. Is of the opinion that Nord Stream is an infrastructure project with a wide political and strategic dimension for both the EU and Russia; understands the concerns expressed by EU Member States regarding the construction and maintenance of the pipeline; emphasises that the ability of small littoral states to act as security providers in the Baltic Sea region cannot be seen in isolation from the EU's ability to act as a unified entity and to speak with one voice on energy issues, and recalls its resolution of 26 September 2007 on a common European foreign policy on energy ( 1); emphasises that Decision 1364/2006/EC (incor porating the TEN-E guidelines) recognises Nord Stream to be a project of European interest that would help to meet the EU's future energy needs; stresses that this project, together with other complementary pipelines, such as the Yamal II and Amber, should be planned in the spirit of a common European foreign policy on energy and should take fully into account their impact on the environment and on the security of the EU Member States;
2. Reiterates its opinion that, taking into consideration the increasing dependence of the EU on a limited number of energy sources, suppliers and transport routes, it is essential to support initiatives aimed at their diversification, both geographically and by developing sustainable alternatives; draws attention in particular to the need to support the development of port infrastructure used for the handling of fuels; recalls that Nord Stream is only one of a larger number of gas infrastructure projects, such as pipelines and LNG facilities, which will be essential to meet the Community's natural gas consumption needs that — according to numerous studies — will rise significantly over the coming years and which at the same time will make it possible to replace less environmentally friendly fossil fuels; considers it necessary to assess the long-term impact on the environment of the new gas infrastructure, with regard to the importance of guaranteeing a stable gas supply;
( 1 ) Texts adopted, P6_TA(2007)0413. C 294 E/8 EN Official Journal of the European Union 3.12.2009
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3. Supports the proposal, contained in Parliament's abovementioned resolution of 14 November 2006, that the EU's future marine strategy must result in binding supranational obligations which may involve common commitments in third countries;
4. Emphasises that energy security must be regarded as an essential component of the overall security of the European Union, whereby the definition of energy security should not merely be limited to the lack of internal EU production but should also take into account the geopolitical aspects of dependency on imports and the potential therein for politically motivated interruptions; believes that the Third Energy Package will reduce each Member State's energy dependence as no state can be disconnected from a third-country supplier in a fully liberalised and integrated energy market;
5. Considers that the challenge of securing energy supply while respecting the commitment to environ mental protection and sustainable development makes it imperative to implement a coherent and coor dinated European policy on supply of natural gas based on careful evaluation at European level of the environmental aspects of alternative solutions and on mutual solidarity between Member States;
6. Regrets the marginal role played by the EU in this project, in particular that of the Commission; points out that greater EU involvement would reduce the uncertainty felt by many Member States about the Nord Stream project;
7. Takes note of the opposition expressed by certain Member States to the pipeline project planned for the Baltic Sea area, which is a common asset of the states bordering the Baltic Sea, not a matter of bilateral relations between states; considers, therefore, that the project should be realised in cooperation with each of the states around the Baltic Sea in accordance with the Espoo Convention, the Helsinki Convention and other pertinent legal instruments; stresses the importance of Russia completing its ratification of the Espoo Convention;
8. Voices its opposition, in this connection, to the carrying-out of an investment on the proposed scale, without first having a positive environmental impact assessment;
9. Expresses its conviction that energy projects involving EU Member States and third countries should be subjects of common European interest and concern for the whole European Union and for its citizens;
10. Acknowledges that Nord Stream has been carrying out the ongoing environmental impact assessment to be submitted to the ‘Parties of origin’ as defined in the Espoo Convention (Russia, Finland, Sweden, Denmark and Germany) for their approval; urges the company to make the results of studies and the full set of research data concerning the ecological situation of the project site, collected during envi ronmental investigations, available not only to those States but also to Helcom and to all littoral states;
11. Emphasises that a long-term sustainable solution requires full transparency for all parties during both the construction and operating phases, and that confidence in this major project will be increased if the states bordering the Baltic Sea can monitor the work;
12. Calls, therefore, on the Commission and the Council to make a full commitment to analysing the environmental impact of the construction of the North European gas pipeline, particularly in situations involving considerations which require a Commission opinion, as specified in Article 6(4) of Directive 92/43/EEC;
13. Emphasises that the reciprocity principle must be fully respected as regards investment if the inter dependence between the EU and Russia is to develop into a partnership; notes that third countries benefit to a great extent from Europe's open market, but also that European investors in Russia are not accorded similar advantages; 3.12.2009 EN Official Journal of the European Union C 294 E/9
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14. Regrets the Commission's failure to accept the proposal contained in Parliament's abovementioned resolution of 16 November 2006 concerning the preparation of objective environmental impact assessments of proposed projects by the Commission, while reiterating its call for the preparation of such an assessment by an independent body to be appointed taking into consideration the opinions of all the littoral states;
15. Calls on the Council and the Commission to conduct a thorough assessment of the question whether the implementation of the project is in keeping with Community and international law;
16. Expresses its concern at the project timetable adopted by Nord Stream, the implementation of which will prevent a thorough analysis of the results of the environmental impact assessment by interested states, non-governmental organisations (NGOs) and Helcom experts; points out that a thorough analysis of the results of the environmental impact assessment needs an appropriate timetable;
17. Points out that carrying out work in an area of up to 2 400 km 2 in the Baltic Sea, requiring the use of a large number of vessels and other equipment, could represent a serious threat to biodiversity and to the number of habitats, as well as to the safety and smooth operation of shipping, in the region;
18. Expects that the possible interference by the pipeline with the seabed during the construction phase will be part of the environmental impact assessment;
19. Calls on the developer to include in its draft environmental impact assessment report comprehensive terms of reference by providing a clear description of the current environmental conditions in the site and by providing data on the site geomorphology in three-dimensional form;
20. Expresses profound concern at the reports that, before commissioning the gas pipeline, the investor intends to use a highly toxic compound known as glutaric aldehyde; calls on the investor to refrain from using this substance;
21. Calls on the Commission to conduct a reliable and independent environmental study examining the agricultural and industrial emissions polluting the Baltic Sea and to evaluate the situation in proportion to possible environmental threats caused by the pipelines currently crossing the Baltic Sea; in addition, calls on the Commission to evaluate the additional impact on the Baltic Sea caused by the Nord Stream project;
22. Calls on the developer to ensure that the construction and operation of the pipeline does not endanger the many species of fish and birds as well as the existence of a population of porpoises numbering only 600, which are a species unique to this geographical region;
23. Considers that the protection of the marine environment of the Baltic Sea is a component of the Northern Dimension of the EU, and should also be considered within the framework of the Baltic Sea Strategy where appropriate;
24. Notes that the prosperity of coastal regions and the competitiveness of their economies are highly susceptible to, and endangered by, spoilt coastal areas and the deterioration of the marine environment; points out that, given the extent to which coastal regions are affected by maritime activities and policies, long-term environmental sustainability is a precondition for the protection of their economic, social and environmental prosperity;
25. Points out the absence of any strategy to address structural failure and external threats to the security of the pipeline; emphasises the need to clearly define all aspects related to security and emergency response, including financial resources, actors, roles and procedures; C 294 E/10 EN Official Journal of the European Union 3.12.2009
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26. Emphasises that, given the growing EU gas demand, alternative gas pipeline routes should be analysed and promoted, taking into account environmental and economic aspects, including the timetable for such routes; notes that Nord Stream is required to submit an assessment of alternatives to the route chosen in the environmental impact assessment;
27. Calls on the Commission to undertake such an analysis in a dialogue with interested littoral states, the investor and Helcom, taking into consideration the opinions of relevant NGOs;
28. Stresses that the issue of economic compensation for any failures or damage must be perfectly clear before work can even begin; points out that a major failure in the pipeline could lead to complications for the states bordering the Baltic Sea and could be devastating for the marine environment; considers that Nord Stream should assume full liability for compensation;
29. Calls on the Commission and Member States to carry out a thorough assessment of the economic, budgetary and transparency-related aspects of the Nord Stream project and the firms involved in it;
30. Calls on the Commission to investigate the possibility, within the Northern Dimension partnership, of requiring the equivalent of ‘planning gain’ from Nord Stream in connection with possible regeneration projects in the Finno-Russian border area where the pipeline is proposed to commence or within the context of the Baltic Sea Strategy;
31. Takes note of the following decisions made by organs of the Member States:
— the Swedish Government's decision of 12 February 2008 requesting further documentation from Nord Stream AG due to significant procedural and substantive shortcomings and in particular the lack of an analysis of an alternative route and of the option of abandoning the construction of the pipeline;
— the position of the Lithuanian Parliament of 27 March 2007 pointing to the need to suspend the implementation of large-scale infrastructure projects in the Baltic Sea pending an in-depth analysis of alternative solutions together with independent and comprehensive environmental impact assessments;
— the Estonian Government's decision of 21 September 2007 not to grant permission for underwater studies to be conducted in Estonia's exclusive economic zone, owing to doubts about the scope and scale of those studies;
32. Regrets the fact that the Green Paper entitled ‘Towards a future Maritime Policy for the Union’ does not address the problem of large-scale projects such as sub-sea pipelines; regrets that in the legal instruments and communications concerning marine strategies initiated by it, the Commission usually passes over the problem of sub-sea pipelines, which is crucial from the point of view of both environmental protection and the EU's energy security;
33. Calls for an independent environmental impact assessment to be made available for in-depth consul tation with the relevant authorities and the general public of all littoral states;
34. Points out the importance of conducting a transparent communication strategy on steps concerning the results of the environmental impact assessment, and of communicating those results actively to all EU Member States, especially the Baltic littoral states;
35. Reiterates, therefore, its call in its abovementioned resolution of 14 November 2006 for the proposal of a mandatory mechanism for negotiation between Member States and its insistence that the Council take action at international level to develop mandatory environmental impact assessments in relations between the EU and third countries;
36. Notes that routing the North European gas pipeline should meet the strategic and economic objectives set out in Decision 1364/2006/EC whilst avoiding any environmental damage; 3.12.2009 EN Official Journal of the European Union C 294 E/11
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37. Calls on the Council, the Commission and the Member States to ensure that the construction of the Nord Stream gas pipeline fully complies with EU legislation on environmental impact assessments and with all international conventions;
38. Calls on the Commission in particular to ensure compliance with the provisions of the documents referred to above, namely Unclos, the Helsinki Convention, the Espoo Convention, the Aarhus Convention and Directives 85/337/EEC, 97/11/EC, 92/43/EEC and 79/409/EEC, as well as Article 10 of the EC Treaty and the precautionary principle and the principle of sustainable development, and to initiate proceedings under Article 226 of the EC Treaty in the event of failure to comply with the above obligations;
39. In light of Russia's current political situation and geopolitical ambitions, considers that it is of great importance that Russia show goodwill regarding cooperation in European energy policy; stresses the importance of Russia ratifying the Energy Charter Treaty and the Transit Protocol thereto, as such ratifi cation will reduce the potential for conflict over projects like Nord Stream;
40. Calls on the Commission, within the scope of its competence, to evaluate the market competition situation caused by the possible completion of the Nord Stream pipeline, and if necessary to take measures to prevent Gazprom from assuming a dominant role on the EU gas markets without guaranteeing reciprocal rights for EU companies to enter the Russian energy market;
41. Suggests the establishment of a system of common supervision of the pipeline, to include all countries in the Baltic Sea region; further suggests that the obligation to pay compensation for environ mental damage should lie solely with Nord Stream;
42. Notes the lack of institutional structures capable of responding adequately to the environmental and geopolitical security issues associated with this project; suggests, therefore, that the Commission should create an appropriate post to deal with current and future projects, functioning under the authority of the High Representative of the Union for Foreign Affairs and Security Policy and the Vice-President of the Commission;
43. Instructs its President to forward this resolution to the Commission, the Council and the governments and parliaments of the Member States.
Stabilisation of Afghanistan: challenges for the EU and the international community P6_TA(2008)0337 European Parliament resolution of 8 July 2008 on stabilisation of Afghanistan: challenges for the EU and the international community (2007/2208(INI)) (2009/C 294 E/03)
The European Parliament,
— having regard to its numerous previous resolutions on Afghanistan and, most recently, to its resolution of 18 January 2006 ( 1 ),
— having regard to the Afghanistan Compact agreed on at the London Conference on 1 February 2006 and to the recognition by the Afghan Government and the international community that the success of the Compact requires strong political, security and financial commitment to achieve the benchmarks within the agreed timelines, with the success of the Compact relying on an effective coordination and monitoring mechanism,
( 1 ) OJ C 287 E, 24.11.2006, p. 176. C 294 E/12 EN Official Journal of the European Union 3.12.2009
Tuesday 8 July 2008
— having regard to the Declaration by the Heads of State and Government of the Nations contributing to the International Security Assistance Force (ISAF) in Afghanistan, published at the NATO summit in Bucharest on 3 April 2008,
— having regard to the reports by the Secretary General of the UN, submitted on 21 September 2007 and 6 March 2008, on ‘The situation in Afghanistan and its implications for international peace and security’,
— having regard to the results of the International Conference in Support of Afghanistan, held in Paris on 12 June 2008,
— having regard to the Government of Afghanistan's National Drug Control Strategy launched at the abovementioned London Conference,
— having regard to its recommendation to the Council of 25 October 2007 on production of opium for medical purposes in Afghanistan ( 1 ),
— having regard to all the relevant Council conclusions, and in particular the GAERC conclusions of 10 March 2008, 29 April 2008 and 26-27 May 2008,
— having regard to Council Joint Action 2007/369/CFSP of 30 May 2007 on the establishment of the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) ( 2) and Council Joint Action 2007/733/CFSP of 13 November 2007 amending Joint Action 2007/369/CFSP ( 3),
— having regard to the general budget of the European Union for the financial year 2008 ( 4 ),
— having regard to the Commission's National Indicative Programme, earmarking EUR 600 million for the Islamic Republic of Afghanistan for the budget years 2007-2010,
— having regard to the visit of the delegation from the lower house of the Afghan Parliament (Wolesi Jirga) to the European Parliament on 26-30 November 2007,
— having regard to Rule 45 of its Rules of Procedure,
— having regard to the report of the Committee on Foreign Affairs and the opinion of the Committee on Development (A6-0269/2008),
A. whereas Afghanistan is at a crossroads, as evidenced by the rise in terrorist acts and violent insurgency, a seriously deteriorating security situation, increased opium production and growing popular discontent over corruption and government failures; whereas, despite the efforts of the international community and the partial success as regards civil reconstruction, the living conditions of considerable sections of the Afghan population have not improved; whereas the current threat Afghanistan is facing requires short-term action but long-term solutions will only come about through comprehensive improvements in governance and the emergence of a stronger state,
B. whereas the United States — with support from the United Kingdom — began ‘Operation Enduring Freedom’ on 7 October 2001; whereas four other EU Member States — the Czech Republic, France, Poland and Romania — are among the coalition forces participating in the operation; whereas apart from Cyprus and Malta all EU Member States contribute a total of more than 21 500 troops to the NATO-led ISAF mission; whereas the first provincial reconstruction teams (PRTs) started in late 2001 and there are currently approximately 25 PRTs operating in the entire country,
( 1 ) Texts adopted, P6_TA(2007)0485. ( 2 ) OJ L 139, 31.5.2007, p. 33. ( 3 ) OJ L 295, 14.11.2007, p. 31. ( 4 ) OJ L 71, 14.3.2008. 3.12.2009 EN Official Journal of the European Union C 294 E/13
Tuesday 8 July 2008
C. whereas there is a considerable discrepancy between the amount of money the international community is spending on military operations, on the one hand, and on civil reconstruction and humanitarian assistance, on the other,
D. whereas more than half of the inhabitants of Afghanistan are living below the poverty line and the country's economy is one of the weakest in the world, with unemployment reaching 40 %,
E. whereas Afghanistan's health care sector has started to produce the first promising results, such as a 24 % decline in the infant mortality rate since the fall of the Taliban, a higher number of babies living beyond their first birthday and a higher percentage of Afghans with direct access to primary health care,
F. whereas Afghanistan's educational system is showing the first signs of positive developments, such as an increasing number of children and particularly girls, students and teachers who have returned to school, the ongoing rehabilitation of primary schools and training for teachers,
G. whereas, although there are no official figures on civilian deaths in Afghanistan, the UN Secretary- General's report of 6 March 2008 on the situation in Afghanistan points out that ‘in 2007 the level of insurgent and terrorist activity increased sharply from that of the previous year. An average of 566 incidents per month was recorded in 2007, compared to 425 per month in the previous year. Of the over 8 000 conflict-related fatalities in 2007, over 1 500 were civilians’ — the highest casualty figure since the overthrow of the Taliban in 2001,
H. whereas the new Afghan Constitution does not guarantee full religious freedom, since abandoning Islam remains a punishable offence,
I. whereas the Joint Coordination and Monitoring Board for Afghanistan meeting on 5-6 February 2008 in Tokyo began to prepare an international conference to review progress in the implementation of the Afghanistan Compact adopted by the abovementioned London Conference,
J. whereas the 2008 Afghanistan Opium Winter Rapid Assessment Survey (carried out by the United Nations Office on Drugs and Crime (UNODC)) confirms the trends of the 2007 survey, according to which the number of opium-free provinces in the north and centre might grow but the level of cultivation in the south and west is likely to increase; whereas the 2007 report on the one hand repeats the misconception that provinces with little or no poppy cultivation are ‘opium-free’ but emphasises on the other hand the link between insecurity and narcotics production; whereas the core tools of a counter-narcotics policy are crop eradication, interdiction (which is much more complex than arresting traffickers), and development (alternative livelihoods) pursued simultaneously,
K. whereas under the US secret detention programme hundreds of Afghan prisoners remain detained in various prison facilities, such as the Bagram military base and Guantanamo, in violation of international humanitarian and human rights law; whereas prisoners in Afghan custody continue to be faced with a law enforcement system that lacks the minimum standards of the rule of law and respect for funda mental human rights,
1. Takes the view that as a result of the last 30 years of Afghan history, characterised by Soviet occupation, the fighting between various Mujahideen factions and repression under the Taliban regime, the country has started an important and complicated reconstruction of its society and must continue to strengthen its institutions and to provide better for the basic needs of its citizens in such areas as education, housing, health, nutrition and public safety; welcomes the efforts and progress made since 2002 by the Afghan people towards establishing the rule of law and democracy and the search for stability; C 294 E/14 EN Official Journal of the European Union 3.12.2009
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2. Is convinced that the country has become a test case for international development assistance and bi- and multilateral cooperation; stresses the need for the international community to continue to work with the Afghan Government and the people of Afghanistan in order to demonstrate its ability to end the vicious circle of violence and poverty and to give the country the prospect of sustainable peace and development; calls on the Council and the Commission to bring forward an initiative for an international council comprising the main donors and UN organisations, possibly led by the United Nations Assistance Mission in Afghanistan and based on the concept of the UN Peacebuilding Commission, in order to harmonise the different reconstruction efforts in Afghanistan;
3. Draws attention to the lasting effects of the wars that have taken place in the country, the millions of victims, the disabled, refugees and displaced persons and the material costs resulting from the destruction of almost all the main infrastructure;
4. Condemns in the strongest possible terms the terrorist attack on the Indian Embassy in Kabul on 7 July 2008, which caused more than 40 deaths, including those of four members of Embassy staff; expresses its sincerest sympathy for the relatives, the wounded and the Afghan and Indian Governments;
5. Considers that the Afghanistan-Pakistan relationship has been the source of much of the region's instability, and therefore concludes that stabilising the region requires a comprehensive policy geared to that relationship; hopes that, with the new government in Pakistan, the improvement of the bilateral relationship will receive a fresh impetus; believes, however, that without the active engagement and assistance of the international community, the two countries will not be able to extricate themselves from their difficult bilateral relationship; recognises that security in Afghanistan hinges to a very large extent on the demo cratisation of Pakistan; urges the international community to initiate and support measures to lessen tensions between Afghanistan and Pakistan, including a long-term programme to stabilise and develop the cross-border region involving stakeholders on both sides;
6. Welcomes the efforts and progress made since 2002 by the Afghan people and institutions towards establishing the rule of law and democracy and the search for stability; considers these achievements to be extremely important with regard to the structural problems of a lack of legality and respect for human dignity that characterised Afghanistan under the Soviet regime and the Taliban;
7. Considers, in particular, that the massive turnout at the country's various elections attests to the desire of the women and men of Afghanistan to help establish a country based on the principles of active and participatory democracy; stresses that these elections have provided an example in the regional context and for developing countries experiencing serious armed conflicts;
8. Stresses the need for Afghanistan's institutions to continue to fight against all forms of corruption and to put in place effective policies to improve social conditions for the population;
9. Notes that in Afghanistan the EU is primarily known as a humanitarian organisation, but considers that there is also a need for the EU to be seen as having a stronger political influence and therefore calls on the Commission to propose strategies whereby, mindful of the natural sovereignty of the Afghan people, the EU might strengthen its visibility when empowering the civil, political and bureaucratic apparatus, until the governmental infrastructure has advanced into an era of greater stability and permanence;
10. Stresses the need for the international community to better coordinate its efforts to provide efficient and sustainable civilian aid; therefore also calls for a balanced budget allocating sufficient funds for civil reconstruction and humanitarian assistance, inasmuch as the creation of security and respect for the rule of law are matters of core importance; 3.12.2009 EN Official Journal of the European Union C 294 E/15
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11. Welcomes the fact that the abovementioned International Conference of 12 June 2008 not only saw pledges of a further USD 21 billion but also reviewed the procedures needed to make international aid more effectively and precisely oriented towards priorities and to prevent corruption;
12. Emphasises that a major strengthening of political will and commitment is necessary, and that this should be followed up not only by a willingness to provide additional combat troops in the most difficult areas, unrestricted by national caveats, but also by urgent and intensified civil reconstruction efforts, in order to consolidate achievements and restore the confidence of the Afghan population on a long-term and sustainable basis; considers in particular that ‘Operation Enduring Freedom’ could be perceived as counter productive if the military pressure on the insurgents is not matched by a strengthened political process through which the Afghan authorities reach out to all segments of the population that recognise the Constitution and lay down their weapons; in this regard, also notes that the humanitarian community — comprising the UN and non-governmental organisations — needs to enhance coordination, avoid ad hoc initiatives and develop preparedness and contingency planning;
13. Stresses that European Union should use the experience and expertise of its missions and of those Member States that already have a military or civilian presence on Afghanistan territory, in the process of the stabilisation and reconstruction of Afghanistan;
14. Supports the efforts of NATO forces to improve security in the country and tackle local and inter national terrorism, and considers the presence of these forces to be essential in order to ensure the country's future;
15. Urges the EU and its Member States to support the efforts to combat terrorism, religious extremism, ethnic extremism, ethnic separatism and all actions aimed at subverting the territorial integrity, state unity and national sovereignty of Afghanistan;
16. Draws attention to the idea that the EU and its Member States should support Afghanistan in the construction of its own state, with stronger democratic institutions capable of ensuring national sovereignty, state unity, territorial integrity, sustainable economic development and the prosperity of the people of Afghanistan, and respecting the historical, religious, spiritual and cultural traditions of all ethnic and religious communities situated on Afghan territory;
17. Notes that redevelopment needs are important throughout Afghanistan, but that aid distribution and security pose particular problems in the Pashtun-dominated area, and therefore calls for the reconstruction activities in southern Afghanistan to be speeded up;
18. Draws attention to the fact that the EU should encourage and help European investors to be involved in rebuilding Afghanistan, to be present on the ground and to develop businesses there;
19. Points out that the main problems facing the country are restoring security and establishing a functioning state; notes that Afghanistan's security problems are more complex than just a war on terror and that they therefore require more than a military solution; points out that security and the rule of law are interdependent, which in turn creates an atmosphere conducive to human development, and that strengthening the rule of law is necessary in order to enable the country's citizens to make economic and social choices that will allow them to live meaningful and healthy lives, when supplemented by measures aimed at restoring a functioning state in order to protect the rule of law, secure access to basic public services and ensure equal opportunities for its people;
20. Welcomes the commitment expressed in the Afghanistan Compact ‘to work towards a stable and prosperous Afghanistan, with good governance and human rights protection for all under the rule of law’; takes the view that in the absence of clear priorities or sequencing the Compact should have defined guidelines on how to achieve these ambitious goals, and stresses, therefore, the need for donors to ensure that their programmes are aligned with such priorities at the central and provincial levels and that the resources allocated are appropriate and effectively disbursed; C 294 E/16 EN Official Journal of the European Union 3.12.2009
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21. Stresses the urgent need to develop a balanced and sustainable approach to security sector reform, providing for a professional national army and police force; stresses that the Afghan judicial system is in dire need of investment and that there is an urgent need to focus on upgrading its capacity and capability;
22. Draws attention to the fact that, despite some achievements to date, the overall outcome of police reform efforts during the past five years has been disappointing, demonstrating the serious difficulties facing the international community on the ground when it comes to institution building; urges the international community in general, and the EU police mission in particular, to continue their efforts to develop Afghanistan's own police force, characterised by respect for human rights and the rule of law;
23. Draws attention to the fact that the EUPOL mandate provides for tasks to ‘support linkages between the police and the wider rule of law’, and therefore calls on the Council and the Commission to continue to closely coordinate their respective activities in order to ensure that the EU's policies are more coherent and efficient; considers it equally important for the EU to increase considerably the resources envisaged for EUPOL, in terms of both personnel and financing; highlights the fact that a comprehensive reform of the Afghan Ministry of Interior is indispensable and that this is first and foremost a political task and to a lesser extent a technical problem, inasmuch as, without it, the police reform efforts will fail, and therefore attaches great importance to another aim of EUPOL, namely to ‘monitor, mentor, advise and train at the level of the Afghan Ministry of Interior, regions and provinces’; expresses its support for the EUR 2.5 million programme under the Stability Instrument ( 1 ) concerning measures to reform the appointment of judges and prosecutors, and expects that this pilot scheme will serve to develop a substantial long-term justice sector reform programme for 2009;
24. Draws attention to the fact that the EUPOL mission has yet to reach full strength more than a year after being launched on 15 June 2007, and notes that even when fully deployed it will consist of only 195 personnel supervising high-level decisions in Kabul and provincial centres; takes account of the recent statement by the Afghan Foreign Minister that at least 700 extra trainers are urgently needed in the country, and of the contribution this shortage has made to a situation in which mortality rates are significantly higher for the police than the army; points out that the German government has offered to increase its own contribution from 60 to 120 trainers if similar commitments are given by other EU countries; calls for greater coordination between EU and US efforts in relation to the training of the Afghan civil police;
25. Calls on the Council and the Commission to commit themselves, in the context of the programme of assistance for Afghanistan, to reform of the legal system, with the aim of professionalising the Afghan judiciary through its main institutions, concentrating on the Supreme Court, the Public Prosecutor's Office and the Ministry of Justice, with the aim of safeguarding defendants’ rights, providing the necessary legal aid to vulnerable groups, and guaranteeing the rights of the defence; calls for compliance with UN General Assembly resolution 62/149 of 18 December 2007 on a moratorium on the use of the death penalty to be one of the priorities of European efforts to reform the justice system in Afghanistan;
26. Strongly believes that the PRTs should concentrate on specific objectives related to security, training and working with the Afghan police and military, and supporting the reach of the central government into insecure areas; stresses the need to redefine the role of the PRTs, particularly as regards the coordination and exchange of best practices between them; is convinced that, although security and development are inter dependent in Afghanistan, there is a clear demarcation between military and humanitarian action that should be maintained, and that security and development professionals should therefore play to their strengths and their professional expertise; believes that the numbers of Afghans working in PRTs should be boosted and that local ownership should be enhanced as much as possible;
( 1 ) Regulation (EC) No 1717/2006 of the European Parliament and of the Council of 15 November 2006 establishing an Instrument for Stability (OJ L 327, 24.11.2006, p. 1.) 3.12.2009 EN Official Journal of the European Union C 294 E/17
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27. Strongly supports the view that there is an urgent need to develop and strengthen the nascent civil society in Afghanistan, and that a great deal of time and effort will be required in order to develop gradually a broad awareness of the importance of human rights, democracy and fundamental freedoms, and in particular gender equality, education and the protection of minorities; stresses that a strong civil society can only develop in a political environment that is characterised by stable and efficient institutions and well- organised political parties; considers that, in order to overcome the culture of violence prevailing in Afghan society, the international donor community should lend financial and technical support to local projects aimed at reconciliation; believes that the European Union must play an increasing role in supporting Afghan civil society; underlines the need for the Afghan Parliament and civil society to be fully involved in the programming of EU development cooperation, and particularly in the drafting of Country Strategy Papers and Annual Action Plans;
28. Believes that the strengthening of Afghan civil society will only be successful if all ethnic and religious groups are represented and heard, which also includes cooperation with traditional tribal leaders (as already practised in the so-called ‘Tribal Liaison Offices’);
29. Emphasises that media freedom is essential in creating a democratic society; is very concerned about the rising number of attacks on journalists, and calls on the Afghan authorities to seriously investigate these violations; welcomes the work of the independent media in Afghanistan, which have re-established a core of information pluralism in the country after decades in which all freedom of expression was absent; considers freedom of the press and freedom of expression to be essential conditions for the country's social devel opment and for relations between Afghanistan and the European Union; expresses its concern about President Karzai's refusal to sign the draft media law on 15 December 2007 following its approval in the two houses of parliament; calls on the President to clarify the status of the draft media law and recalls the government's commitment in the Afghanistan Compact to develop ‘independent and pluralistic’ media; expresses its concern at the state of freedom of expression, jeopardised by the sentencing of independent journalists and bloggers, and calls on the Afghan Government to undertake to guarantee effective freedom of speech for all its citizens, starting with the defence of Internet freedom;
30. Emphasises the importance of a forward-looking mass media law for the development of a more inclusive, tolerant and democratic society that is mindful of the country's religious and cultural values without curtailing the activities and independence of the media on the pretext of national security or religion and culture;
31. Expresses its concern for the physical integrity of Ms Malalai Joya, Member of the Wolesi Jirga, and calls on the Afghan authorities to guarantee her protection; calls on the Afghan authorities to release Latif Pedram, founder of the National Congress Party of Afghanistan, from his house arrest, to dismiss the charges against him and to give assurances about his security;
32. Reiterates its call on the Afghan authorities to introduce the moratorium on the death penalty; expresses its utmost concern for the life of Perwiz Kambakhsh and dozens of other individuals who are facing the death penalty in a judicial system which is not yet able to ensure a fair trial, and calls on President Karzai to commute their sentences;
33. Welcomes Afghanistan's progress in improving women's political representation; expresses its soli darity with all women in the country who are struggling to defend and promote their rights; remains concerned about the huge income disparities between men and women, the very low literacy rate of women, the injustices — induced by cultural practices — suffered by women and girls, both in the denial by family members and communities of access for women to basic services such as health care and education and in the lack of employment opportunities, as well as high levels of domestic violence and discrimination; stresses the urgent need for measures aimed at protecting the rights of women to be built into legal and political reform; calls on the Council and the Commission to lend active support to such an initiative and to earmark funds for measures such as active steps to increase the enrolment of girls in schools and the recruitment of female teachers, which will help build the country's capacity to protect the rights of women, girls and children, since the latter are also victims of domestic violence, sexual exploitation induced by cultural practices and exploitative labour and trafficking; calls, further, for specific measures to address the problems facing Afghan women in the sectors of health and education; C 294 E/18 EN Official Journal of the European Union 3.12.2009
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34. Draws attention to the fact that the Office of the UN High Commissioner for Refugees has helped 3,69 million Afghan refugees to return to Afghanistan since March 2002, marking the largest assisted return operation in its history, but that, despite these returns, approximately 3,5 million registered and unregistered Afghans still remain in Pakistan and Iran; is concerned about the decline in funding for Afghan refugees, and underlines that maintaining a successful repatriation programme is likely to become more expensive, as the refugees remaining in Pakistan and Iran have less in the way of resources and weaker ties to Afghanistan than those who returned earlier; stresses that the safe and voluntary return of Afghan refugees and displaced persons should remain a high priority for Afghanistan and the international community; calls on the Commission and the Member States to increase funding for refugee reintegration;
35. Expresses its deep concern about the ever-expanding cultivation and trafficking of opium, which has serious political and national security implications in Afghanistan and neighbouring countries; stresses that the opium economy continues to be a source of corruption and undermines public institutions, particularly those in the security and justice sectors; since there is no obvious ‘quick fix’ solution, and since repressive measures aimed at crop eradication cannot on their own yield the expected results, calls on the international community led by the Afghan government to develop a long-term strategy aimed primarily at compre hensive rural development, including the establishment of the necessary infrastructure and functioning administrative institutions; welcomes the increased dialogue between Afghanistan, Iran and the international community on ways to curtail opium production and exports;
36. Calls on the US Government to abandon its crop eradication policy and notably the use of ‘Roundup’ for aerial sprayings, a substance which is associated with serious environmental and health hazards, inasmuch as targeting poppy farmers will only fuel resentment against the international troop presence;
37. Is concerned about the major social and health problems caused by drug addiction in general, and the social and economic consequences for addicted Afghan women in particular; refers to a UNODC survey of 2005 according to which there were 920 000 drug users in Afghanistan, of which 120 000 were women; highlights the statement contained in the survey that, instead of viewing drug addiction as a social problem, Afghan society views it as an individual problem, and many women use drugs for medical purposes to alleviate and remedy a range of physical and psychological problems; notes that, although severe punishments are prescribed for growing, smuggling and using drugs, the government of Afghanistan is currently unable to enforce the laws in that regard; urges the Afghan government and the international community to devise, finance and implement appropriate programmes, activities and awareness-raising campaigns targeting addicted women and their families;
38. Supports the Commission's efforts to help Afghanistan and calls on the Commission to regularly evaluate the effectiveness of European Union financial assistance, in particular the Commission's contribution to the Trust Funds, in order to achieve greater transparency; urges the Commission to keep Parliament adequately informed about the results of such evaluation;
39. Recalls the European Parliament's initiative, under its 2008 budget, to support democracy-building with parliaments in third countries, and resolves to make use of it for capacity-building and technical assistance aimed at improving the ability of the Afghan Parliament to legislate and to monitor the executive branch, especially by upholding the rule of law and respect for human rights, and women's rights in particular;
40. Instructs its President to forward this resolution to the Council and the Commission, to the Secretary-General of the United Nations and the Secretary General of NATO, and to the governments and parliaments of the Member States and of the Islamic Republic of Afghanistan. 3.12.2009 EN Official Journal of the European Union C 294 E/19
Wednesday 9 July 2008
Annual Action Programmes for Brazil for 2008 and for Argentina for 2008 P6_TA(2008)0338 European Parliament resolution of 9 July 2008 on the draft Commission decisions establishing Annual Action Programmes for Brazil for 2008 and for Argentina for 2008 (2009/C 294 E/04)
The European Parliament,
— having regard to Regulation (EC) No 1905/2006 of the European Parliament and of the Council of 18 December 2006 establishing a financing instrument for development cooperation ( 1),
— having regard to the draft Commission decisions establishing Annual Action Programmes for Brazil and for Argentina for 2008 (CMTD-2008-0263 — D000422-01, CMTD-2008-0263 — D000421-01),
— having regard to the opinion delivered on 10 June 2008 by the committee referred to in Article 35(1) of Regulation (EC) No 1905/2006 (‘the Development Cooperation Instrument (DCI) Management Committee’),
— having regard to Article 8 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission ( 2),
— having regard to the Agreement between the European Parliament and the Commission of 3 June 2008 on procedures for implementing Council Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, as amended by Decision 2006/512/EC ( 3),
— having regard to Rule 81 of its Rules of Procedure,
A. whereas, on 10 June 2008, the DCI Management Committee voted in favour of the draft Annual Action Programmes (AAPs) for Brazil for 2008 and for Argentina for 2008 (CMTD-2008-0263 — D000422- 01, CMTD-2008-0263 — D000421-01),
B. whereas, pursuant to Article 7(3) of Decision 1999/468/EC and Article 1 of the abovementioned Agreement of 3 June 2008, Parliament received the draft implementing measures submitted to the DCI Management Committee and the results of voting,
C. whereas Article 2(1) of Regulation (EC) No 1905/2006 stipulates that ‘the primary and overarching objective of cooperation under this Regulation shall be the eradication of poverty in partner countries and regions in the context of sustainable development’,
D. whereas Article 2(4) of Regulation (EC) No 1905/2006 stipulates that ‘measures referred to in Article 1(1) ( 4 ) shall be designed so as to fulfil the criteria for Official Development Assistance (ODA) established by the Development Assistance Committee of the Organisation for Economic Cooperation and Development (OECD/DAC)’,
E. whereas, in its Reporting Directives for the Creditor Reporting System (DCD/DAC (2002)21), the OECD/DAC defines ODA as financial flows to countries on the DAC List of Aid Recipients for which, inter alia, ‘each transaction is administered with the promotion of the economic development and welfare of developing countries as its main objective’,
( 1 ) OJ L 378, 27.12.2006, p. 41. ( 2 ) OJ L 184, 17.7.1999, p. 23. ( 3 ) OJ C 143, 10.6.2008, p. 1. ( 4 ) Article 1(1): ‘The Community shall finance measures aimed at supporting cooperation with developing countries, territories and regions (…).’. C 294 E/20 EN Official Journal of the European Union 3.12.2009
Wednesday 9 July 2008
Brazil 1. Notes that the draft AAP for Brazil for 2008 contains the Academic Mobility Programme for Brazil 2008-2010 (which is the Erasmus Mundus External Cooperation Window for Brazil) as the only action, that this action comes under the Country Strategy Paper's priority sector I entitled ‘Enhancing bilateral relations, Action 2: Higher education programme for Brazil’ and that the financing for mobility of EU national students and academic staff (up to 30 % of the total funding for individual mobility for students and staff) is provided for as an important element of the AAP for Brazil for 2008;
Argentina 2. Notes that the draft AAP for Argentina for 2008 contains the Erasmus Mundus External Cooperation Window for Argentina as the only action, that this action comes under the Country Strategy Paper's focal sector entitled ‘Strengthening of bilateral relations and mutual understanding between the EC and Argentina’ and that the financing of mobility of EU national students and academic staff (up to 30 % of the total funding for individual mobility for students and staff) is provided for as an important element of the AAP for Argentina for 2008;
* * *
3. Takes the view that the Commission, therewith, exceeds, in the AAP for Brazil for 2008 and in the AAP for Argentina for 2008, its implementing powers laid down in the basic act, given that the above mentioned elements are not in compliance with Article 2(1) and (4) of Regulation (EC) No 1905/2006, as the primary objective of these elements is not the eradication of poverty, and as these elements do not fulfil the criteria for ODA established by the OECD/DAC ( 1);
4. Calls on the Commission to withdraw its draft decisions establishing AAPs for Brazil for 2008 and for Argentina for 2008 and to submit to the DCI Management Committee new draft decisions fully respecting the provisions of Regulation (EC) No 1905/2006;
5. Instructs its President to forward this resolution to the Council, the Commission, and the governments and parliaments of the Member States.
( 1 ) Namely, that ‘each transaction is administered with the promotion of the economic development and welfare of developing countries as its main objective’ (OECD/DAC Fact Sheet of October 2006, ‘Is it ODA?’, p. 1).
EU priorities for the 63rd Session of the UN General Assembly P6_TA(2008)0339 European Parliament recommendation of 9 July 2008 to the Council on the EU priorities for the 63rd Session of the UN General Assembly (2008/2111(INI)) (2009/C 294 E/05)
The European Parliament,
— having regard to the proposal by Alexander Lambsdorff and Annemie Neyts-Uyttebroeck on behalf of the ALDE Group for a recommendation to the Council on the 63rd session of the United Nations (UN) General Assembly (B6-0176/2008),
— having regard to the UN Secretary-General's 2005 report entitled ‘In larger Freedom’, the subsequent Resolution 60/1 of the UN General Assembly on the 2005 World Summit Outcome and the UN Secretary-General's report of 7 March 2006 entitled ‘Investing in the United Nations: for a stronger Organization worldwide’, 3.12.2009 EN Official Journal of the European Union C 294 E/21
Wednesday 9 July 2008
— having regard to the EU Priorities for the 62nd General Assembly of the UN,
— having regard to its resolutions of 29 January 2004 on the relations between the European Union and the United Nations ( 1 ), of 9 June 2005 on the reform of the United Nations ( 2 ) and of 29 September 2005 on the outcome of the United Nations World Summit of 14-16 September 2005 ( 3 ),
— having regard to the preliminary list of items to be included in the provisional agenda of the 63rd regular session of the General Assembly of 11 February 2008 and specifically to the items headed ‘Maintenance of international peace and security’, ‘Development of Africa’, ‘Promotion of Human Rights’ and ‘Management Reform’,
— having regard to the results of the Ninth Meeting of the Conference of the Parties to the UN Convention on Biological Diversity (COP 9), held from 19 to 30 May 2008 in Bonn,
— having regard to the 2009 Review Conference of the Rome Statute of the International Criminal Court,
— having regard to Rule 114(3) and Rule 90 of its Rules of Procedure,
— having regard to the report of the Committee on Foreign Affairs (A6-0265/2008),
A. whereas the EU's foreign policy is based on strong and unequivocal support for effective multilateralism, as embodied in the UN Charter,
B. whereas the EU is a key political and financial partner of the UN in fighting poverty and promoting economic and social development, providing collective security, including protecting the livelihood of endangered populations, and upholding human rights throughout the world,
C. whereas the reform agenda of the UN, which encompasses the establishment of new bodies, the radical overhaul of others, the reshaping of the management of its ground operations, the reorganisation of its assistance delivery and an in-depth reform of its Secretariat, is extremely ambitious and requires continuous political support, particularly at a time when, following the definition of the new policy framework, the implementation stage has started,
D. whereas two new key bodies, the Human Rights Council and the Peacebuilding Commission (PBC), have entered a crucial phase, in which they have to prove their ability to achieve the goals respectively set for them by the UN Member States,
E. whereas the long overdue reform of the UN Security Council has yet to be achieved, given the sensi tivities involved and the tension between greater accountability and increased geopolitical balance, on the one hand, and the need to ensure the efficiency and effectiveness of that body, on the other hand,
F. whereas 2008 is a crucial year for the efforts to eradicate poverty and achieve the Millennium Devel opment Goals (MDGs) worldwide by 2015, and whereas EU Member States should provide global leadership ahead of the relevant key meetings to be held in the second half of this year,
G. whereas, with regard to the achievement of the MDGs, EU efforts serve as an important catalyst and an example to other donors but will nevertheless, if current trends are not reversed, still fall short, by EUR 75 billion, of the EU's official development aid commitments by 2010,
H. whereas in sub-Saharan Africa many countries are not on track to meet any of the MDGs, and whereas in many middle-income countries too there are regions and ethnic groups made up of millions of people who are making unsatisfactory progress towards meeting the targets,
( 1 ) OJ C 96 E, 21.4.2004, p. 79. ( 2 ) OJ C 124 E, 25.5.2006, p. 549. ( 3 ) OJ C 227 E, 21.9.2006, p. 582. C 294 E/22 EN Official Journal of the European Union 3.12.2009
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I. whereas soaring food prices and slowing global growth threaten to set back progress on the MDGs by an estimated seven years unless further investment is made in the agricultural sector and the agro-food industry in developing countries,
J. whereas the UN General Assembly decided to hold on 4 and 5 October 2007 the High-level Dialogue on interreligious and intercultural cooperation for the promotion of tolerance, understanding and universal respect on matters of freedom of religion or belief and cultural diversity, in coordination with other similar initiatives in this area,
K. whereas 2008 is the European Year of Intercultural Dialogue,
L. whereas the agenda of the UN General Assembly is not yet sufficiently focused and streamlined, which it needs to be in order to make the work of that body more consistent and to facilitate the follow-up of its resolutions,
M. whereas the UN Department for Peacekeeping Operations currently manages 20 field operations involving over 100 000 troops, half of which are deployed in Africa,
N. whereas the degree of coordination of EU Member States' positions within the UN varies from body to body and from policy to policy,
O. whereas such coordination should not be achieved to the detriment of negotiations with countries from other geopolitical blocs, which are an essential prerequisite for striking necessary alliances within the UN,
P. whereas such coordination requires closer cooperation between the relevant Brussels-based working groups of the Council and the EU Offices and the EU Member States' Permanent Representations in New York and Geneva,
Q. whereas the Treaty of Lisbon confers legal personality upon the EU, a novelty which has major reper cussions on the representation of the EU at the UN,
1. Addresses the following recommendations to the Council:
The EU at the UN and ratification of the Lisbon Treaty (a) calls for the EU's political priorities for the next UN General Assembly session to be the subject of an in-depth, wide-ranging debate between Parliament, the Council and the Commission,
(b) considers that the Council's formal position on the priorities for the UN General Assembly should be regarded by the Permanent Representations of EU Member States in New York as a binding political platform to be used in negotiations with other countries,
(c) believes that the coordination of EU Member States' positions within the UN should generally begin in the relevant working groups of the Council, thus making it easier for New York diplomats to achieve a common position on specific issues in the UN bodies and allowing more time for consultations and negotiations with other regional groupings or countries belonging to such other groupings,
(d) invites the Council and the Commission to consider a reorganisation and expansion of their offices in New York and Geneva in view of the increased powers and responsibilities that the EU's represen tatives will be expected to exercise once the Lisbon Treaty is ratified, guaranteeing optimal coor dination and synergy between Community policies, programmes and funds and the instruments and missions comprised in the EU's Common Foreign and Security Policy,
(e) urges the Council and the Commission to study in depth the implications which the Treaty of Lisbon has for the EU's future representation at the UN, and calls on EU Member States to commit themselves clearly and unequivocally to ensuring that the EU enjoys adequate visibility and authority within the UN bodies and fora, 3.12.2009 EN Official Journal of the European Union C 294 E/23
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(f) encourages the Council to negotiate and define, as soon as possible, the operational nature of the EU's observer status at the UN,
(g) calls equally on EU Member States to seek a review of the current structure of regional groupings within the UN in order to ensure that this reflects the membership of the EU resulting from the last enlargement,
(h) invites the Council and the Commission to inform Parliament on a regular basis about the impli cations, including the budgetary ones, of any possible steps towards reorganisation of the EU's presence within the various component parts of the UN, including the Secretariat, as well as its funds and programmes,
The EU contribution to UN reforms (i) welcomes the resumption of the activities of the Working Group on the revitalisation of the UN General Assembly tasked with identifying ways to enhance the Assembly's role, authority, effec tiveness and efficiency, and calls on the EU Member States to promote, in this context, a strengthening of the role of the President of the General Assembly, matched by the allocation of adequate financial, human and infrastructural resources, and the establishment of more systematic cooperation between the General Assembly, the Secretary-General and the UN Security Council, in order to increase the latter's accountability and legitimacy,
(j) encourages EU Member States to continue to demand the long-awaited mandate review intended to strengthen and update the programme of work of the UN, so that it responds to the contemporary requirements of EU Member States, by reviewing all mandates more than five years old which originate from resolutions of the General Assembly and other organs,
(k) reminds EU Member States of the pledges made at the 2005 World Summit to strengthen the UN through a number of management and secretariat reforms; calls on the Council to support those reforms in order to increase accountability and oversight, to improve management performance and transparency, and to strengthen ethics, efficiency and organisational capacity by, first and foremost, focusing on reforming the structure of the Secretariat,
(l) urges the Council to ensure that the UN Department of Peacekeeping Operations and the UN Department of Political Affairs are staffed to a level commensurate with their tasks and responsi bilities and to support efforts by the UN Secretary-General in this respect,
(m) urges the EU Members State to support efforts by the UN Secretary-General in the process of implementation of the concept of ‘responsibility to protect’, as endorsed at the 2005 World Summit; calls on EU Member States to participate actively in this process,
(n) invites the Council to fully support the re-launch of negotiations aimed at implementing the recom mendations of the High-Level Panel on System-wide Coherence, and recommends the EU Member States to cooperate actively with developing countries which are recipients of European or national assistance and to exert the EU's collective influence as well as the EU Member States' individual influence in order to secure the support of those countries for the overhaul of UN assistance delivery and the promotion of greater coherence between UN policies on the ground,
(o) calls on EU Member States to arrive at a more cohesive position on the reform of the UN Security Council — one which, whilst maintaining the ultimate objective, within a reformed UN, of one permanent seat for the EU, aims in the meantime at augmenting the weight of the EU in a manner which is commensurate with the EU's contribution to UN peacekeeping operations and to UN development assistance,
(p) reminds EU Member States in this respect that it is of the utmost importance to ensure that EU Member States present in the UN Security Council uphold EU official positions, duly brief other EU Member States on the discussions taking place in the Security Council and actively coordinate their positions with the relevant working groups in the Council, C 294 E/24 EN Official Journal of the European Union 3.12.2009
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(q) calls on EU Member States to support the Task Force on Security Council reform of the President of the UN General Assembly, Srgjan Kerim; welcomes in this regard the momentum for reforming the Security Council created as a consequence of the initiative referred to as the ‘Overarching Process’; encourages the Council to promote a discussion focusing on points of convergence with a view to achieving tangible progress in this respect,
The EU and the UN Human Rights Council (r) urges EU Member States, especially France and Slovakia as newly elected members of the UN Human Rights Council, to redouble their efforts in ensuring the successful operation of the Human Rights Council in order to protect and promote universal rights; in this respect, calls for greater account ability in the procedure for the establishment and renewal of Special Procedures and for the appointment of mandate holders, which should be based on the principles of transparency and real competition,
(s) stresses the importance of participation by civil society in the work of the UN Human Rights Council, and urges the EU Member States taking part in the work of the UN Human Rights Council to introduce effective ways and instruments enabling civil society to participate in the UN Human Rights Council in order to better protect human rights in the world and to contribute positively to the transparency of the institution,
(t) calls on the Council to sustain efforts aimed at increasing the accountability of UN member states in the field of human rights by increasing the efficiency of the Universal Periodic Review, notably by tightening up procedures to avoid deliberate obstruction or diversionary tactics,
(u) is concerned by recent criticism of the work of the Office of the High Commissioner for Human Rights; calls on the EU Member States to support the Office, especially in the Fifth Committee of the General Assembly, so as to ensure that there is no interference with the independence of the Office and that the Office is granted all the financial resources needed to enable it to carry out its mandate; calls on EU Member States to closely monitor the current procedure for the appointment of the new High Commissioner, given that the mandate of the previous incumbent, Louise Arbor, expired in June 2008,
(v) calls on all EU Member states to remain engaged in the preparations for the 2009 Durban Review Conference and to ensure that the Conference provides the opportunity for all stakeholders to renew their determination and commitment to fight racism, racial and caste discrimination, xenophobia and all other forms of intolerance and to adopt concrete benchmarks with a view to the eradication of racism, on the basis of, and fully respecting, the Durban Declaration and the Programme of Action,
(w) calls on the Council to ensure that there is no recurrence of the negative events associated with the initial Durban conference; calls on all EU Member States to make sure that civil society takes part in the 2009 Durban Review Conference in Geneva, in accordance with the UN Charter and Resolution 1996/31 of the UN Economic and Social Council of 25 July 1996,
(x) calls on all EU Member States to promote and protect the rights of children by supporting the mainstreaming of children's rights in all activities within relevant organs and mechanisms of the UN system,
The EU and the PBC (y) takes the view that EU Member States should collectively support a strengthening of the role of the PBC in relation to the UN system, ensure that its recommendations are adequately taken into account by the relevant UN bodies and advocate increased synergies between the PBC and UN agencies, funds and programmes; stresses the importance of closer cooperation between the PBC and international financial institutions actively involved in countries emerging from conflict,
(z) invites the Council and the EU Member States to encourage contributions to the UN Peacebuilding Fund in order to ensure that it is provided with sufficient resources, 3.12.2009 EN Official Journal of the European Union C 294 E/25
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(aa) urges EU Member States in the Security Council to facilitate consultation of the PBC on the referral of new countries to the PBC and on the mandate of integrated peace-building operations, in particular with a view to ensuring a smooth transition, in due course, from peacekeeping to peacebuilding; welcomes in this respect the fact that the Peacebuilding Support Office is associated with the integrated mission planning process,
(ab) considers it essential that, besides improving coordination between actors, ensuring predictable financing and extending the international attention paid to post-conflict countries, the PBC should also address, in conjunction with the relevant UN departments, the need to improve the organi sation's learning capacity in the field of peacebuilding,
(ac) in view of the above, stresses the need to ensure that human and financial resources available to the PBC are proportionate to the tasks and expectations of UN bodies and of the beneficiary countries, and calls on the EU Member States to raise this issue in the relevant committee of the UN General Assembly,
The EU and the MDGs (ad) urges the Council to support the calls by President Barroso and Commissioner Louis Michel for EU Member States to draw up clear, binding national timetables and budgets to increase real aid in order to reach the promised collective target of 0.56 % of gross national income in 2010 and 0,7 % in 2015,
(ae) reminds the EU Member States that no new promises or new procedures are needed now to achieve the MDGs, and that the focus must be on meeting the promises and pledges already made and scaling up the existing procedures,
(af) notes the continued need for the crisis in the public financing of health services to be addressed if the three health MDGs are to be put back on track, through adequate and predictable recurrent funding for human resources, access to medicines and decentralised and participatory management, and calls on EU Member States to make every effort to strengthen universal, integrated health systems which respond to local needs, and gradually to include the integration of disease-specific programmes (MDG 6),
(ag) considers that gender equality (MDG 3) is an essential element in efforts to meet the MDG targets and recommends that EU Member States urgently address the global financing gap for the achievement of MDG 3; notes that, alongside education, the empowerment of women significantly contributes to the attainment of MDG 4 on child mortality and MDG 5 on maternal health, which are critical indicators of overall progress in development,
(ah) notes that, despite significant progress towards universal primary education in recent years, some 93 million children of primary school age — the majority of them girls — were still not in school in 2006; calls on the EU Member States to address the increased financial needs to support education, including in conflict-affected fragile states,
(ai) recalling the EU's commitments to promote policy coherence for development, recommends that the Council and the EU Member States encourage a UN-wide discussion on how to ensure that efforts and targets on climate change reinforce the attainment of the MDGs; notes that much greater contributions to adaptation funds are required in order to ‘climate-proof’ development in the poorest countries,
(aj) urges the EU Member States to participate actively in the High Level Meeting on the implementation of the New Partnership for Africa's Development (Nepad) to be held on 22 September 2008 and in the UN High Level meeting on the MDGs to be held on 25 September 2008 in New York,
(ak) recommends that the Council and EU Member States renew discussions about debt relief at the UN level, with a view to redefining debt sustainability criteria in such a way as to promote the advancement of development goals rather than debt reimbursement, C 294 E/26 EN Official Journal of the European Union 3.12.2009
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(al) considers that maternal mortality rates remain unacceptably high in many developing countries, with more than 500 000 women dying each year from treatable and preventable complications relating to pregnancy and childbirth; therefore urges EU Member States to dramatically step up efforts and funding so as to ensure universal access to sexual and reproductive health information and services, which are essential for the attainment of the health MDGs, gender equality and the fight against poverty,
(am) in the light of the current food crisis, urges the Council and EU Member States to take steps to reduce trade distortion,
Improving EU-UN cooperation in practice (an) urges the EU Member States and the Commission to support the UN Democracy Fund, in both political and financial terms,
(ao) calls on the Council, and particularly on those EU Member States which are permanent or non- permanent members of the UN Security Council, to advocate a revision of the UN sanctions system (terrorists' blacklists) to bring it into line with the obligations of the UN Covenant on Civil and Political Rights, in particular via the establishment of appropriate notification and appeal procedures; welcomes in this respect, as a first step in the right direction, the adoption by the UN Security Council of Resolution 1730 (2006) which establishes a de-listing procedure and a focal point for de- listing requests within the UN Secretariat,
(ap) calls on the EU Member States to launch, within the UN and prior to the abovementioned Review Conference, a debate on the challenges faced by the International Criminal Court which may undermine the Court's effectiveness, with a view to achieving an agreement on the still outstanding definition of the crime of aggression and the conditions under which the Court could exercise its jurisdiction, as provided for in Article 5(2) of the Rome Statute,
(aq) believes, in view of the evident effects of climate change on the livelihood of millions of people, that the EU should actively encourage the parties to the UN Framework Convention on Climate Change to pursue negotiations with a view to concluding an international climate change agreement by the end of 2009, and calls on the EU Member States to take the lead in such comprehensive global negotiations; furthermore, urges EU Member States to promote, in this context, the use of renewable and CO2 -neutral energy sources; finally, takes the view that EU Member States should consider recommending the establishment of a disaster counselling unit at UN level, which would offer systematic advice to governments on effective disaster preparedness,
(ar) calls on both EU and UN actors to give general consideration to EU-African Union cooperation in the establishment of peace and security on the African continent, focusing specifically on ways in which the UN can improve the quality of its missions by making use of the EU's complementary abilities; recommends that careful consideration be given to the merging of capabilities so as to create synergies not just with regard to technology and military equipment but also with regard to legitimacy and acceptance, as well as cost-effectiveness and suitability for the mandate,
(as) calls on the Council to continue to give high priority to building successful cross-regional part nerships, in particular working with partners in all regions of the world to ensure effective imple mentation of UN General Assembly Resolution 62/149 calling for a worldwide moratorium on executions with a view to abolishing the death penalty,
(at) takes note of the fact that the UN Secretary-General has decided to reconfigure the UN Mission to Kosovo, thus allowing the EU to play an enhanced operational role in the field of the rule of law, and calls on EU Member States, who have unanimously endorsed the launch of the European Rule of Law Mission (Eulex Kosovo), to monitor closely the implementation of this decision on the ground, 3.12.2009 EN Official Journal of the European Union C 294 E/27
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(au) is concerned about the stalemate in disarmament-related negotiations on such issues as a fissile material cut-off treaty and a verification protocol for the Biological Weapons Convention as well as a lack of movement in ratifying the Comprehensive Nuclear Test Ban Treaty; nevertheless, recognises that the 63rd UN session offers the EU an excellent opportunity to show leadership in promoting ratification and universalisation of the recently agreed treaty banning cluster munitions, and in opening negotiations with a view to the conclusion of an International Arms Trade Treaty and an international treaty imposing a global ban on depleted uranium weapons; calls on the EU and the UN to continue their efforts towards strengthening the UN Programme of Action on the Illicit Trade in Small Arms and Light Weapons, and expanding the scope of the Ottawa Treaty banning landmines,
(av) urges the EU Member States to make the necessary efforts to secure an international consensus that will enable the negotiations on the Comprehensive Convention on International Terrorism to be concluded,
(aw) calls on the Council to encourage all activities and appropriate financing aimed at the mainstreaming of gender issues into all aspects of the UN's activities,
(ax) urges the Council to support all activities aimed at combating the extinction of species and protecting the environment as well as mobilising the necessary financial resources;
2. Instructs its President to forward this recommendation to the Council and, for information, to the Commission.
The role of the national judge in the European judicial system P6_TA(2008)0352 European Parliament resolution of 9 July 2008 on the role of the national judge in the European judicial system (2007/2027(INI)) (2009/C 294 E/06)
The European Parliament, — having regard to Article 61 of the EC Treaty, which provides for the progressive establishment of an area of freedom, security and justice including measures in the field of judicial cooperation in civil and criminal matters, — having regard to the Hague Programme for strengthening freedom, security and justice in the European Union ( 1), adopted by the Brussels European Council on 5 November 2004, and to the Commission's communication of 10 May 2005 on ‘The Hague Programme: Ten priorities for the next five years’ (COM(2005)0184), — having regard to the call, made on 14-15 December 2001 by the Laeken European Council, for the rapid setting-up of a European network to encourage training for the judiciary, with a view to helping to develop trust between those involved in judicial cooperation, — having regard to its resolutions of 10 September 1991 on the establishment of a European Law Academy ( 2 ) and of 24 September 2002 on the European Judicial Training Network ( 3 ) (EJTN), — having regard to the Commission's communications of 29 June 2006 on judicial training in the European Union (COM(2006)0356), of 5 September 2007 on a Europe of results: applying Community law (COM(2007)0502), and of 4 February 2008 on the creation of a Forum for discussing EU justice policies and practice (COM(2008)0038),
( 1 ) OJ C 53, 3.3.2005, p. 1. ( 2 ) OJ C 267, 14.10.1991, p. 33. ( 3 ) OJ C 273 E, 14.11.2003, p. 99. C 294 E/28 EN Official Journal of the European Union 3.12.2009
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— having regard to Council Decision 2008/79/EC, Euratom of 20 December 2007 amending the Protocol on the Statute of the Court of Justice ( 1), and the consequent modifications of the Court of Justice's Rules of Procedure introducing an urgent preliminary ruling procedure,
— having regard to Articles 81(2)(h) and 82(1)(c) of the future Treaty on the Functioning of the Union, as inserted by the Treaty of Lisbon, which would provide a legal basis for measures aimed at providing support for the training of the judiciary and judicial staff,
— having regard to Rule 45 of its Rules of Procedure,
— having regard to the report of the Committee on Legal Affairs (A6-0224/2008),
A. whereas a survey carried out for the purposes of this resolution during the second half of 2007 highlighted:
— significant disparities in national judges' knowledge of Community law ( 2 ) across the European Union, with awareness of it being sometimes very limited,
— the urgent need to enhance the overall foreign language skills of national judges,
— the difficulties experienced by national judges in accessing specific and up-to-date information on Community law,
— the need to improve and intensify the initial and life-long training of national judges in Community law,
— the judges' relative lack of familiarity with the preliminary ruling procedure, and the need to reinforce the dialogue between national judges and the Court of Justice,
— the fact that Community law is perceived by many judges as excessively complex and opaque,
— the need to ensure that Community law lends itself better to application by national judges,
B. whereas the primary responsibility for judicial training, including its European dimension, rests with the Member States; whereas the abovementioned Hague programme contains a statement by the European Council that ‘an EU component should be systematically included in the training of judicial authorities’ ( 3 ), and whereas the training of the judiciary in each Member State is nevertheless a matter of common concern for the EU institutions and every Member State,
C. whereas Community law must not be perceived as an area reserved for an elite body of specialists, and whereas training opportunities in this area must not be confined to judges of the higher courts, but rather extended equally to judges at all levels of the judicial system,
D. whereas certain bodies supported financially by the Community are increasingly successful, and already train judges and state prosecutors in large numbers,
E. whereas knowledge of foreign languages is crucial in ensuring proper judicial cooperation, in particular in civil and commercial matters, in areas where direct contact between judges is provided for, and in ensuring access to exchange programmes for judges,
F. whereas the current average duration of the preliminary ruling procedure, despite constant efforts on the part of the Court of Justice, remains excessively long and considerably reduces the attractiveness of this procedure for national judges,
( 1 ) OJ L 24, 29.1.2008, p. 42. ( 2 ) For the purposes of this resolution, references to Community law should be understood as also including Union law. ( 3 ) OJ C 53, 3.3.2005, p. 1, at p. 12. 3.12.2009 EN Official Journal of the European Union C 294 E/29
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G. whereas the Court of Justice has held that it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection of rights derived from Community law ( 1),
H. whereas nothing in this resolution should be taken as affecting the independence of judges and of the national legal systems, in accordance with Recommendation No. R(94)12 of the Committee of Ministers of the Council of Europe and the 1998 European Charter on the statute for judges,
The national judge as first judge of Community law
1. Notes that the European Community is a community based on the rule of law ( 2 ); notes that Community law remains a dead letter if it is not properly applied in the Member States, including by national judges, who are therefore the keystone of the European Union judicial system and who play a central and indispensable role in the establishment of a single European legal order, not least in the light of the recent achievements by the Community legislature ( 3 ) to involve them more actively in, and accord them greater responsibility for, the implementation of Community law;
2. Welcomes the Commission's acknowledgment that national judges play an essential role in ensuring respect for Community law, for example through the principles of the primacy of Community law, direct effect, consistency of interpretation and state liability for breaches of Community law; calls on the Commission to pursue its efforts in this direction in addition to sectoral initiatives already in place; furthermore, calls on the Commission to proceed without delay with the publication of an information note on actions for damages for breaches of Community law by national authorities;
Issues relating to language 3. Considers that language is the main tool of practitioners of justice; considers that the current level of foreign language training for national judges, in conjunction with the actual level of knowledge of Community law, limits not only possibilities for judicial cooperation on specific instruments, but also the development of mutual trust, proper use of the acte clair doctrine, and participation in exchange programmes; calls on all players involved in judicial training to give specific attention to the training of judges in foreign languages;
4. Notes that the application of Community law by national judges is a complex challenge for national judges, particularly for those in the Member States which joined the European Union in May 2004 and subsequently, making it necessary to step up measures to promote professional training for judges in those Member States;
5. Is, moreover, of the opinion that, by enacting a series of regulations containing conflict-of-law rules, the Community legislature has made a policy choice which involves the likely application of foreign law by national judges, possibly also entailing the use of a comparative approach; considers that these elements, taken together, further strengthen the case for increasing foreign language training;
6. Considers that it is in the public interest to enhance the language skills of the judiciary in the Member States; calls on the Member States, therefore, to ensure that such training is free of charge and easily accessible, and to explore the possibility of judges being able to study a foreign language in a Member State where it is spoken, for example in conjunction with participation in a judicial exchange;
7. Considers access to academic literature in the judge's mother tongue to be important for a better understanding of Community law, and notes the apparent scarcity of specialised literature on Community law in certain official languages of the EU, for example concerning private international law issues, and the grave potential consequences this has for the construction of a common legal order reflecting a diversity of legal traditions; therefore calls on the Commission to support the development of such literature, particularly in the less-spoken official languages;
( 1 ) Case C-50/00 P UPA [2002] ECR I-6677, at paragraph 41. ( 2 ) Case 294/83 ‘Les Verts’ v European Parliament [1986] ECR 1339, at paragraph 23. ( 3 ) See for example Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1.) C 294 E/30 EN Official Journal of the European Union 3.12.2009
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Access to relevant sources of law 8. Notes that complete and up-to-date information on Community law is not available in a systematic and proper manner to many national judges, and that Community law is sometimes poorly represented in domestic official journals, codes, commentaries, periodicals and textbooks and based on translations of uneven quality; calls on the Member States to renew efforts in this area;
9. Is of the opinion that a true European judicial area in which effective judicial cooperation can take place requires not only knowledge of European law, but also mutual general knowledge of the legal systems of the other Member States; highlights the inconsistencies in the treatment of foreign law throughout the European Union and considers that this important issue should be addressed in the future; takes note in that respect of the Commission's forthcoming horizontal study on the treatment of foreign law in civil and commercial matters, and of the ongoing studies within the framework of the Hague Conference on Private International Law;
10. Welcomes the Commission's intention to support the improved availability of national databases on national court rulings concerning Community law; considers that these databases should be as complete and user-friendly as possible; considers, moreover, that the Conventions and Regulation on jurisdiction and enforcement of judgments in civil and commercial matters would be a case in point for a European database, given their frequent use by national judges;
11. Is of the opinion that all national judges should have access to databases containing pending references for preliminary rulings from all Member States; considers it equally useful for judgments of referring courts applying a preliminary ruling to be further publicised, as is already touched upon in the Court of Justice's information note on references from national courts for a preliminary ruling ( 1);
12. Considers, given the wealth of online information available on Community law, that judges must be trained not only in the substance of the law, but also in how to access up-to-date legal sources efficiently;
13. Welcomes the Commission's commitment to publish citizens' summaries of Community legal acts, and considers that such non-legalistic summaries would also help legal practitioners to access relevant information more quickly;
14. Encourages the development of online tools and initiatives in the field of e-learning, which, whilst not being a complete answer to training, should be seen as complementary to face-to-face contact between judges and trainers;
Towards a more structured framework for judicial training in the European Union 15. Calls for the EU component in the training at national level of all members of the judiciary:
— to be systematically incorporated into training for, and examinations to enter, the judicial professions,
— to be further strengthened from the earliest possible stage onwards, with an increased focus on practical aspects,
— to cover methods of interpretation and legal principles which may be unknown to the domestic legal order, but which play an important role in Community law;
16. Takes note of the growing success of the exchange programme for members of the judiciary; encourages the EJTN to make it accessible to the widest number of judges, and to ensure an adequate inclusion of judges from civil, commercial and administrative backgrounds; welcomes the EJTN's activities in the field of language training and the extension of the exchange programme to the Court of Justice, Eurojust and the European Court of Human Rights;
( 1 ) OJ C 143, 11.6.2005, p. 1, at paragraph 31. 3.12.2009 EN Official Journal of the European Union C 294 E/31
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17. Regards the availability of national judges to participate in basic and advanced training as a major logistical and financial issue for Member States; considers, in principle, that judges should not have to bear any of the costs related to their training in Community law; requests the Commission to provide Parliament with estimates for each Member State of the cost involved in temporarily replacing judges who participate in exchange programmes;
18. Taking into account the Commission's recognition that the EJTN enjoys a de facto monopoly for operating the Exchange Programme for Judicial Authorities, calls on the Commission to ensure that the procedures by which the EJTN applies for funds for that Exchange Programme reflect that monopoly situation; calls, in particular, for those procedures to be streamlined in order to ensure that funds are made available timeously so as to enable the EJTN to organise and run an efficient programme which meets the expectations of, and commitments made to, participating national schools, international bodies and judges and prosecutors; considers that, if this is not the case, the credibility of the Exchange Programme may be called into question, to the detriment of national judges and prosecutors interested in taking part and the advancement of mutual confidence across European judiciaries;
19. Takes note of the Commission's assessment that the most appropriate option for promoting training in the European judicial area is currently financial support to various bodies through the Fundamental Rights and Justice Framework Programme for 2007-2013, and that the question of developing European judicial training structures towards other forms could be raised again when that programme comes to an end;
20. Calls on the Commission to evaluate rigorously the results of this framework programme, in the light of this resolution, and to formulate new proposals for the development and diversification of measures to promote professional training for judges;
21. Considers, however, that the time is ripe for a pragmatic institutional solution to the question of judicial training at EU level which makes full use of existing structures whilst avoiding unnecessary dupli cation of programmes and structures; calls, therefore, for the creation of a European Judicial Academy composed of the EJTN and the Academy of European Law; calls for this institutional solution to take account of relevant experience gained in running the European Police College;
22. Considers that national judges cannot adopt a passive attitude to Community law, as made clear by the Court of Justice's case-law on national courts raising Community law issues of their own motion ( 1 );
23. Calls for the training of candidates for judicial appointment to be strengthened from the earliest point onwards and by analogy with the above suggestions and proposals concerning national judges;
A reinforced dialogue between national judges and the Court of Justice 24. Considers that the preliminary ruling procedure is an essential guarantee of the coherence of the Community legal order and the uniform application of Community law;
25. Calls on the Court of Justice and all parties concerned to further reduce the average length of the preliminary ruling procedure, thus making this crucial opportunity for dialogue more attractive to national judges;
26. Urges the Commission to investigate whether any national procedural rules constitute an actual or potential hindrance to the possibility for any court or tribunal of a Member State to make a preliminary reference, as provided for in the second paragraph of Article 234 of the EC Treaty, and to pursue vigorously the infringements which such hindrances represent;
( 1 ) Cases C-312/93 Peterbroeck [1995] ECR I-4599, C-473/00 Cofidis [2002] ECR I-10875 and C-168/05 Mostaza Claro [2006] ECR I-10421. C 294 E/32 EN Official Journal of the European Union 3.12.2009
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27. Considers that limitations on the Court of Justice's jurisdiction, particularly those concerning Title IV of the EC Treaty, unnecessarily prejudice the uniform application of Community law in those areas, and send a negative message to the vast majority of judges dealing with such matters, making it impossible for them to establish direct contact with the Court of Justice and creating unnecessary delays;
28. Regrets that, under Article 10 of the Protocol on transitional provisions annexed to the Treaty of Lisbon, the powers of the Court of Justice with respect to acts in the field of police cooperation and judicial cooperation in criminal matters adopted before the entry into force of that Treaty are to remain the same as they are under the present EU Treaty for a transitional period of five years; welcomes, however, the declaration made by the Intergovernmental Conference concerning that article of the Protocol and accordingly urges the Council and the Commission to join with Parliament in re-adopting those acts in the field of police cooperation and judicial cooperation in criminal matters which were adopted before the entry into force of the Treaty of Lisbon;
29. In view of the introduction of an urgent preliminary ruling procedure, agrees with the Council that it is important for the Court of Justice to provide guidance to which national judges could refer when deciding whether to request the urgent procedure;
30. Calls on the Court of Justice to consider all possible improvements to the preliminary ruling procedure which would involve the referring judge more closely in its proceedings, including enhanced possibilities for clarifying the reference and participating in the oral procedure;
31. Considers that, in a decentralised and mature Community legal order, national judges should not be marginalised but rather given more responsibility and further encouraged in their role as first judges of Community law; therefore urges consideration of a ‘green light’ system whereby national judges could include their proposed answers to the questions they refer to the Court of Justice, which could then decide within a given period whether to accept the proposed judgment or whether to rule itself in the manner of an appellate court;
Laws better tailored to application by national judges 32. Takes note of the creation of a Forum for discussing EU justice policies and practice, and calls on the Commission to ensure that the Forum carries out its deliberations in a transparent manner; notes the Commission's commitment to report on a regular basis both to Parliament and to the Council;
33. Insists on the need for clearer language in Community legislation, and greater terminological coherence between legal instruments; supports in particular the use of the projected Common Frame of Reference in European contract law as a better law-making instrument;
34. Strongly supports the Commission's insistence that the Member States systematically provide corre lation tables setting out how Community directives are applied in national regulations; agrees that such tables provide valuable information at minimal cost and burden; considers, moreover, that correlation tables increase transparency in the implementation of Community law and give national judges and parties before them a realistic opportunity to see whether Community law lies behind a particular national rule and to check for themselves whether, and if so how, transposition has been properly carried out;
* * * 35. Instructs its President to forward this resolution and the report of the committee responsible to the Council, the Commission, the Court of Justice, and the European Ombudsman. 3.12.2009 EN Official Journal of the European Union C 294 E/33
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Airbus/Boeing disputes P6_TA(2008)0353 European Parliament resolution of 9 July 2008 on the World Trade Organisation disputes between the European Union and the United States on alleged subsidies to Airbus and Boeing (2009/C 294 E/07)
The European Parliament,
— having regard to the World Trade Organisation (WTO) disputes between the European Union (EU) and the United States (US) on alleged subsidies to Airbus and Boeing,
— having regard to its resolution of 1 June 2006 on EU-US transatlantic economic relations ( 1),
— having regard to the resolution of the US Senate (Res. 632) of 8 December 2006 urging the US and the EU to work together to strengthen the transatlantic market,
— having regard to the EU-US Summit of 30 April 2007,
— having regard to Rule 108(5) of its Rules of Procedure,
A. whereas it values the transatlantic partnership between the EU and the US and supports fair and balanced trade policies in general,
B. whereas, over the past decade, the transatlantic economic relationship has experienced an unprecedented period of integration, with European investment in the US representing 75 % of total US investment inflows in 2006 and US investment in Europe rising to a record USD 128 billion (128 000 000 000), or 59 % of total US foreign direct investment outflows, in 2006,
C. whereas the importance of the aircraft industry for employment and job creation, particularly in high- skilled sectors, as well as in a broad range of other industries, for regional development and for state-of- the-art transnational industrial cooperation is of particular relevance,
D. whereas, in the civil aircraft industry, both Airbus and Boeing presently have the capability to design and integrate large commercial aircraft and it is in the interest of airlines and their customers to maintain a high level of healthy competition,
E. whereas, in 1992, the EU and the US signed a bilateral agreement on trade in large civil aircraft (the 1992 Agreement) that created a balanced playing field with rules governing government support,
F. whereas the EU has consistently adhered to the spirit and letter of the 1992 Agreement and has regularly provided documented evidence of compliance,
G. whereas the US has largely ignored its obligations under the 1992 Agreement by not reporting its subsidies to Boeing as well as by providing subsidies in excess of agreed limits and by granting prohibited subsidies to Boeing,
H. whereas the 1992 Agreement maintained stability in the sector until 2004, when the US unilaterally purported to withdraw from it and brought a WTO case against the EU, citing European repayable financing which fully complied with the 1992 Agreement and which is similar to that benefiting Boeing for the development and production of large parts of its 787 in Japan and other risk-sharing countries,
( 1 ) OJ C 298 E, 8.12.2006, p. 235. C 294 E/34 EN Official Journal of the European Union 3.12.2009
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I. whereas, despite numerous efforts by the EU in good faith, it has hitherto not been possible to establish a fair and balanced basis for a negotiated settlement,
J. whereas it reaffirms its support for the Commission's consistent openness to a balanced, negotiated solution without preconditions,
K. whereas balanced and fair government support for aerospace on both sides of the Atlantic has resulted in research and innovation, increased safety, improved environmental performance, and efficiencies in air transportation,
L. whereas the Member States' financing for Airbus is strictly limited, repayable with interest and clearly has no impact on Boeing's ability to compete, as Airbus repaid 40 % more than it has received from governments of the Member States since 1992 and has repaid in excess of EUR 7 billion so far,
M. whereas the EU is challenging various prohibited and actionable US Federal, State and local subsidies benefiting Boeing, totalling USD 23,7 billion in non-repayable subsidies over the past two decades and up to 2024,
N. whereas Parliament reaffirms its belief in the importance of fair and open competition in public procurement competitions and has noted favourably the contract award to the Northrop Grumman European Aeronautic Defence and Space company (EADS) team for the US aerial tanker programme based on neutral criteria designed to identify and place the best and most suitable equipment in the hands of the US Air Force,
O. whereas Parliament notes, however, with deep concern, the bitter attacks by Boeing in an attempt to portray EADS operations and certain Member States as ‘unreliable aerospace business partners’ and a security risk to US military readiness, a message that has not gone unnoticed in Europe,
P. whereas the report of the Government Accountability Office sustaining Boeing's bid protest is recognised as an evaluation merely of the selection process and not the merits of the aircraft; whereas it reaffirms its belief that the integrity of the US Department of Defence procurement process will remain intact for all competitors;
1. Addresses the following recommendations to the Commission, acting on behalf of the EU in defending the interests of the Member States and the EU large civil aircraft industry:
(a) Parliament calls on the Member States and the Commission to ensure that any anti-competitive actions contained in legislation or in executive policy that would improperly restrict the ability of EU companies to compete in either civil or military programmes should be met with the appropriate response by the Community and its Member States;
(b) Parliament fully supports the defence of EU interests in the pending dispute settlement proceedings before the WTO and urges the Commission to continue its efforts in this regard: it doubts, however, whether WTO rulings in themselves will provide the necessary long-term solution the market requires as a basis for future peaceful and fair competition in this sector which, by contrast, a negotiated solution could deliver;
(c) Parliament considers that the starting point for any talks would need to be a discussion without preconditions on the terms of negotiation, demonstrating the genuine intent by both sides to arrive at a pragmatic balance between EU civil support and the US military-industrial scheme, which lays down those aspects of government involvement genuinely impinging on the establishment of a truly level playing field.
2. Instructs its President to forward this resolution to the Council and the Commission, and to the President and Congress of the United States of America. 3.12.2009 EN Official Journal of the European Union C 294 E/35
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European strategic energy technology plan P6_TA(2008)0354 European Parliament resolution of 9 July 2008 on the European Strategic Energy Technology Plan (2008/2005(INI)) (2009/C 294 E/08)
The European Parliament,
— having regard to the Commission Communication entitled ‘A European Strategic Energy Technology Plan (SET-Plan): Towards a low carbon future’ (COM(2007)0723) (the SET-Plan Communication),
— having regard to the full impact assessment (SEC(2007)1508), the ‘Technology Map’ (SEC(2007)1510) and the ‘Capacities Map’ (SEC(2007)1511) accompanying the SET-Plan Communication,
— having regard to the Commission Communication entitled 20 20 by 2020: Europe's climate change opportunity (COM(2008)0030),
— having regard to the impact assessment of the Package of implementation measures for the EU's objectives on climate change and renewable energy for 2020 (SEC(2008)0085),
— having regard to the Commission Communication entitled ‘Supporting Early Demonstration of Sustainable Power Generation from Fossil Fuels’ (COM(2008)0013),
— having regard to the Commission staff working document entitled ‘The support of electricity from renewable energy sources’ (SEC(2008)0057),
— having regard to the Commission Communication entitled ‘An Energy Policy for Europe’ (COM(2007)0001),
— having regard to the Commission Communication entitled ‘Economic reforms and competitiveness: key messages from the European Competitiveness Report 2006’ (COM(2006)0697),
— having regard to the proposal for a directive of the European Parliament and of the Council on the promotion of the use of energy from renewable sources (COM(2008)0019),
— having regard to the proposal for a directive of the European Parliament and of the Council amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading system of the Community (COM(2008)0016),
— having regard to the proposal for a directive of the European Parliament and of the Council on the geological storage of carbon dioxide and amending Council Directives 85/337/EEC, 96/61/EC, Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC and Regulation (EC) No 1013/2006 (COM(2008)0018),
— having regard to Decision No 1982/2006/EC of the European Parliament and of the Council of 18 December 2006 concerning the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007-2013) ( 1 ),
( 1 ) OJ L 412, 30.12.2006, p. 1. C 294 E/36 EN Official Journal of the European Union 3.12.2009
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— having regard to Council Decision 2006/976/Euratom of 19 December 2006 concerning the specific programme implementing the Seventh Framework Programme of the European Atomic Energy Community (Euratom) for nuclear research and training activities (2007 to 2011) ( 1),
— having regard to Decision No 1639/2006/EC of the European Parliament and of the Council of 24 October 2006 establishing a Competitiveness and Innovation Framework Programme (2007 to 2013) ( 2 ),
— having regard to the proposal for a Council Regulation setting up the Fuel Cells and Hydrogen Joint Undertaking (COM(2007)0571),
— having regard to its resolution of 25 September 2007 on the Road Map for renewable energy in Europe ( 3 ),
— having regard to its resolution of 31 January 2008 on an Action Plan for Energy Efficiency: Realising the Potential ( 4 ),
— having regard to its resolution of 13 March 2008 on the Global Energy Efficiency and Renewable Energy Fund ( 5 ),
— having regard to its position of 11 March 2008 on the European Institute of Innovation and Tech nology ( 6 ),
— having regard to the Presidency conclusions of the Brussels European Council of 8 and 9 March 2007,
— having regard to the conclusions of the Transport, Telecommunications and Energy Council of 28 February 2008 on the European Strategic Energy Technology Plan,
— having regard to the Presidency conclusions of the Brussels European Council of 13 and 14 March 2008,
— having regard to Rule 45 of its Rules of Procedure,
— having regard to the report of the Committee on Industry, Research and Energy and the opinion of the Committee on the Environment, Public Health and Food Safety (A6-0255/2008),
A. whereas successive announcements by Parliament, the Council and the Commission have stressed that the objectives of European energy and climate policy are tackling climate change, improving energy security and enhancing the competitiveness of the European economy,
B. whereas the threat posed by climate change continues to grow and the COP14 talks at Poznan and the COP15 talks at Copenhagen will be of critical importance to achieving an international agreement on climate change to replace the Kyoto protocol regime,
C. whereas the Stern Review on the Economics of Climate Change recognises that the cost of not acting to mitigate climate change far outweighs the cost of action,
D. whereas the European Union's dependency on imports of fossil fuels could increase to 65 % of total consumption by 2030,
( 1 ) OJ L 400, 30.12.2006, p. 404. ( 2 ) OJ L 310, 9.11.2006, p. 15. ( 3 ) Texts adopted, P6_TA(2007)0406. ( 4 ) Texts adopted, P6_TA(2008)0033. ( 5 ) Texts adopted, P6_TA(2008)0096. ( 6 ) Texts adopted, P6_TA(2008)0081. 3.12.2009 EN Official Journal of the European Union C 294 E/37
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E. whereas the Commission has estimated that it will cost EUR 70 billion per annum by 2020 to achieve the European Union's greenhouse gas reduction and renewable energy targets,
F. whereas improving energy efficiency is one of the most cost-effective means of cutting greenhouse gas emissions,
G. whereas research and technological development are key to achieving the objectives of European energy policy,
H. whereas better synergy in future European energy technology research can only stimulate sustainable economic growth, contribute to the comparative advantages of the European economy, improve employment and thus help achieve the objectives of the Lisbon strategy and combat climate change,
I. whereas the Seventh Framework Programme (FP7) allocates only EUR 2,3 billion over the seven-year period to energy research,
J. whereas private sector investment in research on energy technology is very limited in the European Union when compared to the efforts made by third-country competitors as well as other EU sectors,
K. whereas public and private energy research budgets in the European Union have declined substantially since the 1980s; and whereas the European Union performs poorly when innovation indicators based on technology research spending levels are compared at international level,
L. whereas public intervention in support of new, less-polluting energy technologies is necessary and justified since these are initially more costly than those they replace and, at the initial market-penetration stage, may therefore not be accompanied by either short-term trading profits or better prices for consumers,
Need for a Strategic Energy Technology Plan 1. Welcomes the European Strategic Energy Technology (SET-Plan); considers that a European energy technology policy with adequate financial support is fundamental to achieving the European Union's energy and climate change objectives for 2020;
2. Stresses that the European Union must deliver its greenhouse gas reduction, energy efficiency and renewable energy targets by 2020 whilst maintaining a competitive and sustainable economy; believes that the development and deployment of innovative, low-cost, low-carbon energy technologies, energy efficiency and renewable energy is essential to reducing the cost of cutting emissions, creating new markets for EU industry and securing a world-wide commitment to tackling climate change;
3. Considers that in order to achieve those targets it is vital to reduce the cost of green energy and boost innovation in the energy sector; believes that this makes it necessary to improve the process of technology transfer from research centres to enterprises, cut market penetration times, end the current technological and regulatory inertia and enhance network interconnectivity;
4. Believes that new technologies, particularly renewable energy and energy efficiency technologies, are also needed to facilitate the diversification of energy sources, reduce energy demand and provide less polluting and safer methods of using indigenous resources, in aid of security of energy supply; calls on the Commission to undertake an assessment of the European Union's energy resources;
5. Believes that the SET-Plan should support a wide range of activities which stimulate public debate on the merits of different new energy technologies, namely through consumer education and information campaigns;
6. Believes that cheaper, more effective low carbon technologies can contribute to achieving a new international agreement on climate change to replace the Kyoto protocol regime; C 294 E/38 EN Official Journal of the European Union 3.12.2009
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Coordination and Strategic Planning 7. Stresses the need to enhance the coordination of Strategic Energy Technologies at various levels and among different partners; also stresses the need to avoid excessive bureaucracy, ensure simplicity and clarity and secure widespread participation of all potential partners when improving coordination, for example through the proposed European Community Steering Group on Strategic Energy Technologies and the proposed European Energy Research Alliance, which should be open to all European research centres regardless of their dimension or resources;
8. Supports the establishment of a high-level steering group and a transparent and easily accessible information system on energy technology, in particular for small and medium-sized enterprises, and asks the Commission to keep Parliament informed about the establishment of this group and its work and about the information strategy;
9. Notes that instruments developed under the Framework Programmes (ERA-NETs, NoEs, ETPs) could be used to support the future European Energy Technology Information System;
10. Emphasises that coordinated cooperation with the Member States is vital in order to achieve the targets set, maximise benefits and reduce costs; believes that the Community instruments that operate at Member State level, such as the Structural Funds, may bolster research, development and innovation capacities in those areas;
11. Emphasises the vital importance of improving coordination with third countries and reinforcing international cooperation in order to implement a coherent and differentiated strategy in relation to developed, developing and emerging economies;
12. Stresses that the capacity of the European Union research base needs to be enlarged and that further education and training is essential to provide the quantity and quality of human resources required to take full advantage of the new technology opportunities opening up; believes that an integrated approach across the FP7 specific programmes could be beneficial in this regard;
13. Draws attention to the potential risk of duplication and multiplication of new initiatives; calls on the Commission to consider how the new European Industrial Initiatives (EIIs) will fit in with existing programmes, including FP7 and more specifically the European Technology Platforms, the Joint Technology Initiatives decided upon under FP7, the Competitiveness and Innovation Framework Programme (CIP) and, in particular, with the European Institute of Innovation and Technology and its Knowledge and Information Communities on climate change and energy; calls on the Commission to explain how the EIIs will support synergies between Community and national level;
14. Reiterates that the SET-Plan needs to build energy research and innovation capacity on an EU scale; agrees with the Commission that pan-European research infrastructures form part of the solution; asks, therefore, the European Strategy Forum on Research Infrastructures to identify the need for European research infrastructures in the field of innovative energy technologies, such as renewable energy tech nologies;
15. Believes that the trans-European energy networks and simplified authorisation procedures in this sector play a fundamental role in the European Union's strategic energy policy;
Research and technology transfer 16. Stresses that necessary coordination has to extend to the various scientific and technological fields which, owing to their multidisciplinary nature, play a part in energy technology research and development; emphasises, in this respect, the need to boost research in basic sciences such as biology, information technology, materials science and macro-technologies; 3.12.2009 EN Official Journal of the European Union C 294 E/39
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17. Asks the Commission to take into consideration the potential for employment of energy tech nologies in the more recently acceded Member States and to introduce supporting mechanisms based on the EU policies;
18. Emphasises the need to improve the transfer of technology from research centre to enterprise; urges that the new European Institute of Innovation and Technology play a role in this field;
19. Urges that the private sector invest more in research and assume greater risks, this being a prerequisite for the European Union to become a frontrunner in this area;
European Industrial Initiatives 20. Strongly believes that increased support is needed for low carbon technologies in the demonstration and commercialisation phase for new decentralised renewable technologies; welcomes the proposed EIIs, therefore; stresses, however, the need also to increase support for R&D in technologies that will be needed over the longer term, with particular emphasis on strategically important technologies such as solar energy technologies that can lead to an energy-independent European Union in the long term;
21. Considers that the EIIs should be focused on areas with the greatest potential to help achieve the European Union's climate change, energy efficiency and renewable energy objectives on a sustainable basis and for reduced costs and replication in the long term;
22. Calls for the life cycle of each technology and its environmental impact at each stage of the production processes to be taken into account when prioritising EIIs; calls for the possibility of transferring those technologies to developing economies to be taken into consideration in order to reduce the tech nology gap with those countries;
23. Calls for enhanced technology transfer with the developed countries and for the establishment of scientific cooperation with those countries for the development of new energy technologies;
24. Supports the Commission's proposal that EIIs should be developed differently to suit the needs of specific technologies; believes that such adaptability would enable the development of strategic alliances between Member States, local and regional governments, research centres and the private sector for the development of particular technologies; calls on these bodies to work together to develop detailed proposals for EIIs as a matter of urgency;
25. Strongly supports the proposed EIIs on wind, solar, bio-energy, CO 2 capture, transport and storage, electricity grids and nuclear fission;
26. Calls, in particular, for biofuels research to be intensified so as to ensure that the overall environ mental impact of producing such fuels is unequivocally beneficial;
27. Notes the importance of developing large-scale biomass to gas conversion to produce hydrogen and liquid synthetic fuels for sustainable transport technologies;
28. Stresses that the EII on nuclear fission should enable continuity and include the R&D work on third and fourth generation technologies;
29. Regrets that the SET-Plan focuses mainly on supply side measures and omits measures to reduce energy demand, such as energy savings and energy efficiency;
30. Insists that energy efficiency should figure more prominently in the SET-Plan, since it is the area with the most potential for cost effective emission reductions in the medium term, particularly in the building sector, which accounts for 40 % of the total EU energy consumption; calls, therefore, on the Commission to add energy efficiency technologies, including co- and poly-generation, to the areas covered by the EIIs; supports the inclusion of energy efficiency as one of the priorities covered by the EIIs; C 294 E/40 EN Official Journal of the European Union 3.12.2009
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31. Asks the Commission to investigate the possibility of extending the EIIs proposed to other sectors with significant emissions reduction potential such as cogeneration, hydrogen, the construction and housing sector, heating and cooling systems, better energy storage and distribution infrastructures and intercon nection of networks;
32. Believes that the development of carbon capture and storage (CCS) technology could play a role in reducing greenhouse gas emissions, provided its efficiency and safety is assured; calls on the Commission to facilitate the realisation of up to 12 proposed CCS full-scale demonstration projects within the EIIs; notes that support for clean coal technologies, as coal to gas conversion, will make it easier and cheaper to deploy CCS with the possibility of making it mandatory in the future;
Financing 33. Awaits the Commission's proposed Communication on financing for new low carbon and CCS technologies; regrets that that Communication was not published together with the SET-Plan;
34. Stresses that the SET-Plan should not be financed through the reallocation of funds made available for energy under FP7 or CIP;
35. Believes that, given the priority attached to climate change and energy issues, significant additional EU resources for energy efficiency and renewable energy technologies are needed and should be deployed to help to meet the EU's 2020 targets;
36. Encourages the Commission urgently to ensure adequate financing and support for new low carbon and zero carbon technology R&D, demonstration and commercialisation, so that from 2009 onwards, at least EUR 2 billion per annum of the European Union budget is spent on support for such technologies independently from FP7 and CIP; also calls on the Commission to put forward proposals for additional resources in the mid-term review of the financial framework 2007-2013;
37. Considers that better and greater use should be made of both financial and human resources to speed up the development and deployment of clean future technologies;
38. Emphasises the need to increase EU research capacity; calls, therefore, for more funding for human resources and training in the energy technology sector; calls also for greater coordination between Community and national financial instruments to support training and research, in particular the FP7;
39. Supports, in the light of the need for more complementarity between EU funds, the proposals in the Commission Communication entitled ‘Competitive European regions through research and innovation’ (COM(2007)0474); welcomes, in that context, the Commission's practical guide on coordinating EU funds from regional, national, EU and European Investment Bank (EIB) sources in the field of R&D and innovation; agrees with the Commission that there is a need to communicate better to stakeholders the provision of Article 54(5) of Council Regulation (EC) No 1083/2006 ( 1 ) concerning the use of funding from two different Community sources for the same set of eligible costs;
40. Calls on the Commission, when presenting the financial plan, to explain where joint EU action provides added value in the various technology sectors and set out the findings relating to the sustainability of the various technological developments;
41. Notes the need for resources to be deployed in partnership with industry, in order to leverage private sector investments in new low carbon technologies; stresses the need for a clear long-term vision and financial framework, supported by financial institutions such as the EIB, in order to give private sector partners sufficient certainty to invest; stresses the need to involve SMEs, particularly in technologies for dispersed energy supply systems;
( 1 ) OJ L 210, 31.7.2006, p. 25. Regulation as amended by Regulation (EC) No 1989/2006 (OJ L 411, 30.12.2006., p. 6). 3.12.2009 EN Official Journal of the European Union C 294 E/41
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42. Notes that, under the proposed revision of the EU Emissions Trading Scheme, auction revenues could provide a significant source of funding for enhancing the European Union's security of supply in energy while achieving its targets as regards climate change, energy efficiency and renewables;
* * *
43. Instructs its President to forward this resolution to the Council, the Commission and the governments and parliaments of the Member States.
Sovereign Wealth Funds P6_TA(2008)0355 European Parliament resolution of 9 July 2008 on sovereign wealth funds (2009/C 294 E/09)
The European Parliament,
— having regard to the Commission Communication on a common European approach to Sovereign Wealth Funds (COM(2008)0115),
— having regard to the ongoing work of the International Monetary Fund (IMF) and, in particular, of the International Working Group on Sovereign Wealth Funds,
— having regard to the report of the Organisation for Economic Cooperation and Development (OECD) Investment Committee adopted on 4 April 2008,
— having regard to Articles 64 and 65 of the Treaty on the Functioning of the European Union (TFEU) (ex Articles 57 and 58 of the Treaty establishing the European Community),
— having regard to Rule 108(5) of its Rules of Procedure,
A. whereas sovereign wealth funds (SWFs) have been active in global financial markets for more than 50 years,
B. whereas no disruption of financial markets may be attributed to the activities of SWFs,
C. whereas the ownership structure of SWFs places them outside the scope of EU financial market regulation,
D. whereas the investment strategy of SWFs has shown a preference for long-term, stable investments,
E. whereas there is some concern regarding a lack of transparency in some SWFs as regards their assets, investment strategies, profits and governance structures,
F. having regard to SWFs' role during the recent financial crisis in saving some major financial institutions from bankruptcy,
G. having regard to the growth potential of SWFs,
H. whereas the European Union should remain firmly committed to a policy of openness to investments and free movement of capital, C 294 E/42 EN Official Journal of the European Union 3.12.2009
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1. Considers that SWFs have not caused any disruption of capital markets, but that their structure, size and rapid growth call for a careful analysis of their role and influence; acknowledges the fact that the approach to transparency and governance of SWFs differ;
2. Is concerned that the lack of transparency of certain SWFs may not allow a proper understanding of their structure and motivation; requests the Commission to acknowledge the fact that transparency and disclosure are the key principle for the establishment of a truly level playing field and the smooth running of markets in general;
3. Welcomes the Commission Communication, on SWFs which reasserts the importance of open markets and the Commission's commitment to a global solution; notes the various initiatives either at national level or within international forums to enhance transparency and improve governance, and asks the Commission to work closely with the IMF and the OECD to establish a global code of conduct;
4. Considers, nevertheless, that the Commission Communication on SWFs should be considered a first step, and therefore requests the Commission to monitor SWF activities and play a coordinating role in order to ensure that national initiatives do not counter the commitment to openness to investments or endanger the European Union's position on global markets;
5. Requests the Commission to conduct an analysis of tools at the European Union's disposal in EC Treaty provisions and existing legislation — such as transparency requirements, voting rights, shareholders' rights and golden shares — that would allow some reaction in the event of ownership problems due to SWF intervention;
6. Requests the Council and the Commission to assess the margin for manoeuvre left to EU institutions by the provisions of Articles 64 and 65 of the TFEU, in order to verify the options for coordinated action at EU level, which is essential to EU interests and the smooth functioning of the internal market; request the Commission to work on a list of sectors that could come within the scope of the Article 65 provisions on public policy;
7. Requests the Council and the Commission to conduct an in-depth analysis of the functioning of the global financial markets and to define and promote a strong EU vision, taking into account global initiatives, of what should be the principles and rules guiding their functioning; is of the opinion that a common position of this kind would strengthen the EU's position within international forums; requests the Commission to apply the principle of reciprocity, where appropriate;
8. Is concerned about oil prices and their consequences for the euro/dollar exchange rate, as profits from oil are often reinvested via SWFs in euro-denominated assets and euro area markets in general;
9. Instructs its President to forward this resolution to the Council and the Commission.
Towards a new culture of urban mobility P6_TA(2008)0356 European Parliament resolution of 9 July 2008 on Towards a new culture of urban mobility (2008/2041(INI)) (2009/C 294 E/10)
The European Parliament,
— having regard to the Green Paper entitled ‘Towards a new culture of urban mobility’ (COM(2007)0551),
— having regard to the White Paper entitled ‘European Transport Policy for 2010: time to decide’ (COM(2001)0370), 3.12.2009 EN Official Journal of the European Union C 294 E/43
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— having regard to the Commission communication entitled ‘Keep Europe moving — sustainable mobility for our continent: mid-term review of European Commission's 2001 Transport White Paper’ (COM(2006)0314),
— having regard to the Commission communication entitled ‘Towards Europe-wide safer, cleaner and efficient mobility: the first intelligent car report’ (COM(2007)0541),
— having regard to the Commission communication entitled ‘A Competitive Automotive Regulatory Framework for the 21st Century — Commission's position on the CARS 21 High Level Group Final Report, A contribution to the EU's Growth and Jobs Strategy’ (COM(2007)0022),
— having regard to the Commission communication entitled ‘On the Intelligent Car Initiative: Raising Awareness of ICT for Smarter, Safer and Cleaner Vehicles’ (COM(2006)0059),
— having regard to the Commission communication entitled ‘Freight Transport Logistics in Europe — the Key to Sustainable Mobility’ (COM(2006)0336),
— having regard to the Commission communication entitled ‘Freight Transport Logistics Action Plan’ (COM(2007)0607),
— having regard to the Commission communication entitled ‘On a Thematic Strategy on the Urban Environment’ (COM(2005)0718),
— having regard to the proposals and guidelines of the Commission and the opinions of the European Parliament on the structural funds, the cohesion fund and the 7th Research Framework Programme,
— having regard to the revised proposal for a Directive of the European Parliament and of the Council on the promotion of clean and energy efficient road transport vehicles (COM(2007)0817),
— having regard to its resolution of 20 February 2008 on the input for the 2008 Spring Council as regards the Lisbon Strategy ( 1),
— having regard to its resolution of 12 July 2007 on keeping Europe moving — sustainable mobility for our continent ( 2 ),
— having regard to its resolution of 15 January 2008 on CARS 21: A Competitive Automotive Regulatory Framework ( 3),
— having regard to its resolution of 5 September 2007 on Freight Transport Logistics in Europe — the Key to Sustainable Mobility ( 4 ),
— having regard to its resolution of 26 September 2006 on the thematic strategy on the urban environment ( 5 ),
— having regard to the opinion of the European Economic and Social Committee on ‘Urban Mobility’,
— having regard to Rule 45 of its Rules of Procedure,
— having regard to the report of the Committee on Transport and Tourism and the opinions of the Committee on the Environment, Public Health and Food Safety and the Committee on Regional Devel opment (A6-0252/2008),
( 1 ) Texts adopted, P6_TA(2008)0057. ( 2 ) Texts adopted, P6_TA(2007)0345. ( 3 ) Texts adopted, P6_TA(2008)0007. ( 4 ) Texts adopted, P6_TA(2007)0375. ( 5 ) OJ C 306 E, 15.12.2006, p. 182. C 294 E/44 EN Official Journal of the European Union 3.12.2009
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A. whereas urban centres (cities and their surroundings) are in many ways extremely important for the lives of EU citizens; whereas urban centres face similar problems and challenges with regard to pollution, congestion, noise and road safety as a consequence of urban mobility, in spite of the differences in their size and structure,
B. whereas there is an urgent need for new thinking and innovative concepts on mobility in cities as urban transport is a major contributor to climate change, pollution and other environmental problems as well as the related negative effects on the quality of life and health of city dwellers; whereas these problems need to be tackled if any overall EU strategy to combat climate change and other environmental problems is to be successful,
C. whereas a suitable division of tasks between the EU and towns and cities must be ascertained, in which the EU should play a clearly defined role; whereas in line with the principle of better regulation and the principles of subsidiarity and proportionality, Community action on urban mobility should be taken only when there is clear EU added value,
D. whereas the principles of the EU internal market should also be taken into account in the field of urban mobility,
E. whereas European towns and cities should be able to choose from a wide range of flexible instruments so as to put together a tailor-made policy mix in order to provide integrated, sustainable, socially effective and economically viable solutions to their specific mobility problems; whereas better logistical solutions and a shift towards more sustainable transport modes must be sought in all transport modes and areas (pedestrians, cyclists, public and private passenger transport, freight distribution, and services) to provide for good accessibility to city centres and smooth traffic flows, which are of great importance for residents, visitors, commuters, producers and suppliers of goods and services — particularly SMEs; whereas special attention should be paid to the interoperability of the instruments chosen so as to enable authorities at a later stage to enforce road traffic offences related to urban areas on a cross-border basis,
F. whereas European policy on urban transport must take into account economic, social, territorial and environmental cohesion; whereas special attention has to be paid to the particular problems and conditions in the ‘new’ Member States,
G. whereas attention must be paid to the particular needs of workers (commuters), people with reduced mobility, children (pushchairs), the least affluent and the elderly; whereas it should be kept in mind that the rapid ageing of Europe's population leads to demographic shifts and to new mobility needs in societies,
H. whereas it is essential to adopt a new approach to strategic planning for urban areas in order to anticipate the environmental, energy, and mobility challenges that will arise within the next few decades,
I. whereas internalising external costs is an important step towards the goal of achieving real costing in the transport sector; whereas the possibility of cross-subsidisation of sustainable urban transport concepts needs to be assessed in order to ensure fair treatment between the transport of goods and of passengers and between the different modes of transport; whereas efforts must be made to develop new financial instruments and make better and more frequent use of existing financial instruments such as the Structural and Cohesion Funds in the interest of sustainable urban mobility solutions,
The role of the European Union 1. Welcomes the abovementioned Green Paper as a suitable basis for discussion; welcomes also the comprehensive involvement of those concerned in the process of opinion-forming and the shaping of future EU policies on urban transport; 3.12.2009 EN Official Journal of the European Union C 294 E/45
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2. Considers a clear delineation of the EU's areas of responsibility to be necessary, in line with the subsidiarity and proportionality principles laid down in the Treaties; recognises the principle that local authorities are free to adopt their own mobility policies provided that they do not infringe the relevant national and Community legislation; expects at the same time that — applying the principles mentioned above — the Member States, towns and cities are aware of their own responsibility towards the better organisation and planning of urban mobility; acknowledges, however, that concerted action on urban mobility within the Community can bring a clear added value in some areas;
3. Believes that the EU should define an overall strategy on urban mobility leading to a more rational use of private cars and promote modal shift towards sustainable modes of transport, to support the EU's commitments on environmental protection and on cutting greenhouse gas emissions;
4. Believes that action must be taken at European level in the following areas and calls for:
— the development of an integrated global approach to urban mobility which will serve as a common frame of reference for European, national, regional and local players (municipalities, citizens, businesses and industry); this approach should be based on the principles of the EU internal market in sustainable mobility and should take into account the viability of cities and the effect on demographics (outmi gration from cities); underlines, that this should give a clear stimulus to cities and urban areas to establish integrated and comprehensive Sustainable Urban Mobility Plans (SUMPs), with an emphasis on long-term city planning and spatial planning; in this regard, calls on the Commission to examine how to link SUMPs to EU-Co-financing of transport projects in cities of more than 100 000 inhabitants and to EU legislation, decisions and targets concerning the reduction of accidents, CO2 emissions, local gas emissions and noise;
— reliable, comparable data on all aspects of urban and suburban mobility to be gathered and effectively disseminated, taking into account future changes in the framework conditions (e.g. demographic changes, economic growth, climate change);
— a complete list of Community rules currently in force which affect urban mobility, directly or indirectly, with the potential for improvement and simplification being considered in each case;
— an evaluation of the implementation and application by Member States of European legislation affecting urban transport, in particular public passenger transport;
— a list of the local initiatives taken to tackle some of the problems referred to in the Green Paper (e.g. road charging, green zones, safety on public transport, protection of cyclists etc.); hopes that this list can form the basis for the exchange of best practice in these areas;
— the monitoring of local measures related to access to city centres in order to avoid new trade barriers within the EU internal market;
— a ‘European Platform for Urban Mobility’ or any other effective forum that brings together all data, best practices and policy information on urban mobility in a comprehensible way to allow citizens and policymakers easy access to vital information needed to develop urban mobility policies; stresses that such a platform should draw as much as possible from existing databases, resources and institutions, in order to avoid red tape and bureaucracy;
— an evaluation of the external costs of the various modes of transport and assessment of the possibility of internalising these;
5. Calls on the Commission to work with Member States to overcome national barriers to urban schemes without however proposing EU legislation, which could limit the local flexibility that is required to solve mobility problems; C 294 E/46 EN Official Journal of the European Union 3.12.2009
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Legislation 6. Considers it necessary for the EU to take into account the particular needs of urban transport in the policy areas where it has legislative power (e.g. budget policy, environment policy, social and labour market policy, competition policy, industry policy, regional and cohesion policy, transport and road safety policy, and energy policy);
Standardisation and harmonisation 7. Calls for specific European rules and/or guidance for the standardisation and harmonisation of the following:
— design and functioning of green zones and road pricing; considers that the decision on whether to introduce these measures should be taken at local level taking account of the specific situation of each conurbation; whereas following the principles of the EU internal market, special emphasis should be placed on their interoperable structure so as to enable a free flow of traffic and to avoid the estab lishment of divergent initiatives in different Member States;
— technical and organisational requirements for the interoperability of the various modes of passenger and freight transport;
— mobility of people with disabilities, the elderly, people with young children and the least affluent;
— improvement of road safety according to European and national legislation;
— accessibility and interoperability of Intelligent Transport Systems (ITS) technologies for EU-wide appli cations;
Dissemination and exchange of best practices; 8. Calls also for suitable measures to promote the exchange of best practices, particularly concerning:
— optimising the use of available infrastructure, for example through flexible road use concepts;
— adoption of multimodal transport and mobility solutions (road, rail, water);
— integrated ticketing and billing systems that simplify access to, and the co-modal use of, different transport modes;
— drawing up customised sustainable mobility plans and supporting measures for regional and urban planning (‘city of short distances’), a process in which all parties concerned should be involved from an early stage;
— guidelines to ensure cross-agency cooperation between all departments of local and regional government and the public utility companies when planning schemes within urban areas;
— innovative solutions for efficient goods transport, particularly for local goods distribution in cities, including reliable loading and unloading systems to facilitate last-mile operations;
— sustainable transport services to ensure tourist mobility in urban and suburban areas;
— guidelines for an environmentally aware public procurement policy;
— improvements in clean public local passenger transport with a focus on efficiency, attractiveness, emissions reduction and accessibility, including for disabled persons and persons with reduced mobility, as well as a focus on safety and security; 3.12.2009 EN Official Journal of the European Union C 294 E/47
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— promotion of sustainable mobility chains: walking-cycling-car-sharing-car-pooling-taxi-collective/public mobility;
— better organisation of short-distance transport;
— traffic management measures to optimise logistics and mobility management in favour of transport reduction and/or avoidance, such as teleworking or flexible starting times at workplaces and schools;
— measures to promote virtual mobility, for example e-learning, e-banking, teleshopping and teleconfer encing;
— introduction of green zones and road pricing;
— parking policies and practices, such as the introduction of parking guidance systems;
— improving and extending the use of ITS;
9. Calls for the broadest possible dissemination of data on issues relevant to urban mobility, such as statistics by Eurostat and CARE (Community database on Accidents on the Roads in Europe); requests that access to the CARE database be opened, which would be a powerful tool for exchanging information and expertise among transport professionals;
10. Calls on the Commission to support local authorities by promoting pilot and experimental projects, in particular those aimed at applying an integrated approach to the issue of urban mobility and providing assistance for research in the field of urban planning;
Research and development 11. Stresses the need for research and development in the field of sustainable transport, particularly to promote technological progress in the development of cleaner vehicle technologies; calls on the Commission and the Council to invest in clean, more efficient, consumer oriented and safe urban transport systems, and to take measures to create a market for such systems;
12. Points out that the EU has a role to play in the development and promotion of ITS and in funding innovative technologies, as they can make a significant contribution to, for example, improving road safety and the flow of traffic and logistical efficiency; considers, therefore, that the further development and, above all, increasing the adoption of ITS in the EU should be promoted;
13. Calls on the Commission to set up accessible and compatible lists of research and development projects on urban mobility under the different EU framework programmes, indicating examples applied in practice;
Coordination between authorities 14. Underlines that exchange of best practices concerning mobility governance and better coordination is essential for improving urban transport and mobility, as shortcomings such as a lack of appropriate allocation of responsibilities, a lack of coordination between various local, regional and national authorities and insufficient coordination between the planning of urban, suburban and rural transport systems are becoming apparent; points out that poor coordination between local authorities results in higher delivery costs, more traffic and hence more environmental pollution;
15. Calls urgently for better coordination between neighbouring local authorities in order to ensure a certain degree of consistency and to provide for sustainable and harmonious development of local and regional transport infrastructures in cross-border areas and elsewhere; C 294 E/48 EN Official Journal of the European Union 3.12.2009
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Integrated approach 16. Considers it necessary for urban development and planning to be carried out on an integrated basis, taking account of present and future urban transport needs; the introduction of fast train connections between city centres and river, rail and airport terminals and in particular outlying regions should be a priority for the purposes of large-scale urban development and modernisation;
17. Recalls that, in view of increasingly rapid urbanisation, greater attention should be paid to the suburbs and conurbations;
Individual responsibility 18. Emphasises citizens' individual responsibility and considers it necessary to encourage them to assess critically their behaviour as road users and, if possible, participate actively in local urban mobility forums; believes that almost every citizen can change his/her habits, for example regarding private car use and alternative means of transport (walking, cycling, or public transport), and thereby make an individual contribution to improving the cleanliness and quality of life in urban areas; calls for alternative mobility options to be provided by national, regional and local authorities to facilitate these changes; furthermore calls on European, national, regional and local authorities to step up education and information campaigns to make citizens more aware of their traffic behaviour; stresses the particular importance of education campaigns for the younger generation;
19. Highlights in this connection the importance and growing success of the ‘Car-free Day’ in the context of EU Mobility Week; notes that, in 2007, 1909 towns from 23 Member States participated in this initiative; calls on the Commission and Member States to continue to encourage this initiative and work towards its widespread adoption;
20. Considers that a study should be drawn up which throws light and contains detailed information on all aspects of citizens' urban mobility choices and options (private versus public transport); calls for new and standardised data-gathering on lesser studied issues such as pedestrian and cyclist behaviour and citizens' motivation when making use of certain transport modes and not others;
Financing 21. Believes that the EU can make an important contribution to financing urban passenger and freight transport measures, for example by using the Structural and Cohesion Funds, and calls on the Commission to honour its responsibility in this respect; recalls the financing responsibility of Member States for measures affecting the environment and transport as prescribed in Community law;
22. Calls on the Commission to draw up specific market economy-oriented instruments to create a balanced and favourable framework for sustainable mobility in urban centres;
23. Calls, in the context of the forthcoming review of the EU budget, for the financing of projects from EU funds to be more closely linked to conditions and requirements relating to sustainable transport and environmental protection in future and considers this to be a suitable instrument for promoting environ mentally friendly and widely accessible transport concepts;
24. Calls on the Commission to work, alone or together with the European Investment Bank, for example, on examining the current and future possibilities for financing urban transport; suggests drawing up a comprehensive guide setting out in a systematic manner all funds available for urban transport; calls, in addition, on the Commission to examine the question of cross-subsidisation in the field of transport to ensure fair treatment between all modes of transport and between the transport of passengers and of goods; moreover all aspects of public private partnerships and their possible contribution to sustainable urban mobility concepts should be evaluated; 3.12.2009 EN Official Journal of the European Union C 294 E/49
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25. Calls on the Bureau of the European Parliament and its services to set an example by implementing its own decisions and boosting mobility management measures for Members, staff and visitors with the aim of integrating sustainable mobility into the application of the EMAS Regulation by the Parliament;
* * *
26. Instructs its President to forward this resolution to the Council and the Commission.
Report on the ECB annual report for 2007 P6_TA(2008)0357 European Parliament resolution of 9 July 2008 on the ECB annual report for 2007 (2008/2107(INI)) (2009/C 294 E/11)
The European Parliament,
— having regard to the Annual Report 2007 of the European Central Bank (ECB),
— having regard to Article 113 of the EC Treaty,
— having regard to Article 15 on the Protocol of the Statute of the European System of Central Banks and of the European Central Bank, annexed to the Treaty,
— having regard to its resolution of 2 April 1998 on democratic accountability in the third phase of EMU ( 1 ),
— having regard to its resolution of 20 February 2008 on the Integrated Guidelines for Growth and Jobs (Part: broad guidelines for the economic policies of the Member States and the Community): Launching the new cycle (2008-2010) ( 2),
— having regard to the Commission Communication on EMU@10: successes and challenges after 10 years of Economic and Monetary Union (COM(2008)0238),
— having regard to the ECB's Financial Stability Review in December 2007 and its report on Financial Integration in Europe of April 2008,
— having regard to the Commission's spring economic forecast 2008-2009,
— having regard to Rule 45 of its Rules of Procedure,
— having regard to the report of the Committee on Economic and Monetary Affairs (A6-0241/2008),
A. whereas in 2007 the GDP of the euro area grew by 2,6 % (compared to 2,7 % in 2006) despite heightened uncertainty stemming from the financial turmoil in the second half of the year,
B. whereas the inflation rate was 2,1 % compared to 2,2 % in 2006, despite an economic environment characterised by significant upward price pressures,
C. whereas the ECB continued to adjust interest rates in 2007, to 4,0 % in June 2007 from 3,5 % in December 2006, and maintained that level during the second semester,
( 1 ) OJ C 138, 4.5.1998, p. 177. ( 2 ) Text adopted, P6_TA(2008)0058. C 294 E/50 EN Official Journal of the European Union 3.12.2009
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D. whereas statements made by the International Monetary Fund (IMF) and the Organisation for Economic Cooperation and Development call for a very cautious approach to the raising of interest rates in the euro area,
E. whereas in 2007 the exchange rate of the euro appreciated by 6,3 % in nominal effective terms, and appreciation was particularly pronounced in relation to the US dollar (11,8 %),
F. whereas financial turmoil and large global imbalances represent a risk for worldwide economic growth and exchange rate developments,
G. whereas it is expected that inflation will rise to between 2,0 % and 3,0 % in 2008 in the euro area, largely reflecting the current trend of increased commodity prices, before falling to a more moderate range of between 1,2 % and 2,4 % in 2009,
H. Whereas the main objective of the ECB and of the European System of Central Banks (ESCB) is to maintain price stability while supporting the general economic policies of the Community, as defined in Article 105 of the EC Treaty; acknowledging the full independence of the ECB and the ESCB in this context.
I. whereas the ECB has the dilemma of having to meet the challenges of rising inflation and the first signs of an economic slowdown due to the financial turmoil of recent months,
J. whereas Parliament wishes to help strengthen the role and international authority of the ECB and the euro area on the international stage,
ECB today 1. Welcomes the fact that ten years after the launch of economic and monetary union (EMU), both the ECB and the euro are well-respected and generally accepted within the global economy and notes that the euro has become a currency of global standing that almost equals that of the US dollar;
2. Recalls that the EC Treaty explicitly distinguishes between the ECB's goals of price stability on the one hand and support for general economic policies on the other, and that, therefore, those two goals cannot simply be treated as substitutable; acknowledges the full independence of the ECB in its fulfilment of this double mandate, and welcomes the fact that by means of the Treaty of Lisbon, the ECB should become an EU institution with legal personality and a clearly established independent political and financial status; believes that recognition of the ECB as an EU institution increases the responsibility of Parliament, and, in particular, its committee with responsibility for economic and monetary affairs, as an institution to which the ECB is accountable for its decisions on monetary policy;
3. Welcomes Cyprus and Malta to the EMU and takes note of their successful entry;
Financial stability 4. Recognises the excellent work of the ECB in managing the financial turmoil triggered by the US sub- prime mortgage crisis, in particular the operation launched on 9 August 2007, which provided liquidity in the amount of EUR 95 billion to the markets as a fixed-rate tender at 4,00 %, following the same procedure as normal ECB market operations; notes that the operation, together with fine-tuning operations and the abundant weekly refinancing operations that followed, succeeded in stabilising the very short-term interest rates; considers this, once again, to show the value of a common monetary policy as provided for by the ECB, stabilising the economy in periods of instability;
5. Shares the views of the ECB that the growing complexity of financial instruments and the opacity of exposures of financial institutions can give rise to increased uncertainty regarding the degree of risk involved, the ultimate bearer of the risk, and the extent of potential losses; 3.12.2009 EN Official Journal of the European Union C 294 E/51
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6. Emphasises the need to set up an EU framework for financial supervision, stresses that although the EC Treaty does not entrust the ECB with any direct responsibility related to the prudential supervision of credit institutions and the stability of the financial system, there is a need closely to involve the ECB in supervision;
7. Believes that the ECB has been strengthened by its successful handling of the current financial crisis; welcomes the ECB's enhanced credibility and international recognition; calls on the Euro Group to follow the ECB's example and to enhance its expertise and coordination in matters relating to the regulation and supervision of financial markets;
8. Highlights the increased need for cooperation between central banks and supervisory authorities, in order to uphold stability in the financial markets, in particular taking into account the increasingly inte grated financial systems; asks the ECB to continue to push for improved integration and communication on an intra-EU level as well as in its relationship with other central banks and relevant institutions, in particular as regards the relationship with the Bank of England, since London is the most important financial centre within the European Union; calls on the ECB to play an active role in the various forums discussing changes in supervision, such as the Lamfalussy follow-up;
9. Recognises that major central banks such as the ECB and the US Federal Reserve warned against underestimating the risks to the economy before either the IT-bubble burst in 2000/2001 or the sub-prime crisis in 2007; notes that the financial markets failed effectively to respond to those warnings; asks the ECB, therefore, to analyse that response and suggest how to improve the correlation between such forward- looking warnings and market reactions; calls on the ECB, in the light of recent financial turmoil, to analyse and evaluate the aftermath of the financial crisis and examine whether it has sufficient instruments for handling a cross-border European financial crisis, and which powers it needs in order to improve macro- prudential supervision in the euro area;
Economic and monetary development 10. Notes the ongoing discussion on how to define price stability, in regard to which some argue in favour of a direct inflationary targeting; believes, however, that a two-pillar system based on M3 is the most suitable way of measuring price stability; calls on the ECB to take measures for a continuous improvement of that system; recognises the added value of the additional information and early warning of inflationary risk and the operational discretion that such a system provides;
11. Highlights that the risks of asymmetric economic developments within the euro area could increase with enlarged membership as the differences in size and maturity of members' economies grow; calls on the ECB to pay particular attention to this situation and tackle those risks at an early stage as well as communicate them to the Member States;
12. Calls on all Member States participating in the euro area, the Member States that have opted out, as well as the Member States applying to join, to take note of those challenges and therefore fully respect the criteria of the Stability and the Growth Pact and fulfil the Maastricht criteria, as appropriate, as this, together with fiscal consolidation and wage policy in line with developments as regards growth and productivity, provides the strongest protection against challenges presented by asymmetric developments;
13. Emphasises that against the background of the recent correction of growth expectation, any further raising of interest rates should be undertaken with caution in order not to endanger economic growth; points out that, in order to support the economic recovery, Member States must implement both the necessary structural reforms and investment activities;
14. Expects the Council to treat all euro area applicant Member States equally and fully respect the assessment and recommendations of the ECB concerning their readiness for joining the euro area; C 294 E/52 EN Official Journal of the European Union 3.12.2009
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15. Takes note of the appreciation of the euro especially with respect to the US dollar; underlines the goal of price stability, but recognises that strong and rapid changes in the euro exchange rate should not impede the ECB's ability to manage its monetary policy, confronted by a source of inflation, or, alternatively, difficult growth perspectives for the export-dependent countries; asks the ECB to monitor this development and to take action if deemed necessary and invites the Euro Group, the Commission and the ECB to step up coordination of their action in the sphere of exchange rate policy;
16. Recognises the increasing upward pressure on inflation to which food and energy prices contribute in particular; calls on the ECB to strengthen its dialogue with national central banks on the issue to promote a strong focus on price stability globally;
Governance and effective decision making 17. Recalls the ongoing call for more transparency in the ECB which would result in increased credibility and predictability and appreciates the improvements in this area that have already been implemented; recognises, in this respect, the difficulties relating to the publication of the minutes of the ECB Governing Council's meetings, as differences in individual positions could be interpreted as representing national interests, leading to pressure from Member State governments on Governing Council members; asks the ECB to provide Parliament and the public with an annual summary of measures taken to improve its performance in line with this resolution;
18. Considers that the monetary policy dialogue between Parliament and the ECB has been a success, and one which should be built on further; emphasises that the ex-post accountability of the ECB is of primordial importance for confidence, and hence stability, on the financial markets; considers that it is important for the unity of the ECB's Executive Board and Governing Council to continue to be confident in their public presentation; supports a targeted information policy on the part of the ECB towards Parliament, the Council, the Commission and the Euro Group; is disappointed by the low level of commitment that the ECB has demonstrated in its response to Parliament's resolution of 12 July 2007 on the ECB annual report for 2006 ( 1 ); strongly stresses that the call for improvements to the ECB's communication policy must be seen only in the context of the simultaneous preservation of the independence of the ECB and its bodies;
19. Calls on the ECB, in its statements following decisions taken by its Governing Council, to elaborate clearly about whether, in the course of discussions, a consensus was reached easily or if divergent views persisted, since this would provide markets with more information without hampering the common European perspective for the decision of the ECB's Governing Council;
20. Calls on the ECB to present its ideas for reforming the structure of the Governing Council, as the number of governors is expected to exceed 15 from 1 January 2009; notes that with the increasing number of euro area countries reforms will become even more necessary; supports the ECB's earlier suggestion that the economic weight of participating Member States should be treated as the most significant factor for the rotating voting rights, and that the number of decision makers should be kept low in order to ensure efficiency;
21. Considers that the independence of the ECB, including the procedure for appointing the members of its Executive Board, has proved its worth; stresses that Article 112(2)(b) of the EC Treaty provides for the members of the Executive Board to be appointed from among persons of recognised standing and profes sional experience in monetary or banking matters, and emphasises that their nationality should be irrelevant and that they will continue to be judged by the strict criteria set out in the EC Treaty, such as that of their qualifications; considers that ex-ante democratic accountability and transparency would improve if the Council evaluated several potential candidates and if the candidate proposed by the Council were then subject to a vote of approval by Parliament;
( 1 ) Texts adopted, P6_TA(2007)0349. 3.12.2009 EN Official Journal of the European Union C 294 E/53
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22. Believes that given the ECB's future status under the Treaty of Lisbon, Parliament's role in appointing members of the Executive Board should be enhanced; stresses its willingness, together with the other institutions, to explore possible improvements of the appointment procedure before the next renewal of the Executive Board in 2010;
23. Recognises the increasing role of the Euro Group and its President for setting a major part of the economic agenda within the European Union, in particular the more formal structure and central role in coordinating the economic policy within the Euro Group, as set out in Article 136 of the EC Treaty, as amended by the Treaty of Lisbon, also for Member States not participating in the euro area; supports a strengthening of the development of the euro area speaking with one voice in international forums as provided for in Article 138 of the EC Treaty, as amended by the Treaty of Lisbon, and by the President of the Euro Group;
24. Welcomes the cooperation between the ECB, the Commission and the financial services industry in the successful launch of the Single Euro Payment Area (SEPA) and the Short-Term European Paper (STEP) initiatives; considers these to be positive contributions from the financial services industry for driving forward financial integration in the European Union;
25. Welcomes the start of Target 2 operations and the finalised migration activities to the single shared platform; considers that the use of the single shared platform is an important step in the direction of financial integration and reduction of clearing and settlement costs; believes that it is urgent that the ECB now proposes a governance structure for Target 2 securities (T2S);
External dimension of the euro 26. Notes a steady rise in the status of the euro as an international currency; points out that the European Union's representation concerning economic and monetary affairs in international forums poorly reflects the true economic weight of the euro area and that this may be seen as an obstacle for an increased influence in international financial affairs; calls, therefore, for concrete steps to be taken towards a unified euro area representation within international financial institutions such as the IMF;
27. Encourages the ECB to continue moving towards strengthening its coordinating role in international financial contexts; believes that an internationally stronger status for the euro will lead to benefits for the euro area which will encourage Member States currently not participating, to seek full membership;
* * *
28. Instructs its President to forward this resolution to the Council, the Commission, the Euro Group, and the European Central Bank. C 294 E/54 EN Official Journal of the European Union 3.12.2009
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Census of the Roma on the basis of ethnicity in Italy P6_TA(2008)0361 European Parliament resolution of 10 July 2008 on the census of the Roma on the basis of ethnicity in Italy (2009/C 294 E/12)
The European Parliament,
— having regard to human rights and fundamental freedoms, the principles of equality and non-discrimi nation, the right to dignity, privacy and the protection of personal data, the rights of the child, the rights of persons belonging to minorities, as recognised by international and European conventions protecting human rights and fundamental freedoms, notably the UN Convention on the Rights of the Child, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the related case law of the European Court of Human Rights ( 1), and the Charter of Fundamental Rights of the European Union,
— having regard to the Treaties, and notably to Articles 2, 6 and 7 of the Treaty on European Union and Articles 13 (measures against discrimination based on, inter alia, racial or ethnic origin), 12 (prohibition of discrimination on the basis of nationality), 17 (citizenship of the Union), 18 (freedom of movement) and 39 et seq. (free movement of workers) of the EC Treaty,
— having regard to Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin ( 2) and notably to the definitions of direct and indirect discrimination, Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States ( 3 ) and Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data ( 4),
— having regard to the Commission Staff Working Document on Community Instruments and Policies for Roma Inclusion (SEC(2008)2172) and the Annual Report for 2008 of the European Union Agency for Fundamental Rights,
— having regard to its previous resolutions on, inter alia, the Roma, racism and xenophobia, measures against discrimination, and freedom of movement, namely those of 28 April 2005 on the situation of the Roma in the European Union ( 5), of 1 June 2006 on the situation of Roma women in the European Union ( 6), of 15 November 2007 on the application of Directive 2004/38/EC on the right of EU citizens and their family members to move and reside freely within the territory of the Member States ( 7 ), of 13 December 2007 on combating the rise of extremism in Europe ( 8 ), and of 31 January 2008 on a European Strategy on the Roma ( 9),
— having regard to Rules 108(5) of its Rules of Procedure,
( 1 ) Notably the ruling on the case D.H. and Others v. the Czech Republic [GC], no. 57325/00, ECHR 2007 — (13.11.07). ( 2 ) OJ L 180, 19.7.2000, p. 22. ( 3 ) OJ L 158, 30.4.2004, p. 77. ( 4 ) OJ L 281, 23.11.1995, p. 31. ( 5 ) OJ C 45 E, 23.2.2006, p. 129. ( 6 ) OJ C 298 E, 8.12.2006, p. 283. ( 7 ) Texts adopted, P6_TA(2007)0534. ( 8 ) Texts adopted, P6_TA(2007)0623. ( 9 ) Texts adopted, P6_TA(2008)0035. 3.12.2009 EN Official Journal of the European Union C 294 E/55
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A. whereas the EU is a community of values based on democracy and the rule of law, human rights and fundamental freedoms, equality and non-discrimination, including the protection of persons belonging to minorities, and whereas the EU is committed to fighting racism and xenophobia, as well as discrimi nation based on any of the grounds referred to in Articles 12 and 13 of the EC Treaty,
B. whereas these values are implemented in the EU through the abovementioned anti-discrimination and freedom of movement directives, as well as the policies underpinning them, and Member States are bound to implement them fully and refrain from acts that could infringe them,
C. whereas, in its resolution of 31 January 2008, Parliament urged the Member States to solve the problem of slums and illegal camps, where there are no hygiene or safety standards and where a large number of Roma children die in domestic accidents, particularly fires, caused by the lack of such standards,
D. whereas the Roma are one of the main targets of racism and discrimination, as shown by the recent incidents involving attacks and aggression against Roma in Italy and Hungary and further underlined by recent Eurobarometer surveys,
E. whereas in its abovementioned Staff Working Document the Commission emphasises that a series of EU legislative and financial instruments and policies are already available to Member States in order to fight discrimination against the Roma and promote the inclusion and integration of the Roma, particularly by exchanging and promoting good practices in this field,
F. whereas the Roma population is a pan-European ethno-cultural community without a nation State and consequently the EU has a particular responsibility to devise a EU Roma strategy and policy together with the Member States,
G. whereas on 21 May 2008 the Italian Government issued a decree declaring a state of emergency in relation to nomad settlements in the regions of Campania, Lazio and Lombardy ( 1), based on Law No 225 of 24 February 1992 on the establishment of a national civil protection service, which empowers the government to declare a state of emergency in the event of ‘natural disasters, catastrophes or other events that, on account of their intensity and extent, have to be tackled using extraordinary powers and means’,
H. whereas this decree was followed on 30 May 2008 by further orders ('ordinanze') issued by the Prime Minister ( 2 ) that:
— designate the Prefects of Rome, Milan and Naples as Commissioners (‘Commissari delegati’) for the Roma emergency,
— grant them extraordinary powers to identify persons, including minors and including by taking fingerprints,
— empower them to take the necessary measures against those who are to or could be expelled by virtue of an administrative or judicial measure,
— allow them to derogate (albeit without prejudice to the rule of law and EU law) from a series of laws concerning a wide spectrum of issues affecting constitutional prerogatives (for instance the right to be informed when subject to an administrative procedure such as fingerprinting and the requirement that persons be dangerous or suspect or that they refuse to identify themselves before undergoing identity screening involving photographing, fingerprinting or the gathering of anthropometric data),
( 1 ) Gazzetta Ufficiale (Italian Official Journal) No 122 of 26 May 2008, p. 9. ( 2 ) No 3676 on Lazio, No 3677 on Lombardy and No 3678 on Campania, Gazetta Ufficiale No 127 of 31 May 2008, pp. 7, 9 and 11 respectively. C 294 E/56 EN Official Journal of the European Union 3.12.2009
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I. whereas the decree declared a state of emergency for a period of one year, until 31 May 2009,
J. whereas the Italian Minister of the Interior has repeatedly declared that the purpose of taking fingerprints is to carry out a census of the Roma population in Italy and that he intends to allow the fingerprinting of Roma living in camps, minors included, by way of derogation from ordinary laws, affirming that Italy will proceed with these identification operations that will be concluded before 15 October 2008 in Milan, Rome and Naples,
K. whereas fingerprinting operations are already under way in Italy, notably in Milan and Naples, and whereas according to information provided by NGOs such data are stored by Prefects in a database,
L. whereas Commissioners Barrot and Špidla have underlined, in this respect, the importance of the principles of equality and non-discrimination in the EU, and have put forward a new horizontal anti- discrimination directive, affirming that EU law clearly forbids discrimination based on race and ethnicity,
M. whereas Unicef, the Secretary General of the Council of Europe and the Commissioner for Human Rights of the Council of Europe have expressed their concerns, while the Commissioner has sent a memorandum to the Italian Government concerning, inter alia, racism, xenophobia and the protection of the human rights of the Roma,
N. whereas the Italian Data Protection Authority has requested information from the competent authorities, notably the Prefects of Rome, Milan and Naples, concerning the possibility of fingerprinting Roma, including minors, expressing concern that it could entail discrimination that might also affect personal dignity, notably that of minors,
1. Urges the Italian authorities to refrain from collecting fingerprints from Roma, including minors, and from using fingerprints already collected, pending the forthcoming announced evaluation by the Commission of the measures envisaged, as this would clearly constitute an act of direct discrimination based on race and ethnic origin prohibited by Article 14 of the ECHR and furthermore an act of discrimi nation between EU citizens of Roma origin and other citizens, who are not required to undergo such procedures;
2. Shares the concerns of Unicef and considers that it is inadmissible, with the aim of protecting children, to violate their fundamental rights and to criminalise them, as well as those expressed by the Council of Europe and by many NGOs and religious communities, and considers that the best way to protect the rights of Roma children is to guarantee them equal access to quality education, housing and health care, within the framework of inclusion and integration policies, and to protect them from exploitation;
3. Calls on the Member States to take firm steps to protect unaccompanied minors subjected to exploi tation, irrespective of their ethnic origin and nationality, and, where the identification of such minors would be useful for this purpose, to employ, on a case-by-case basis, ordinary, non-discriminatory identification procedures ensuring full respect for every form of legal guarantee and protection;
4. Shares the view of the Commission that such acts would constitute a violation of the prohibition on direct and indirect discrimination, particularly as laid down in Council Directive 2000/43/EC and enshrined in Articles 12, 13 and 17 to 22 of the EC Treaty;
5. Reaffirms that policies which increase exclusion will never be effective in combating crime and will not contribute to crime prevention or security;
6. Condemns utterly and without equivocation all forms of racism and discrimination faced by the Roma and others regarded as ‘Gypsies’; 3.12.2009 EN Official Journal of the European Union C 294 E/57
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7. Calls on the Member States to review and repeal laws and policies that discriminate against the Roma on the basis of race and ethnicity, directly or indirectly, and calls on the Council and the Commission to monitor the application by the Member States of the Treaties and of the directives on measures against discrimination and on freedom of movement in order to ensure their consistent and full implementation and to take the necessary measures if that is not the case;
8. Calls on the Commission to thoroughly evaluate the legislative and executive measures adopted by the Italian Government in order to check their compatibility with the Treaties and with EU law;
9. Expresses concern at the affirmation — contained in the administrative decrees and orders issued by the Italian Government — that the presence of Roma camps around large cities in itself constitutes a serious social emergency with repercussions for public order and security which justify declaring a state of emergency for one year;
10. Is concerned that, owing to the declaration of a state of emergency, extraordinary measures in derogation from laws may be taken by Prefects to whom authority has been delegated to implement all measures, including the collection of fingerprints, based on a law concerning civil protection in the event of ‘natural disasters, catastrophes or other events’, which is not appropriate or proportionate to this specific case;
11. Calls on the Council and the Commission to further strengthen EU policies on the Roma by launching an EU Roma Strategy to support and promote actions and projects by Member States and NGOs linked to the integration and inclusion of the Roma, particularly of Roma children;
12. Calls on the Commission and the Member States, within the framework of an EU Roma Strategy and in the context of the Decade of Roma Inclusion 2005-2015, to enact legislation and policies to support Roma communities while promoting their integration in all fields to launch anti-racism and anti-discrimi nation programmes in schools, employment and the media and to enhance the exchange of expertise and best practices;
13. Reiterates in this context the importance of developing strategies at EU and national level, making full use of the opportunities provided by EU funds, to abolish Roma segregation in education, to ensure equal access to quality education for Roma children (participation in mainstream education, introduction of special scholarship and trainee programmes), to ensure and improve Roma access to labour markets, to provide equal access to health care and social security benefits, to combat discriminatory practices in the provision of housing, and to increase the participation of the Roma in social, economic, cultural and political life;
14. Welcomes the creation by the Commission of an anti-discrimination working group with represen tatives of all the Member States and calls for the competent Parliamentary committee to be associated and have full access to the proceedings of the working group; calls on its competent committee to establish a dialogue with the national parliaments of the Member States on this issue;
15. Instructs its President to forward this resolution to the Council, the Commission, the governments and parliaments of the Member States, the Secretary General of the Council of Europe, the Commissioner for Human Rights of the Council of Europe, Unicef and the Italian Data Protection Authority. C 294 E/58 EN Official Journal of the European Union 3.12.2009
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Situation in China after the earthquake and before the Olympic Games P6_TA(2008)0362 European Parliament resolution of 10 July 2008 on the situation in China after the earthquake and before the Olympic Games (2009/C 294 E/13)
The European Parliament,
— having regard to its resolution of 22 May 2008 on the natural disaster in China ( 1 ),
— having regard to its resolution of 10 April 2008 on Tibet ( 2 ),
— having regard to its resolution of 13 December 2007 on the EU-China Summit and the EU-China human rights dialogue ( 3),
— having regard to the outcome of the 25th round of the EU-China Human Rights Dialogue in Brdo, Slovenia, on 15 May 2008,
— having regard to Rule 103(4) of its Rules of Procedure,
A. whereas both China and the EU are committed to contributing to peace, security and sustainable development in the world,
B. having regard to the scale of the destruction wrought by the violent earthquake in South-west China on 12 May 2008; whereas that earthquake claimed tens of thousands of victims, in particular in Sichuan province; whereas, according to the latest estimate, 10 million people were affected by the earthquake and almost 70 000 killed, including thousands of schoolchildren who died when their classrooms collapsed,
C. whereas the Chinese Government took exceptional emergency measures, deploying personnel — including part of the army — and medical teams to aid the inhabitants of the stricken region,
D. having regard to the extraordinary mobilisation and solidarity of the entire Chinese people and of the international community in efforts to aid the victims of the disaster,
E. whereas the opening of Tibet to tourists and the media should not be used as a ‘public relations event’ but as a real opening, which will allow journalists, the media and tourists to visit the region of Tibet,
F. having regard to the concluding statements of the International Olympic Committee (IOC), which underlined that granting the 2008 Olympic Games to China would help to open up the country and improve the human rights situation,
1. Expresses satisfaction at the developments in EU-China relations, the sectoral dialogues and the closer cooperation on various globalised issues;
2. Calls on the Chinese authorities to bear in mind that earthquake warnings constitute one benchmark of the development of a country; stresses, therefore, the vital importance of responding actively and promptly to any warning that the scientific community can give the authorities in the unlikely but possible situation of another natural disaster in China;
( 1 ) Texts adopted, P6_TA(2008)0232. ( 2 ) Texts adopted, P6_TA(2008)0119. ( 3 ) Texts adopted, P6_TA(2007)0622. 3.12.2009 EN Official Journal of the European Union C 294 E/59
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3. Welcomes the resumption of contacts, after the events of March 2008 in Lhasa, between the represen tatives of the Dalai Lama and the Chinese authorities; encourages the two parties to intensify these contacts so as to establish the bases for mutual trust, without which it will be impossible to arrive at a mutually acceptable political solution;
4. Regrets that while there has been major progress in relations with China as regards trade and economics, that progress has not been accompanied by substantial achievements as regards issues relating to human rights and democracy;
5. Deplores the fact that China's human rights record remains a matter of concern owing to widespread and systematic human rights abuses; recalls the commitments to human rights made by China when the country won its bid to host the Olympic Games;
6. Condemns China's frequent use of the death penalty and calls on the Chinese authorities to establish a moratorium on executions;
7. Deplores the fact that no international calls have succeed in stopping the Chinese authorities from pursuing their follow-up to the riots of 14 March 2008 in Tibet, with participants in the protest in Lhasa still being traced, detained and arbitrarily arrested, and their families being given no information as to their whereabouts, although this is required by Chinese law; calls on the Chinese authorities to halt its ‘patriotic re-education’ campaign, which has been intensified since the beginning of April, during the Olympic Games in the name of the long-established ‘Olympic Truce’;
8. Notes with satisfaction that China rapidly agreed to accept the assistance of the international community in helping the victims of the earthquake in the Sichuan region and facilitating the operation of voluntary humanitarian aid organisations in distributing aid;
9. Stresses the importance of the support of the European Union, of its Member States and of the international community for the reconstruction phase in the affected region;
10. Calls on China to abide by the public commitments which it made with regard to human rights and minority rights, democracy and the rule of law and which the IOC announced when it decided to allow China to organise the Olympic Games;
11. Urges the Chinese authorities to take this historic opportunity to demonstrate to the world that the granting of the Olympic Games to Beijing has provided a unique chance to improve their human rights record by displaying clemency to all political prisoners and human rights activists in gaol, including those in gaol in Tibet following the uprising of March 2008 (except, of course, for perpetrators of violent crimes); calls, moreover, on the Chinese authorities to stop discrimination against rural migrants and ethnic minorities and to refrain from harassing trade-union activists, lawyers and journalists when they denounce violations of fundamental freedoms; reiterates its conviction that the imprisonment of such people is against the universal and accepted spirit of the ius gentium (law of nations);
12. Instructs its President to forward this resolution to the Council, the Commission, the governments and parliaments of the Member States, the Government of the People's Republic of China and the Executive Board of the International Olympic Committee. C 294 E/60 EN Official Journal of the European Union 3.12.2009
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The Commission's 2007 enlargement strategy paper P6_TA(2008)0363 European Parliament resolution of 10 July 2008 on the Commission's 2007 enlargement strategy paper (2007/2271(INI)) (2009/C 294 E/14)
The European Parliament,
— having regard to the Commission's Communication on the Enlargement Strategy and Main Challenges 2007-2008 (COM(2007)0663),
— having regard to its resolutions of 16 March 2006 on the Commission's 2005 enlargement strategy paper ( 1) and of 13 December 2006 on the Commission's Communication on the Enlargement Strategy and Main Challenges 2006-2007 ( 2 ),
— having regard to its previous resolutions on the countries of the Western Balkans, Turkey and the European partners of the European Neighbourhood Policy (ENP),
— having regard to Rule 45 of its Rules of Procedure,
— having regard to the report of the Committee on Foreign Affairs and the opinion of the Committee on Culture and Education (A6-0266/2008),
A. whereas the EU's Enlargement Strategy has both an external and an internal dimension,
B. whereas the external dimension of this strategy involves the promotion of reforms, in line with European standards, of democracy, of respect for human rights, of peace and of stability and prosperity,
C. whereas the internal dimension of the Enlargement Strategy directly influences the EU's ability to pursue its policy objectives and to achieve an ever closer union, as laid down in the Treaties,
D. whereas a politically integrated EU capable of developing ambitious solidarity and stability policies is necessary,
E. whereas, in accordance with the Treaty of Rome, ‘any European state may apply to become a member of the Community’,
F. whereas, since previous enlargements have undoubtedly been a success both for the EU and for the Member States which joined it and have contributed to the stability, development and prosperity of Europe as a whole, it is essential to create the conditions needed to ensure that future enlargements are a success too,
G. whereas the Stabilisation and Association Agreements are making an important and successful contribution to relations between the EU and the western Balkan countries with a view to their European integration, and are promoting regional cooperation,
H. whereas the 2003 European Council held in Thessaloniki and the 2006 European Council held in Brussels reaffirmed the EU's intention to respect its commitments to the countries of south-eastern Europe and the western Balkans,
( 1 ) OJ C 291 E, 30.11.2006, p. 402. ( 2 ) OJ C 317 E, 23.12.2006, p. 480. 3.12.2009 EN Official Journal of the European Union C 294 E/61
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I. whereas the renewed consensus adopted by the European Council in December 2006 is based on the principles of consolidation of commitments, fair and rigorous conditionality and better communication with the public,
J. whereas the Enlargement Strategy is much more than a negotiating methodology, reflecting as it does the core belief that the EU is a community of shared values and is intricately linked to the debate on the EU's objectives and effectiveness, its future and its role in the neighbourhood and the world,
K. whereas the methodology and criteria outlined in the abovementioned Commission Communication for pursuing accession negotiations deserve full support and should be implemented rigorously, and whereas political considerations should not override strict compliance with those criteria,
L. whereas the EU's Enlargement Strategy should be part of a broad array of policy instruments designed to consolidate democracy and build stability and social development in the EU's neighbourhood and to enhance the EU's role in the world,
M. whereas these policies should encompass the variety of situations prevailing in the EU's neighbourhood, notably in those countries which have candidate status and have started negotiations, those which have candidate status but have not yet started negotiations, those which have membership prospects, those which have a European integration goal and those which merely wish to have close neighbourly ties with the EU,
N. whereas these policies should be independent and without prejudice to provisions allowing a given country to advance from one type of relationship with the EU to another, if the necessary internal and external conditions of that country are fulfilled,
O. whereas the Eastern partners of the ENP are clearly identifiable as European countries and some of them have expressed a European perspective goal,
P. whereas, as stated in its abovementioned resolution of 13 December 2006, countries with European prospects should benefit from a close bilateral or multilateral relationship with the EU, matching their specific needs and interests; whereas this option, which entails a broad spectrum of operational possi bilities, would grant partner countries a stable, long-term perspective of institutionalised relations with the EU and provide the incentive necessary to foster stability, peace, respect for human rights and democratic and economic reform in the countries concerned,
Q. whereas, in accordance with the same resolution, it would be up to all countries with recognised membership prospects to decide whether they want to benefit from similar multilateral arrangements as an intermediate step towards full membership,
R. whereas the EU Enlargement Strategy needs also to be effectively explained and communicated to the current EU citizens as well as to all future citizens so as to ensure that they are fully aware of the policies in question and boost public support for the EU's commitments towards its neighbours, thus guaranteeing the EU's credibility and solidarity as a partner while seeking to respond to legitimate concerns,
1. Agrees with the Commission that past enlargements have been a great success, benefiting the old as well as the new EU Member States by fostering economic growth, promoting social progress and bringing peace, stability, freedom and prosperity to the European continent; believes that lessons can be learned from previous accessions and that further ways of improving the quality of the enlargement process must be based on the positive experiences accumulated so far;
2. Reaffirms its firm commitment to all candidate countries and to those which have been given clear membership prospects, with the understanding that full and rigorous compliance with all the criteria laid down in Copenhagen in 1993 is imperative, that the EU must make efforts to strengthen its integration capacity and that this capacity should be fully taken into account; C 294 E/62 EN Official Journal of the European Union 3.12.2009
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3. Recalls in this context that, for the countries of the former Yugoslavia, full cooperation with the International Criminal Tribunal for the former Yugoslavia is also a sine qua non;
4. Takes the view that the EU's Enlargement Strategy should comply with the provisions of the EU Treaty and reflect the commitments already entered into by the EU, as well as striking a balance between the EU's geo-strategic interests, the impact of political developments outside its borders, and the EU's integration capacity, including its ability to cope with future internal and external challenges and to realise its political integration project;
5. Recalls in this context the need to undertake the necessary internal reforms, aimed at, inter alia, increasing efficiency, social cohesion and strengthening democratic accountability;
6. Recalls that integration capacity is linked to the EU's ability at a given point in time to decide on and thus to achieve its political objectives, in particular the aims of promoting economic and social progress and a high level of employment in its Member States, of asserting its identity and its ability to act on the international scene, of promoting the rights and interests of EU Member States and European citizens alike, of developing an area of freedom, security and justice, of fully maintaining and building on its acquis communautaire and of upholding fundamental rights and freedoms, as laid down in the Charter of Funda mental Rights of the European Union;
7. Considers that the concept of integration capacity comprises four elements:
(i) accession states should contribute to and not impair the ability of the EU to maintain momentum towards the fulfilment of its political objectives;
(ii) the institutional framework of the EU should be able to deliver efficient and effective government;
(iii) the financial resources of the EU should be adequate to meet the challenges of social and economic cohesion and of the EU's common policies;
(iv) a comprehensive communication strategy should be in place to inform public opinion about the implications of enlargement;
8. Stresses that, in order to enhance the credibility and the effectiveness of the enlargement strategy, the Copenhagen criteria must be fully respected and complied with by Member States as well, in order to avoid requiring of applicant countries higher standards than those applied in some parts of the EU;
9. Recalls, furthermore, that the economic structure and interests of each new Member State could have an impact on the direction which the EU's policies and budget take and that the policy adaptations required could affect the nature of the EU itself; recalls that a cohesive Community of nations and citizens must be based on coherent policies and solidarity of interests;
10. Considers that the budgetary as well as the broader economic and social implications of further possible enlargements must be taken into due consideration during the mid-term review of the 2007-2013 multi-annual financial framework and the drafting of subsequent financial frameworks;
11. Is also convinced that any acceding State should try to resolve its main internal problems, particularly those concerning its territorial and constitutional set-up, before it can join the EU; takes the view that, before and during the negotiations with any such State, the EU should assist in resolving those issues;
12. Endorses the emphasis on consolidation, conditionality and communication as guiding principles of the EU Enlargement Strategy;
13. Takes the view that every enlargement must be followed by adequate consolidation and political concentration, that is to say, by a serious reassessment of the EU's policies and means in order to respond to the expectations of European citizens and to guarantee the viability of the EU as a political project; 3.12.2009 EN Official Journal of the European Union C 294 E/63
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14. Is concerned that enlargement without adequate consolidation and preparation could negatively influence the EU's internal cohesion and could have serious implications for the EU's capacity to act, since it would weaken its institutions, make Member States more vulnerable to external pressure and undermine the EU's credibility as global actor;
15. Believes, moreover, that the success of the enlargement process (and, thus, the success of the EU political integration process) can only be achieved if there is clear and long-lasting public support for the EU membership of each candidate country; is therefore of the view that further enlargements should be accompanied by a concerted communication policy involving all EU Institutions and Member States' Governments, as well as representatives of civil society, and that this communication policy should be designed to explain to the EU's citizens the political, economic, social and cultural benefits of enlargement; therefore reminds the governments and parliaments of the Member States that it is their responsibility adequately to inform public opinion about the positive achievements of former enlargements, the status quo of the ongoing negotiations and the issues connected with the accession of new Member States;
16. Takes the view that countries with European prospects should make every effort to explain, involve and prepare their public opinion for integration into the EU, involving civil society in this process from the outset;
17. Is also convinced that the Enlargement Strategy should be flanked by a more diversified range of external contractual frameworks and that these frameworks could be structured as mutually permeable concentric circles, with countries being offered the opportunity, under strict but clear internal and external conditions, to move from one status to another if they so wish and if they fulfil the criteria pertaining to each specific framework;
18. Affirms that participation in the ENP does not constitute, either in principle or in practice, a substitute for membership or a stage leading necessarily to membership; takes the view that the conceptual, political and legal gap existing between the EU's Enlargement Strategy and its Neighbourhood Policy needs to be filled in order to respond to the expectations of its eastern neighbours; is convinced that the Commission's strengthened neighbourhood policy is not sufficient in this respect, although it represents an already positive step in the right direction, and that a more substantive qualitative change is required;
19. Suggests, therefore, that, as regards those eastern neighbours which, in view of their political, economic and social situation and the EU's current integration capacity, at present do not enjoy membership prospects but at the same time fulfil certain democratic and economic conditions, the EU should establish an area based on common policies covering, in particular, the rule of law, democracy and human rights, foreign and security policy cooperation, economic and financial issues, trade, energy, transport, environmental issues, justice, security, migration, visa-free movement and education; takes the view that these common policies should pursue the overall goal of assisting the eastern neighbours gradually to achieve EU standards and thus open the way for their closer integration into the European fold; is also convinced that the common policies referred to above should be shaped jointly with the participating countries on the basis of specific decision-making mechanisms, and should be underpinned by adequate financial assistance; takes a positive view of the Polish-Swedish proposal for an Eastern Partnership submitted to the meeting of the General Affairs and External Relations Council of 26-27 May 2008, provided that the initiative which that proposal involves is pursued within the framework of the EU;
20. Welcomes the re-launch, within the framework of the EU, of the ‘Barcelona Process: A Union for the Mediterranean’ as a positive step in the EU's relations with the southern neighbours; believes that this new development strengthens the argument in favour of specific contractual multilateral relations also with the EU's eastern neighbours, which, compared to the southern partners, have clear European ambitions and perspectives; recalls that, as a first step, these relations should translate themselves into the establishment of a Free Trade Area, to be followed by closer relations along the lines of a European Economic Area Plus (EEA +), of a European Commonwealth or of specific regional cooperation frameworks; C 294 E/64 EN Official Journal of the European Union 3.12.2009
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21. Reiterates, in the context of the abovementioned specific regional cooperation frameworks, the importance of devising a more sophisticated and comprehensive EU strategy for the Black Sea region, that goes beyond the current synergy initiative and envisages the establishment of a Black Sea Cooperation Agreement, which should include the EU, Turkey and all Black Sea littoral states as equal partners, while seeking the full involvement of Russia, and which could, at a later stage, develop into a Union of the Black Sea; believes that such a multilateral framework would not only offer the countries involved the possibility of strengthening their cooperation with the EU across a wide variety of policy fields, but would also allow the EU to play a more active role in finding peaceful solutions to the region's conflicts, thus contributing positively to security in the region;
22. Believes at the same time that countries which enjoy recognised membership prospects but still have considerable ground to cover before they can attain the political, economic and social conditions necessary to achieve candidate status, could usefully participate, on a totally voluntary basis, in arrangements similar to the abovementioned bilateral or multilateral frameworks; recalls that such an intermediate step would facilitate the deployment of all instruments available to the EU in order to help the countries concerned on their path towards full membership;
23. Welcomes in this context the Commission Communication on the Western Balkans: Enhancing the European Perspective, of 5 March 2008 (COM(2008)0127), which outlines a range of measures for supporting the countries in the region in their efforts towards EU integration and for deepening the EU's relations with them, whether in the areas of trade, energy, education and/or research; expresses satisfaction at the signing of the Stabilisation and Association Agreement on 7 November 2007 with the Republic of Serbia and on 16 June 2008 with Bosnia-Herzegovina, which it regards as a further step in consolidating the ties between the region concerned and the EU; calls in this respect for the negotiations for visa liberalisation with the countries of the western Balkans to be speeded up, in order to facilitate their participation in Community programmes;
24. Urges the Commission to come up with concrete proposals for a more diversified external relations policy towards the EU's neighbours, along the lines outlined in the present resolution, and, when considering its own administrative set-up, at least to establish a link between the activities carried out by the Enlargement and the RELEX Directorates-General;
25. Instructs its President to forward this resolution to the Council and the Commission.
On the situation in Zimbabwe P6_TA(2008)0364 European Parliament resolution of 10 July 2008 on the situation in Zimbabwe (2009/C 294 E/15)
The European Parliament,
— having regard to its previous resolutions on Zimbabwe, in particular that of 24 April 2008 ( 1),
— having regard to Council Common Position 2008/135/CFSP ( 2) of 18 February 2008 renewing until 20 February 2009 the restrictive measures against Zimbabwe imposed under Common Position 2004/161/CFSP ( 3),
— having regard to the Council Conclusions on Zimbabwe adopted on 29 April 2008 and on 26-27 May 2008,
( 1 ) Texts adopted, P6_TA(2008)0184. ( 2 ) OJ L 43, 19.2.2008, p. 39. ( 3 ) OJ L 50, 20.2.2004, p. 66. 3.12.2009 EN Official Journal of the European Union C 294 E/65
Thursday 10 July 2008
— having regard to the resolution on the [then] forthcoming election run-off in Zimbabwe, adopted by the African Commission on Human and Peoples' Rights (the African Commission) meeting at its 43rd Ordinary Session in Ezulwini, Kingdom of Swaziland, from 7 to 22 May 2008,
— having regard to the report of the Pan-African Parliament Election Observer Mission on the harmonised elections in the Republic of Zimbabwe on 29 March 2008,
— having regard to the Presidency Conclusions of the European Council of 19-20 June 2008, which reiterated the readiness of the EU to adopt additional measures against those responsible for the violence,
— having regard to the preliminary statement of the Southern African Development Community (SADC) Election Observer Mission on the Zimbabwe presidential run-off and House of Assembly by-elections of 29 June 2008,
— having regard to the interim statement of the Pan-African Parliament Election Observer Mission to the presidential run-off and parliamentary by-elections in Zimbabwe of 30 June 2008,
— having regard to the preliminary statement of the African Union (AU) Observer Mission to Zimbabwe of 29 June 2008,
— having regard to the resolution on Zimbabwe adopted by the AU Assembly at the 11th AU Summit, held in Sharm el-Sheikh, Egypt, on 30 June-1 July 2008,
— having regard to Rule 103(2) of its Rules of Procedure,
A. whereas the Zimbabwean presidential run off took place on 27 June 2008 despite the withdrawal of the presidential candidate Morgan Tsvangirai due to increasing violence and restrictions on the opposition party and supporters,
B. whereas monitors from the SADC, the Pan-African Parliament and the AU said the run-off vote was undermined by violence, fell short of AU and SADC standards and did not reflect the will of the people,
C. whereas elections to the House of Assembly of Zimbabwe, the Senate of Zimbabwe, the Presidency and the organs of local government took place on 29 March 2008,
D. whereas, according to official results released by the Zimbabwe Electoral Commission, the opposition party Movement for Democratic Change (MDC) won a majority of seats in the House of Assembly, while Morgan Tsvangirai won 47,9 % and Robert Mugabe won 43,2 % of the votes in the presidential election,
E. whereas the results of the presidential election were delayed for several weeks, thus undermining the credibility and transparency of the electoral process,
F. whereas Robert Mugabe declared before the run-off election that the MDC would never rule Zimbabwe and that he was prepared to fight to prevent them from taking power,
G. whereas, in the run-up to the second round of the presidential election, activists and supporters of the opposition suffered from state-sponsored violence, torture, intimidation and arbitrary arrests, and according to the MDC at least 86 of its supporters were killed and 200 000 displaced from their homes,
H. whereas, during the election campaign, Morgan Tsvangirai was arrested several times, pursued by armed soldiers and forced to take refuge in the Dutch Embassy in Harare, C 294 E/66 EN Official Journal of the European Union 3.12.2009
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I. whereas MDC Secretary-General Tendai Biti was arrested on 12 June 2008 and charged with subversion and treason,
J. whereas the state media banned MDC campaign adverts, thus impeding a free and fair electoral campaign; whereas the MDC rally planned for 22 June 2008 in Harare was obstructed by violent supporters of the Zimbabwe African National Union — Patriotic Front (ZANU-PF),
K. whereas on 24 June 2008 the President of the African National Congress, Jacob Zuma, described the situation in Zimbabwe as ‘out of control’, calling for urgent intervention by the United Nations and the SADC,
L. whereas the UN Security Council (UNSC) has at last unanimously condemned the campaign of violence being waged by the Zimbabwean Government, though falling short of declaring this election illegitimate, owing to South Africa's objection,
M. whereas the AU did not agree on any guidelines or a clear timetable for starting and ending negotiations and whereas, in addition, divisions within the SADC make dialogue unlikely,
N. whereas journalists have been harassed and intimidated and foreign journalists barred from entering the country,
O. whereas police have arbitrarily arrested civil society activists, including members of church-based civic groups in Harare, and a number of NGOs and aid agencies have had to suspend their operations,
P. whereas the ‘silent diplomacy’ of the President of South Africa, Thabo Mbeki, over the years, has, unfortunately, not produced any tangible results as regards the political situation in Zimbabwe and his notable sympathies for Robert Mugabe eventually led to a refusal by the Zimbabwe opposition to accept him as a mediator,
Q. whereas the crisis in Zimbabwe is producing spill-over effects into neighbouring countries, notably South Africa,
R. whereas, according to a report of the Food and Agriculture Organisation and the World Food Programme, an estimated two million face hunger between July 2008 and September 2008 in Zimbabwe, and this figure is expected to rise to 5,1 million in January-March 2009,
S. whereas one in ten children in Zimbabwe die before their fifth birthday and average life expectancy is 37 years for men, and 34 years for women,
1. Stresses that the elections of 27 June 2008 cannot be regarded as legitimate, and welcomes the Council Presidency's statement of 28 June 2008 clearly stating this position;
2. Strongly condemns the government-sponsored campaign of violence against the political opposition ahead of the second round of the presidential election, which resulted in the killing, arbitrary arrest and harassment of opposition activists and supporters as well as human rights defenders;
3. Considers that the campaign of violence, threats and intimidation against the opposition made a free and fair run-off presidential election in Zimbabwe impossible, as widely acknowledged by the international community, including the African election observers and African leaders;
4. Welcomes the UNSC presidential statement condemning the conduct of Zimbabwe's presidential election; 3.12.2009 EN Official Journal of the European Union C 294 E/67
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5. Welcomes the G8 leaders' statement on Zimbabwe of 8 July 2008, in particular their refusal to accept the legitimacy of any government that does not reflect the will of the Zimbabwean people, their recom mendation to appoint a Special Envoy of the UN Secretary-General to report on the political, humanitarian, human rights and security situation and to support regional efforts to take forward mediation between political parties while respecting the results of the election on 29 March 2008, and their intention to take further steps, inter alia introducing financial and other measures against those individuals responsible for violence;
6. Calls on all African countries and the wider international community to refuse to recognise the Mugabe regime;
7. Calls on the AU, the SADC and the UN to facilitate an inclusive mediation process with clear timeframes for negotiations, enabling a rapid and positive solution to the Zimbabwe crisis, based on free and fair elections;
8. Stresses that for the mediation effort to lead to meaningful and productive national dialogue, other external actors alongside President Thabo Mbeki must be brought in, and internal dialogue should not be restricted to the two political parties, but rather include other civil society actors such as NGOs, churches, trade unions and the parliament;
9. Calls for a negotiated settlement of the current crisis, leading to the creation of a transitional adminis tration, with a mandate to end the state-sponsored violence, demobilise militias, repeal repressive legislation, resolve the humanitarian crisis, stabilise the economy, initiate an inclusive constitutional review process, and reconstitute the Zimbabwe Electoral Commission (ZEC) in order to create conditions for free and fair presidential elections in the near future under the auspices of the AU and the UN; calls for such negotiations to be observed by an AU/UN envoy;
10. Calls on the UN to put in place a full and independent investigation of the human rights violations which were committed and insists that those responsible must not enjoy impunity and must be brought before a competent and impartial tribunal;
11. Underlines the need for the rehabilitation of the victims and calls for transitional justice measures, including the setting-up of a truth and reconciliation commission;
12. Welcomes the position of many African countries, as well as a large group of highly respected African personalities, including Nelson Mandela, Desmond Tutu and Kofi Annan, condemning the situation in Zimbabwe, and encourages them to engage concretely in a political and democratic solution;
13. Supports Botswana in its calls for Zimbabwe to be suspended from African forums until free and fair elections are held;
14. Calls for South Africa to assume a key role in the SADC region for the future of Zimbabwe, and deeply regrets South Africa's refusal in the UNSC to declare this election illegitimate;
15. Calls on the international community to increase diplomatic pressure on the Mugabe regime to stop all violence immediately, and to allow the Parliament which was duly elected 3 months ago to convene;
16. Calls on the Council to tighten and extend targeted sanctions against members of the Mugabe regime and others responsible for grave violations of human rights, if mediation efforts are not accepted and the state-sponsored violence is not ended, and to press for sanctions to be adopted at UN level, including an arms embargo and a comprehensive freeze of assets of the entire government and ruling party leadership; underlines the need to implement them strictly and to coordinate with the wider international community in order to ensure their effectiveness, and to prevent evasions; C 294 E/68 EN Official Journal of the European Union 3.12.2009
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17. Insists that such coercive measures should name and shame those business people responsible for financing the repressive ZANU-PF regime, including rescinding their rights of residence in Europe, and denying their family members access to employment and educational institutions, as well as exposing to shareholders the international banks which act as conduits for corrupt earnings, or provide loans and investment such as Barclays Bank, Standard Chartered and others; encourages other European and inter national companies to review any activities that allow the regime access to hard currency and, in this context, welcomes Tesco's and Giesecke & Devrient's decision to end business relations with Zimbabwe;
18. Calls, consequently, on the Member States not to grant any visa to Robert Mugabe, his cabinet and the ZANU PF leadership for any national or international purpose on EU territory, as they, representing an illegitimate de facto regime, cannot claim any privileges under relevant international conventions on diplomatic freedoms and privileges;
19. Calls on Member States, the Council and the Commission to step up the diplomatic engagement with African governments, the SADC and the AU, as well as with other important actors, including the Chinese Government, in order to identify common positions on the crisis in Zimbabwe;
20. Calls on China and Libya to cease their support for the Mugabe regime;
21. Calls on the Council and the Commission to engage specifically with South Africa, as the key country of the region, in order to express deep concern at the failure to produce any tangible mediation results over the last years with regard to the crisis in Zimbabwe, to point out that the impact of this crisis on neighbouring countries, including South Africa, should not be disregarded in the region and to clarify that continued political and economic support for the Mugabe regime might have negative effects on relations between the EU and South Africa;
22. Calls on the Council to push for effective and tangible international conflict-prevention and miti gation measures, if necessary with the rapid deployment of AU/UN peacekeeping troops;
23. Urges the immediate release of all persons detained for solely political reasons;
24. Notes the devastating impact that the political crisis is having upon the people of Zimbabwe, and calls on the Mugabe Government to lift all restrictions against humanitarian aid agencies and to ensure that humanitarian aid can be delivered in accordance with the principles of humanity, neutrality, impartiality and independence;
25. Calls on the Zimbabwe Government to immediately disarm and demobilise youth militias and war veterans and prosecute cases against individuals who have committed human rights violations;
26. Condemns the fact that a UN human rights official was expelled from Zimbabwe one week before the scheduled elections, and calls on the government to grant unhindered access to UN staff;
27. Calls on the South African authorities and the Member States not to deport Zimbabwean refugees and to grant them a temporary status until a safe return is possible;
28. Calls on the Commission to step up support for human rights defenders and react swiftly to additional humanitarian needs caused by the political crisis, in particular with regard to the needs and safety of internally displaced people;
29. Expresses its concern about the 10 % to 40 % predicted increase in numbers of Zimbabweans crossing borders in the next few weeks; notes that, among these migrants, children will be in a particularly vulnerable situation, at risk of abuse and forced to take up dangerous jobs such as mining, handling farm machinery or sex work in order to survive;
30. Calls on the EU to halt any aid that is distributed through the current Zimbabwean authorities and to channel it through national and international independent institutions and organisations instead; 3.12.2009 EN Official Journal of the European Union C 294 E/69
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31. Welcomes Commissioner Michel's commitment to increase significantly support for Zimbabwe and its people by pledging EUR 250 million in development aid, once democracy returns and a legitimate and credible government is elected;
32. Insists that the democratic wishes of the Zimbabwean people be respected; urges all those who wish to participate in the future of Zimbabwe to cooperate with the forces of democratic change;
33. Calls on the Zimbabwean Government to honour its own commitments to democratic principles, human rights and the rule of law as a signatory to the SADC Treaty and the Protocols thereto, including the SADC electoral protocol, the Constitutive Act of the African Union, the African Charter on Human and Peoples' Rights and the New Partnership for Africa's Development;
34. Calls on those of goodwill in the structures of the regime and in ZANU-PF to reject the anti- democratic forces and to take action to cooperate with the MDC in bringing about rapid change before it is too late;
35. Instructs its President to forward this resolution to the Council, the Commission, the governments and parliaments of the Member States, the governments of the G8 countries, the governments and parliaments of Zimbabwe and South Africa, the Secretary-General of the Commonwealth, the Secretary- General of the United Nations, the Chairmen of the Commission and Executive Council of the African Union, the Pan-African Parliament, and the Secretary-General and governments of the Southern African Development Community and its Parliamentary Forum.
Space and security P6_TA(2008)0365 European Parliament resolution of 10 July 2008 on Space and security (2008/2030(INI)) (2009/C 294 E/16)
The European Parliament,
— having regard to the European Security Strategy entitled ‘A secure Europe in a better world’, adopted by the European Council on 12 December 2003,
— having regard to the EU Strategy against proliferation of Weapons of Mass Destruction, likewise adopted by the European Council on 12 December 2003,
— having regard to Council resolution of 21 May 2007 on the European Space Policy ( 1 ),
— having regard to the Treaty on the Functioning of the European Union (TFEU) and the Treaty on European Union (TEU), as amended by the Treaty of Lisbon, and their relevant provisions on European space policy (Article 189 of the TFEU), permanent structured cooperation on security and defence matters (Articles 42(6) and 46 of the TEU and Protocol 10) and enhanced cooperation in the civilian area (Part Six, Title III of the TFEU), as well as the solidarity clause (Article 222 of the TFEU) and mutual assistance provisions in the event of armed aggression against a Member State or States (Article 42(7) of the TEU),
— having regard to its resolution of 29 January 2004 on the action plan for implementing the European space policy ( 2 ),
( 1 ) OJ C 136, 20.6.2007, p. 1. ( 2 ) OJ C 96 E, 21.4.2004, p. 136. C 294 E/70 EN Official Journal of the European Union 3.12.2009
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— having regard to its resolution of 14 April 2005 on the European Security Strategy ( 1 ),
— having regard to the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (‘the Outer Space Treaty’),
— having regard to the EU-Russia cooperation on space policy, which in 2006 created the Tripartite Space Dialogue between the European Commission, the European Space Agency (ESA) and Roscosmos (the Russian Federal Space Agency),
— having regard to Rule 45 of its Rules of Procedure,
— having regard to the report of the Committee on Foreign Affairs and the opinion of the Committee on Industry, Research and Energy (A6-0250/2008),
A. whereas freedom from space-based threats and secure sustainable access to, and use of, space must be the guiding principles of the European Space Policy,
B. whereas the various political and security challenges which the European Union is increasingly facing make an autonomous European Space Policy a strategic necessity,
C. whereas the lack of a common approach to space policy between EU Member States results in overly costly programmes,
D. whereas the crisis management operations within the framework of the European Security and Defence Policy (ESDP) suffer from a lack of interoperability between space assets operated by EU Member States,
E. whereas the European Union is lacking a comprehensive European space-based architecture for security and defence purposes,
F. whereas the development of a new generation of launchers takes approximately 15 years and the present generation of launchers will need replacing in the next 20 years,
G. whereas development of space assets by the USA, Russia, Japan and other emerging space-faring states, most notably China, India, South Korea, Taiwan, Brazil, Israel, Iran, Malaysia, Pakistan, South Africa and Turkey, is rapidly advancing,
H. whereas the French Presidency of the European Union during the second semester of 2008 sets out an advancement of the European Space Policy as one of its priorities,
I. whereas one of the most cost-effective elements of a space architecture and of achieving a sustainable fleet of space assets is on-orbit servicing, using in-situ means,
General considerations 1. Notes the importance of the space dimension to the security of the European Union and the need for a common approach necessary for defending European interests in space;
2. Underlines the need for space assets in order that the political and diplomatic activities of the European Union may be based on independent, reliable and complete information in support of its policies for conflict prevention, crisis management operations and global security, especially the monitoring of proliferation of weapons of mass destruction and their means of transportation and verification of international treaties, the transnational smuggling of light weapons and small arms, the protection of critical infrastructure and of the European Union's borders, and civil protection in the event of natural and man-made disasters and crises;
( 1 ) OJ C 33 E, 9.2.2006, p. 580. 3.12.2009 EN Official Journal of the European Union C 294 E/71
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3. Welcomes the endorsement of the European Space Policy by the ‘Space Council’ as proposed by a joint communication presented by the Commission and the European Space Agency (COM(2007)0212), especially the chapter on security and defence, while regretting the absence of any reference to the threat of weaponisation of space within the ‘key issues to be considered in the development of a strategy for international relations’ (as mentioned in Annex 3 to the abovementioned Council Resolution of 21 May 2007); recommends, therefore, that the revised European Security Strategy should take this policy appro priately into account, and is of the view that space matters should be reflected in the possible White Paper on Security and Defence Policy;
4. Notes the inclusion of a legal basis for the European Space Policy in the Treaty of Lisbon; welcomes the opportunity given to it and to the Council to lay down, under the ordinary legislative procedure, the measures needed to shape a European Space Programme; calls on the Commission to submit to it and to the Council an appropriate proposal for such measures, together with a Communication relating to the establishment of appropriate relations with the European Space Agency; also welcomes the possibilities of permanent structured cooperation in security and defence matters and enhanced cooperation in the civilian area;
5. Encourages the Member States of the European Union, the European Space Agency and the various stakeholders to make greater and better use of the existing national and multinational space systems and to foster their complementarity; notes in this respect that common capabilities are needed for ESDP in at least the following areas: telecommunications, information management, observation and navigation; recommends the sharing and exchange of these data in line with the EU concept for Network Centric Operations Architecture;
6. Applauds the efforts of the International Academy of Astronautics and the International Association for the Advancement of Space Safety to promote remediation, understanding and measures in respect of space debris;
Autonomous threat assessment 7. Calls on the EU Member States to pool and exchange the geospatial intelligence necessary for autonomous EU threat assessment;
Earth observation and reconnaissance 8. Urges that the European Union Satellite Centre (EUSC) be fully developed to make full use of its potential; moreover, recommends the urgent conclusion of agreements between the European Union Satellite Centre and the EU Member States to provide imagery available to ESDP operation and force commanders while ensuring complementarity with Global Monitoring for Environment and Security (GMES) observation capacities and derived security-related information; in this regard, welcomes the Tactical Imagery Exploitation Station project, run jointly by the European Defence Agency (EDA) and the European Union Satellite Centre;
9. Recommends that the EU develop a common concept for geospatial intelligence, creating conditions for involvement of the EUSC in the planning for each ESDP operation requiring space-based observation and space-based intelligence; recommends that the EUSC establish a secure communication link in support of ESDP operations not only with the Operations Headquarters (OHQ) based in the EU but also with the Force Headquarters (FHQ) in the deployment region; furthermore, suggests that the EU explore the possi bility of a financial contribution to the EUSC from the EU budget in order to provide sufficient funds to meet the increasing needs of ESDP operations;
10. Urges the EU Member States having access to the various types of radar, optical and weather observation satellites and reconnaissance systems (Helios, SAR-Lupe, TerraSAR-X, Rapid Eye, Cosmo- Skymed, Pleiades) to make them compatible; welcomes the bilateral and multilateral agreements between the leading EU countries (e.g. SPOT, ORFEO, the Helios cooperative framework, the Schwerin agreement and the future MUSIS); recommends that the MUSIS system be brought within a European framework and financed from the EU budget; C 294 E/72 EN Official Journal of the European Union 3.12.2009
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11. Emphasises the importance of GMES for foreign as well as security and defence policies of the European Union; urges the creation of an operational budget line to ensure the sustainability of GMES services in response to users' needs;
Navigation — positioning — timing 12. Underlines the necessity of Galileo for autonomous ESDP operations, for the Common Foreign and Security Policy, for Europe's own security and for the Union's strategic autonomy; notes that, in particular, its public-regulated service will be vital in the field of navigation, positioning and timing, not least in order to avoid unnecessary risks;
13. Notes the first-reading agreement between Parliament and the Council on the proposal for a regu lation on the further implementation of the European satellite radionavigation programmes (EGNOS and Galileo), which establishes that the Community is the owner of the system and that its deployment phase is fully financed by the Community budget;
14. Draws attention to its position adopted on 23 April 2008 on the European satellite radionavigation programmes (EGNOS and Galileo) ( 1), in particular, to the fact that the EGNOS and Galileo programmes should be considered as one of the major pillars of the future European Space Programme, and to the governance of these programmes, together with the Galileo Interinstitutional Panel, which may serve as a model in the development of a European Space Policy;
Telecommunications 15. Underlines the need for secure satellite-supported communication for ESDP operations (EU Military Staff, EU Headquarters, deployable headquarters) and EU Member States' deployments under UN, NATO and other similar organisations;
16. Requests that the current and future satellite telecommunication systems at the disposal of the EU Member States (e.g. Skynet, Syracuse, Sicral, SATCOM Bw, Spainsat) be interoperable in order to provide for cost reduction;
17. Supports the cooperative development of a Software-Defined Radio (SDR) by the Commission and the European Defence Agency; notes that SDR will contribute to better interoperability of the ground segment of telecommunications systems;
18. Recommends that savings be achieved by shared use of the ground infrastructure supporting different national telecommunications systems;
19. Supports the possibility of funding future European satellite telecommunications systems supporting ESDP operations from the EU budget;
Space surveillance 20. Supports the creation of a European space surveillance system leading to space situational awareness (including, for example, GRAVES and TIRA) to monitor the space infrastructure, space debris and, possibly, other threats;
21. Supports the possibility of funding the future European space situational awareness system from the EU budget;
( 1 ) Texts adopted, P6_TA(2008)0167. 3.12.2009 EN Official Journal of the European Union C 294 E/73
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Satellite-based early warning against ballistic missiles 22. Deplores the fact that EU Member States do not have access to instant data on ballistic missile launches around the world; expresses support, therefore, for projects leading towards satellite-based early warning against ballistic missile launches (such as the French ‘Spirale’); furthermore, calls for information acquired through these future systems to be available to all EU Member States in order to protect their population and to support possible countermeasures, as well as to serve in the verification of compliance with the Nuclear Non-Proliferation Treaty, and for the purposes of ESDP operations and safeguarding Europe's security interests;
Signal intelligence 23. Supports the exchange of signal intelligence (electronic intelligence such as the French ‘Essaim’ and communications intelligence) at European level;
Autonomous access to space and international environment 24. Supports secure, independent and sustainable access to space for the European Union as one of the preconditions of its autonomous action;
25. Recommends that the European non-commercial satellites be carried into orbit by European launchers, preferably from the territory of the European Union, bearing in mind the aspects of security of supply and protection of the European Defence Technological and Industrial Base;
26. Points out that it is necessary to increase the development effort in order for an enhanced Ariane 5 to be available before 2015;
27. Recommends that strategic long-term investment in new European launchers be initiated as soon as possible, in order to keep up with the rising global competition; demands a greater degree of discipline for this project, in budgetary and time-frame terms;
28. Recommends that on-orbit servicing be established as a means of support to enhance the endurance, persistence, availability and operational efficiency of operational space assets and, at the same time, to reduce asset deployment and maintenance costs;
Governance 29. Encourages strong inter-pillar cooperation for space and security, involving all the relevant actors (i.e. the Commission, the Council, the European Defence Agency and the European Union Satellite Centre), in order to safeguard the security policy and data security linked with the ESDP;
30. Strongly recommends the promotion of equal access for all EU Member States to operational data gathered using space assets under a reinforced ESDP framework;
31. Recommends that administrative and financial capacities for the management of space-related activities be developed by the European Defence Agency;
Financing 32. Points out that the EU budget commits expenditure amounting to approximately EUR 5 250 million in the years 2007-2013 on common European space activities, resulting in an average expenditure of EUR 750 million per year over that period;
33. Calls on the European Union to set up an operational budget for space assets that serve to support the ESDP and European security interests; C 294 E/74 EN Official Journal of the European Union 3.12.2009
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34. Is alarmed by the fact that the lack of coordination among Member States results in a scarcity of resources due to unnecessary duplication of activities; therefore supports the idea of the launching of joint programmes by the Member States, which will provide costs savings in the longer term;
35. Furthermore, notes that the cost of the absence of a common European approach to the procurement, maintenance and functioning of space assets is estimated to amount to hundreds of millions of euros;
36. Points out that, as experience has shown, large-scale common projects cannot be properly managed when 27 different national budget authorities applying the principle of ‘fair return’ are involved; therefore strongly recommends that these projects and programmes be financed from the EU budget;
37. Notes that the estimates of available expertise suggest that the level of investment needed to address the European security and defence needs in terms of satellite telecommunications, and the appropriate expenditure of the European Union on Earth observation and intelligence gathering, including signal intelligence, should be substantially increased in order to provide for the needs and ambitions of a compre hensive space policy;
38. Takes the view that the European Union, the European Space Agency, the European Defence Agency and their Member States should provide for reliable and adequate funding for the space activities envisaged and the research connected therewith; attaches great importance to the financing from the budget of the EU, such as on the Galileo project;
Protection of space infrastructure 39. Underscores the vulnerability of strategic space assets as well as the infrastructure allowing access to space, e.g. launchers and space ports; therefore stresses the need for them to be adequately protected by ground-based theatre missile defence, planes and space surveillance systems; furthermore supports the sharing of data with international partners in the event that satellites are rendered inoperable by enemy action;
40. Calls for the vulnerability of future European satellite systems to be reduced through anti-jamming, shielding, on-orbit servicing, high-orbit and multi-orbital constellation architectures;
41. Emphasises that the protective measures must be fully compliant with international standards regarding peaceful uses of outer space and commonly agreed transparency and confidence-building measures (TCBMs); asks EU Member States to explore the possibility of developing legally or politically binding ‘rules of the road’ for space operators, together with a space traffic management regime;
42. Stresses that, as a result of this vulnerability, advanced communication should never be made fully dependent on space-based technologies;
International legal regime for uses of space 43. Reiterates the importance of the principle of the use of space for peaceful purposes expressed in the abovementioned 1967 Outer Space Treaty; is therefore concerned by the possible future weaponisation of space;
44. Urges that under no circumstances should European space policy contribute to the overall militar isation and weaponisation of space;
45. Calls for the international legal regime to be strengthened so as to regulate and protect non- aggressive space uses and for the strengthening of TCBMs, within the framework of the drafting by the UN Committee on the Peaceful Uses of Outer Space (COPUOS) of space debris mitigation guidelines consistent with those of the Inter-Agency Debris Coordination Committee as well as the development by the UN Conference on Disarmament of a multilateral agreement on the prevention of an Arms Race in Outer Space; furthermore, asks the EU Presidency to represent the EU proactively in COPUOS; calls on the EU institutions to promote a conference to review the Outer Space Treaty, with the aim of strengthening it and expanding its scope to prohibit all weapons in space; 3.12.2009 EN Official Journal of the European Union C 294 E/75
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46. Calls on all international actors to refrain from using offensive equipment in space; expresses its particular concern about the use of destructive force against satellites, such as the Chinese anti-satellite system tested in January 2007, and the consequences of the massive increase in debris for space security; recommends, therefore, the adoption of legally binding international instruments focusing on banning the use of weapons against space assets and the stationing of weapons in space;
47. Calls on all space users to register their satellites, including military satellites, by way of a space security confidence-building measure promoting transparency; supports the Council's pursuit of a compre hensive EU Code of Conduct on Space Objects; demands that this Code be transformed into a legally binding instrument;
48. Urges the United Nations and the European Union to engage in the active diminution of, and protection from, space debris harmful to satellites;
Transatlantic cooperation on space policy and missile defence 49. Urges the European Union and the North Atlantic Treaty Organization to launch a strategic dialogue on space policy and missile defence, while bearing in mind the legal imperative of avoiding any action that might be incompatible with the principle of the peaceful use of space, especially on the complementarity and interoperability of systems for satellite communications, space surveillance, and early warning of ballistic missiles, as well as protection of European forces by a theatre missile defence system;
50. Calls on the European Union and the United States of America to engage in a strategic dialogue on the use of space assets and to take the global lead within and outside the UN to make sure that outer space is preserved for peaceful policies only;
Other international cooperation 51. Welcomes the strengthened cooperation between the European Union and the Russian Federation within the framework of the abovementioned Tripartite Space Dialogue set up in 2006 between the European Commission, the European Space Agency and Roscosmos, including space applications (satellite navigation, Earth observation and satellite communications) as well as access to space (launchers and future space transportation systems);
* * *
52. Instructs its President to forward this resolution to the Council, the Commission, the European Space Agency, the parliaments of the Member States and the Secretaries-General of the United Nations, the North Atlantic Treaty Organisation and the Organisation for Security and Cooperation in Europe.
Kashmir P6_TA(2008)0366 European Parliament resolution of 2008 July 10 on allegations of mass graves in Indian- administeredKashmir (2009/C 294 E/17)
The European Parliament,
— having regard to the reports of its ad hoc delegation visits to Kashmir from 8 to 11 December 2003 and from 20 to 24 June 2004,
— having regard to its resolution of 18 May 2006 on the Annual Report on Human Rights in the World 2005 and the EU's policy on the matter ( 1),
( 1 ) OJ C 297 E, 7.12.2006, p. 341. C 294 E/76 EN Official Journal of the European Union 3.12.2009
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— having regard to its resolution of 24 May 2007 regarding the present situation and future prospects of Kashmir ( 1 ),
— having regard to Rule 115(5) of its Rules of Procedure,
A. whereas it is reported that hundreds of unidentified graves have been discovered since 2006 in Jammu and Kashmir and whereas at least 940 bodies have reportedly been found in 18 villages in the Uri district alone,
B. whereas the Srinagar-based Association of the Parents of Disappeared Persons (APDP) issued a report on 29 March 2008 indicating the existence of multiple graves in localities which, because of their proximity to the Line of Control with Pakistan, are not accessible without the specific permission of the security forces,
C. whereas, according to human rights organisations, it cannot be excluded that the grave sites contain the remains of victims of unlawful killings, enforced disappearances, torture and other abuses which have occurred in the context of armed conflict persisting in Jammu and Kashmir since 1989,
D. whereas estimates of the number of persons having gone missing since 1989 vary greatly, with associations of families of victims speaking of more than 8 000 and government authorities claiming fewer than 4 000,
E. whereas a state police report of 2006 confirmed the deaths in custody of 331 persons and 111 enforced disappearances following detention since 1989,
F. whereas allegations of human rights violations continue despite the Government of India's commitment in September 2005 not to tolerate human rights violations in Jammu and Kashmir any longer,
G. whereas Parvez Imroz, an award-winning human rights lawyer, president of the Jammu and Kashmir Coalition of Civil Society and founder of the APDP, survived an armed attack on 30 June 2008 in Srinagar by alleged security forces members, and whereas other members of the International Tribunal on Human Rights and Justice in Kashmir, which is being facilitated by the APDP, have reportedly been harassed,
1. Calls on the Government of India urgently to ensure independent and impartial investigations are undertaken into all suspected sites of mass graves in Jammu and Kashmir and, as an immediate first step, to secure the grave sites in order to preserve the evidence;
2. Calls on the Commission to offer financial and technical assistance to the Indian Government in the context of the Stability Instrument for such thorough investigations and possible further conflict resolution measures in Kashmir;
3. Calls on the Member States to address the issue in the forthcoming dialogue on human rights, which is to take place in the second half of 2008;
4. Expresses its concern for the safety of Parvez Imroz and other human rights activists who are investigating the unmarked graves and other allegations of human rights abuses in Jammu and Kashmir, and calls on the Indian authorities to ensure their protection and allow them to operate without fear of harassment and violence; urges the authorities to conduct a prompt and impartial investigation into the attack on Parvez Imroz, to make the results public and to bring those responsible to justice;
5. Reiterates its call on the Indian Government and the state authorities to investigate all allegations of enforced disappearances; urges jurisdiction for all cases in which military, security or law-enforcement agents are suspected of being involved to be assigned to a civilian prosecutor's office, and a single public database of all persons who have gone missing and all bodies that have been recovered to be created; calls on Member States to facilitate and support all possible cooperation between the Indian and Pakistani Governments in relation to this investigation;
( 1 ) OJ C 102 E, 24.4.2008, p. 468. 3.12.2009 EN Official Journal of the European Union C 294 E/77
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6. Calls on the state authorities to ensure that all detention procedures meet the minimum requirements of international legal standards, proper treatment, registration and prosecution, prompt access to family members, to lawyers and to independent courts, as well as accountability for any violation of such procedures;
7. Strongly condemns the unlawful killings, enforced disappearances, torture, rape and other human rights abuses which have occurred in Jammu and Kashmir since the beginning of the armed conflict in 1989; insists that the families of the victims be granted full reparation;
8. Calls on all governments to ratify the Rome Statute of the International Criminal Court, to ratify and implement without reservation the UN Convention for the Protection of All Persons from Enforced Disap pearance, and, pursuant to Articles 31 and 32 of that Convention, to declare that they recognise the competence of the Committee on Enforced Disappearances;
9. Calls for full access to be granted to both sides of the Line of Control for the UN Special Rapporteurs under the terms of reference of the UN Special Procedures, notably the Special Rapporteurs on Torture and on Extrajudicial, Summary or Arbitrary Executions and the UN Working Group on Enforced or Involuntary Disappearances;
10. Calls again on the Lok Sabha to amend the Human Rights Protection Act in order to allow the National Human Rights Commission to investigate independently allegations of abuse by members of the armed forces;
11. Instructs its President to forward this resolution to the Council, the Commission, the government and parliament of India, the government and parliament of the Islamic Republic of Pakistan, the government and parliament of the State of Jammu and Kashmir and the UN Secretary-General.
Bangladesh P6_TA(2008)0367 European Parliament resolution of 10 July 2008 on Bangladesh (2009/C 294 E/18)
The European Parliament,
— having regard to its previous resolutions, on Bangladesh, in particular those of 16 November 2006 ( 1 ) and 6 September 2007 ( 2 ),
— having regard to the Cooperation Agreement between the European Community and the People's Republic of Bangladesh on Partnership and Development ( 3 ),
— having regard to the state of emergency which was decreed by the caretaker government of Bangladesh on 11 January 2007,
— having regard to Rule 115(5) of its Rules of Procedure,
A. whereas the EU has good, long-standing relations with Bangladesh, including through the Cooperation Agreement on Partnership and Development,
( 1 ) OJ C 314 E, 21.12.2006, p. 377. ( 2 ) Texts adopted, P6_TA(2007)0385. ( 3 ) OJ L 118, 27.4.2001, p. 48. C 294 E/78 EN Official Journal of the European Union 3.12.2009
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B. whereas on 11 January 2007, amid violence in the run-up to the election, the caretaker government of Bangladesh imposed a state of emergency and shortly afterwards adopted Emergency Power Rules giving the army and the paramilitary forces the same arrest powers as the police; whereas the EU Election Observation Mission then suspended its operations on 22 January 2007,
C. whereas the imposition of the Emergency Power Rules was accompanied by the suspension of a series of civil rights guaranteed by the constitution of Bangladesh,
D. whereas the suspension of those rights has led to an alarming number of recent rulings by the appellate division of the Supreme Court, with serious implications for individual rights and the principle of legality,
E. whereas on 11 June 2008 a new counterterrorism ordinance was adopted without public input, violating fundamental freedoms and basic fair trial rights and introducing a broad definition of ‘terrorist acts’, which now includes mere property crimes as well as attacks against individuals; whereas that definition is contrary to the recommendations of the United Nations; whereas human rights organisations and lawyers' associations have expressed concern that the ordinance will be employed for the purposes of political persecution,
F. whereas, according to international human rights organisations such as Human Rights Watch and Amnesty International, the number of people reportedly arrested since the introduction of the state of emergency 18 months ago has risen to well over 300 000, most of whom have subsequently been released; whereas, since the right to apply for release on bail is restricted under the Emergency Power Rules, the ongoing wave of mass arrests may put serious pressure on the prison system,
G. whereas a large number of those arrested have allegedly been severely tortured, and whereas increased incidences of extrajudicial killings have been reported by Odhikar, the Bangladesh national human rights organisation,
H. whereas it has consistently called for a moratorium on the death penalty in all countries and under all circumstances,
I. welcomes the recent relaxation of the ban on political activities, the agreement between the government and the Awami League to enter into negotiations on planned national elections in December and the fact that other parties are to engage in this process,
J. whereas in the course of the new wave of mass arrests since 28 May 2008 more than 12 000 people have been arrested, including local party activists; whereas the government has rejected suggestions that the arrests are politically motivated, claiming instead that they are part of a planned sweep against criminals,
K. whereas, citing the need for a comprehensive voters' list, the caretaker government has so far ignored appeals from political parties and civil society organisations to pave the way for the speedy holding of early national elections and is sticking to the absolute deadline which has been set for the third week of December 2008,
L. whereas the hardship faced by the general population of Bangladesh has been compounded by the increase in recent months, by a third or more, of the price of basic food items such as rice and whereas, for a large part of the population, food expenses already accounted for over 60 % of their budget before the price explosion,
M. whereas an elected government would the effects of climate change easier to tackle; whereas as much as a quarter of Bangladesh's territory faces the threat of being permanently submerged by rising levels of sea water in the Bay of Bengal; whereas climate scientists warn that Bangladesh may have 20 to 25 million climate refugees by 2050, 3.12.2009 EN Official Journal of the European Union C 294 E/79
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1. Calls on the Bangladeshi Government to lift the state of emergency as the most important step in preparing for the holding of the country's next parliamentary elections and so that local council elections can take place in August 2008;
2. Calls on the Bangladeshi Government to ensure that its new counterterrorism ordinance meets inter nationally recognised legal standards on combating terrorism, such as those recommended by the UN Special Rapporteur on Counterterrorism and Human Rights;
3. Calls on the Bangladeshi Government to abolish the death penalty;
4. Calls on the Bangladeshi Government immediately to put an end to the recent wave of mass arrests and the harassment of political opponents or journalists under the state of emergency and expresses concern at reports of torture by the authorities; calls on the government to guarantee to all detainees their basic right to due process and to those charged a fair trial; urges the authorities either to charge the thousands detained on the basis of credible evidence or to release them;
5. Applauds the Bangladeshi Government for banning former war criminals from standing in elections and calls on it to follow up this positive step by forming an independent committee of inquiry to initiate the trial of war criminals;
6. Congratulates the caretaker government on progress in preparing for parliamentary elections and on making essential progress with the reform of the electoral process and the drawing-up of an accurate electoral register by the authorities; calls on the government to ensure that members of Bangladesh's ethnic and religious minorities are in a position freely to cast their votes; calls for freedom of the press in the pre-electoral period in Bangladesh;
7. Welcomes the release of former Prime Minister Sheikh Hasina on humanitarian grounds;
8. Calls on the Council and the Commission to play a more proactive role and to impress on the Bangladesh Government the need for a speedy and complete lifting of the state of emergency and of all regulations adopted under its auspices;
9. Calls for free and fair elections conducted in accordance with international standards, with the participation of all parties; calls for the EU Election Observation Mission to resume its activities as soon as this is feasible and advisable; calls on EU Member State missions and the Commission Delegation in Bangladesh to monitor the human rights and political situation in Bangladesh carefully;
10. Calls for the armed forces to withdraw from involvement in the political process;
11. Calls on the Bangladesh Government to provide maximum scope for a large-scale mobilisation of all sections of society, environmental and other non-governmental organisations, journalists and scientists in order to prepare the country for the forthcoming climate change-induced disasters and considers emergency rule as an alarming obstacle to achieving this goal;
12. Believes that the G8 Summit has an enormous responsibility to avert further acceleration in climate change and an increase in the number of catastrophes that threaten the lives of millions of people in Bangladesh and elsewhere by adopting effective and far-reaching measures to curb CO2 emissions;
13. Instructs its President to forward this resolution to the Council, the Commission, the member states of the South Asian Association for Regional Cooperation and the Bangladeshi Government. C 294 E/80 EN Official Journal of the European Union 3.12.2009
Thursday 10 July 2008
Death penalty P6_TA(2008)0368 European Parliament resolution of 10 July 2008 on the death penalty, particularly the case of TroyDavis (2009/C 294 E/19)
The European Parliament,
— having regard to its previous resolutions on the abolition of the death penalty and the need for an immediate moratorium on executions in those countries where the death penalty is still imposed,
— having regard to UN General Assembly Resolution 62/149 of 18 December 2007 on the moratorium on the use of the death penalty in the world,
— having regard to the updated and revised version of the EU Guidelines on the Death Penalty, adopted by the Council on 16 June 2008,
A. having regard to the case of Troy Davis, sentenced to death by the Georgia State Court in 1991 for the murder of a policeman and scheduled to be executed at the end of July 2008,
B. whereas, according to Troy Davis' lawyers, there is abundant proof of his innocence, material evidence against him has never been produced and seven witnesses for the prosecution have retracted their testimony,
C. whereas on 4 August 2007 the Supreme Court of Georgia agreed to reconsider new elements casting doubt on Troy Davis' guilt,
D. whereas on 17 March 2008 the Supreme Court of Georgia denied Troy Davis a retrial, although the Chief Justice dissented,
E. whereas since 1975 more than 120 people have been released from death row in the United States, having been found innocent,
F. whereas in the United States the power of clemency in cases where a capital sentence has been imposed exists as a failsafe against irreversible errors that the courts are unable or unwilling to remedy,
G. whereas New Jersey is the first US State to have abolished capital punishment by legislation since the reintroduction of the death penalty in the United States in 1972, citing the inescapable risk of executing those wrongfully convicted,
1. Calls upon those countries where the death penalty is imposed to take the necessary steps towards its abolition;
2. Asks that Troy Davis' death sentence be commuted and, in view of the abundant evidence which might lead to such commutation, for the relevant courts to grant him a retrial;
3. Appeals urgently to the Georgia State Board of Pardons and Paroles to commute Troy Davis' death sentence;
4. Calls on the Presidency of the Council and the Delegation of the Commission to the United States to raise the issue as a matter of urgency with the US authorities;
5. Instructs its President to forward this resolution to the Council, the Commission, the Government of the United States, the Georgia State Board of Pardons and Paroles, and the Attorney General of Georgia. 3.12.2009 EN Official Journal of the European Union C 294 E/81
Tuesday 8 July 2008
II
(Information)
INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES
EUROPEAN PARLIAMENT
Request for waiver of the immunity of Witold Tomczak P6_TA(2008)0326 European Parliament decision of 8 July 2008 on the request for waiver of the immunity of Witold Tomczak (2008/2078(IMM)) (2009/C 294 E/20)
The European Parliament,
— having regard to the request by the Deputy Public Prosecutor of Warsaw for waiver of the immunity of Witold Tomczak in connection with the criminal proceedings conducted by the District Prosecutor's Office in Warsaw (Warszawa Śródmieście Północ), Poland, which was made on 14 December 2007, forwarded by the Polish Prosecutor General on 31 January 2008 and announced in plenary sitting on 10 March 2008,
— having heard Witold Tomczak on 28 May 2008 in accordance with Rule 7(3) of its Rules of Procedure,
— having regard to Articles 9 and 10 of the Protocol of 8 April 1965 on the Privileges and Immunities of the European Communities and Article 6(2) of the Act of 20 September 1976 concerning the election of the members of the European Parliament by direct universal suffrage,
— having regard to the judgments of 12 May 1964 and 10 July 1986 ( 1 ) of the Court of Justice of the European Communities,
— having regard to Article 105 of the Polish Constitution,
— having regard to Rules 6(2) and 7 of its Rules of Procedure,
— having regard to the report of the Committee on Legal Affairs (A6-0277/2008),
A. whereas Witold Tomczak was elected to the Sejm (the lower house of the Polish Parliament) on 21 September 1997 and on 23 September 2001; whereas after the signature of the Accession Treaty on 16 April 2003 he became an Observer; whereas he was a Member of the European Parliament from 1 May 2004 until 19 July 2004; whereas he was elected to the European Parliament on 13 June 2004 and his term of office in the Polish Parliament expired on 16 June 2004,
( 1 ) Case 101/63 Wagner v. Fohrmann and Krier [1964] ECR 195 and Case 149/85 Wybot v. Faure and Others [1986] ECR 2391. C 294 E/82 EN Official Journal of the European Union 3.12.2009
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B. whereas Witold Tomczak is charged with causing damage valued at up to 39 669 PLN (approximately 11 500 EUR) to a sculpture titled ‘The Ninth Hour’ — depicting Pope John Paul II crushed by a stone — in the Zachęta Gallery in Warsaw on 21 December 2000 in breach of Article 288(1) of the Polish Penal Code ( 1),
C. whereas the District Prosecutor's Office in Warsaw has collected evidence against Witold Tomczak, but the latter has refused to answer questions regarding the event at the Zachęta Gallery,
D. whereas Witold Tomczak claims that by his action towards the sculpture he sought to defend his and other people's religious feelings, as well as to protect the dignity of the Pope; whereas he contests the amount of the damage he allegedly caused and in any case considers that his behaviour was aimed at protecting a higher value — that of the Pope's honour in the eyes of Polish Catholics,
E. whereas, on the basis of the information obtained, Witold Tomczak is not protected by parliamentary immunity in respect of any of the allegations which have been drawn to the attention of the President of the European Parliament,
1. Decides to waive the immunity of Witold Tomczak;
2. Instructs its President to forward this decision, and the report of the committee responsible, immediately to the appropriate authority of the Republic of Poland.
( 1 ) The provisions of that Article being: ‘Whosoever destroys, damages or makes useless another person's property shall be sentenced to a term of prison ranging from three months to five years.’ (Polish original: ‘Kto cudzą rzecz niszczy, uszkadza lub czyni niezdatną do użytku, podlega karze pozbawienia wolności od 3 miesięcy do lat 5.’).
Approval of the Commission (amendment of the Rules of Procedure) P6_TA(2008)0328 European Parliament decision of 8 July 2008 on amendment of Parliament's Rules of Procedure with respect to the approval of the Commission (2007/2128(REG)) (2009/C 294 E/21)
The European Parliament,
— having regard to the letter from its President of 14 December 2006,
— having regard to its resolution of 1 December 2005 on guidelines for the approval of the Commission ( 1 ),
— having regard to Rules 201 and 202 of its Rules of Procedure,
— having regard to the report of the Committee on Constitutional Affairs (A6-0198/2008),
1. Decides to amend its Rules of Procedure as shown below;
2. Points out that the amendments will enter into force on the first day of the next part-session;
3. Instructs its President to forward this decision to the Council and the Commission, for information.
( 1 ) OJ C 285 E, 22.11.2006, p. 137. 3.12.2009 EN Official Journal of the European Union C 294 E/83
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PRESENT TEXT AMENDMENTS
Amendment 1 Parliament's Rules of Procedure Rule 99 — paragraph 2
2. The committee shall invite the nominee to make a 2. The committee shall invite the Commissioner-designate to statement and answer questions. make a statement and answer questions. The hearings shall be organised in such a way as to enable Commissioners-designate to disclose to Parliament all relevant information. Provisions relating to the organisation of the hearings shall be laid down in an annex to the Rules of Procedure ( 2). ______( 2 ) See Annex XVI b.
Amendment 2 Parliament's Rules of Procedure Rule 99 — paragraph 6
6. In the event of portfolio changes during the Commission's 6. In the event of a substantial portfolio change during the term of office, the Commissioners concerned shall be invited to Commission's term of office, the filling of a vacancy or the appear before the committees responsible for the areas of appointment of a new Commissioner following the accession responsibility in question. of a new Member State, the Commissioners concerned shall be invited to appear before the committees responsible for the areas of responsibility in question in accordance with paragraph 2.
Amendment 3 Parliament's Rules of Procedure Annex XVI b (new)
ANNEX XVI b
Guidelines for the approval of the Commission
1. The following principles, criteria and arrangements shall apply for making the entire college of the Commission subject to Parliament's vote of consent:
(a) Basis for assessment
Parliament shall evaluate Commissioners-designate on the basis of their general competence, European commitment and personal independence. It shall assess knowledge of their prospective portfolio and their communication skills.
Parliament shall have particular regard to gender balance. It may express itself on the allocation of portfolio respon sibilities by the President-elect.
Parliament may seek any information relevant to its reaching a decision on the aptitude of the Commis sioners-designate. It shall expect full disclosure of information relating to their financial interests. C 294 E/84 EN Official Journal of the European Union 3.12.2009
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(b) Hearings
Each Commissioner-designate shall be invited to appear before the appropriate committee or committees for a single hearing. The hearings shall be held in public.
The hearings shall be organised jointly by the Conference of Presidents and the Conference of Committee Chairs. Appropriate arrangements shall be made to associate relevant committees where portfolios are mixed. There are three options:
(i) if the portfolio of the Commissioner-designate falls within the remit of a single committee, the Commis sioner-designate shall be heard by that committee alone;
(ii) if the portfolio of the Commissioner-designate falls more or less equally within the remit of more than one committee, the Commissioner-designate shall be heard jointly by those committees; and
(iii) if the portfolio of the Commissioner-designate falls mainly within the remit of one committee and only to a small extent within the remit of at least one other committee, the Commissioner-designate shall be heard by the committee mainly responsible, which shall invite the other committee or committees to attend the hearing.
The President-elect of the Commission shall be fully consulted on the arrangements.
The committees shall submit written questions to the Commissioners-designate in good time before the hearings. The number of substantive written questions shall be limited to five per committee responsible.
Hearings shall take place in circumstances, and under conditions, whereby Commissioners-designate enjoy an equal and fair opportunity to present themselves and their opinions.
Commissioners-designate shall be invited to make an opening oral statement of no longer than twenty minutes. The conduct of the hearings shall aim to develop a pluralistic political dialogue between the Commissioners-designate and the Members. Before the end of the hearing, Commissioners-designate shall be given the opportunity to make a brief closing statement.
(c) Evaluation
An indexed video recording of the hearings shall be made available for the public record within twenty-four hours. 3.12.2009 EN Official Journal of the European Union C 294 E/85
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The committees shall meet without delay after the hearing to evaluate the individual Commissioners-designate. Those meetings shall be held in camera. The committees shall be invited to state whether, in their opinion, the Commis sioners-designate are qualified both to be members of the college and to carry out the particular duties they have been assigned. If the committee is unable to reach a consensus on both of those points, its chair shall, as a last resort, put the two decisions to the vote by secret ballot. The committees’ statements of evaluation shall be made public and presented at a joint meeting of the Conference of Presidents and the Conference of Committee Chairs, which shall be held in camera. Following an exchange of views, the Conference of Presidents and the Conference of Committee Chairs shall declare the hearings closed unless they decide to seek further information.
The President-elect of the Commission shall present the whole college of Commissioners-designate and their programme at a sitting of Parliament which the whole Council shall be invited to attend. The presentation shall be followed by a debate. In order to wind up the debate, any political group or at least forty Members may table a motion for resolution. Rule 103(3), (4) and (5) shall apply. Following the vote on the motion for resolution, Parliament shall vote on whether or not to give its consent to the appointment, as a body, of the President- elect and Commissioners-designate. Parliament shall decide by a majority of the votes cast, by roll call. It may defer the vote until the following sitting.
2. The following arrangements shall apply in the event of a change in the composition of the college of Commissioners or a substantial portfolio change during its term of office:
(a) When a vacancy caused by resignation, compulsory retirement or death is to be filled, Parliament, acting with dispatch, shall invite the Commissioner-designate to participate in a hearing under the same conditions as those laid down in paragraph 1.
(b) In the event of the accession of a new Member State, Parliament shall invite the Commissioner-designate to participate in a hearing under the same conditions as those laid down in paragraph 1.
(c) In the event of a substantial portfolio change, the Commissioners affected shall be invited to appear before the committees concerned before taking up their new responsibilities.
By way of derogation from the procedure laid down in paragraph 1(c), third subparagraph, when the vote in plenary concerns the appointment of a single Commissioner, the vote shall be by secret ballot. C 294 E/86 EN Official Journal of the European Union 3.12.2009
Tuesday 8 July 2008 The work of the Plenary and initiative reports (amendment of the Rules of Procedure) P6_TA(2008)0334 European Parliament decision of 8 July 2008 on amendment of Parliament's Rules of Procedure inlight of the proposals by the Working Party on Parliamentary Reform concerning the work of thePlenary and initiative reports (2007/2272(REG)) (2009/C 294 E/22)
The European Parliament,
— having regard to the decisions of the Conference of Presidents of 25 October and 12 December 2007,
— having regard to the letters from its President of 15 November 2007 and 31 January 2008,
— having regard to the First Interim Report of the Working Party on Parliamentary Reform concerning ‘The plenary and the calendar of activities’ submitted to the Conference of Presidents on 6 September 2007, and to its conclusions concerning initiative reports,
— having regard to Article 199 of the EC Treaty,
— having regard to Rules 201 and 202 of its Rules of Procedure,
— having regard to the report of the Committee on Constitutional Affairs (A6-0197/2008),
1. Decides to amend its Rules of Procedure as shown below;
2. Points out that the amendments will enter into force on the first day of the next part-session, except for points 2 and 3 of the new Annex IIa, which will enter into force on the first day of its parliamentary term starting in July 2009; points out that Rule 45(1a) shall equally apply to reports authorised before this provision has entered into force;
3. Decides that amendment 5 concerning Rule 39(2) in its decision of 13 November 2007 on the amendment of Parliament's Rules of Procedure in light of the Statute for Members ( 1 ) will enter into force on the first day of the next part-session;
4. Decides, pursuant to Rule 204(c), to publish the decision of the Conference of Presidents on the Rules and Practices concerning own-initiative reports as modified by its decisions of 12 December 2007 and of 14 February 2008 as an annex to the Rules of Procedure; instructs its Secretary General to update this annex in accordance with future decisions by the Conference of Presidents concerning this matter;
5. Instructs its President to forward this decision to the Council and the Commission, for information.
( 1 ) Texts adopted, P6_TA(2007)0500. 3.12.2009 EN Official Journal of the European Union C 294 E/87
Tuesday 8 July 2008
PRESENT TEXT AMENDMENTS
Amendment 1 Parliament's Rules of Procedure Rule 38a (new)
Rule 38a
Rights of initiative conferred on Parliament by the Treaties
In cases where the Treaties confer a right of initiative on Parliament, the committee responsible may decide to draw up an own-initiative report.
The report shall comprise:
(a) a motion for a resolution;
(b) where appropriate, a draft decision or a draft proposal;
(c) an explanatory statement including, where appropriate, a financial statement.
Where the adoption of an act by Parliament requires the approval or the consent of the Council and the opinion or the consent of the Commission, Parliament may, following the vote on the proposed act, and on a proposal by the rapporteur, decide to postpone the vote on the motion for a resolution until the Council or the Commission have stated their position.
Amendment 2 Parliament's Rules of Procedure Rule 45 — paragraph 1a (new)
1a. Motions for a resolution contained in own-initiative reports shall be examined by Parliament pursuant to the short presentation procedure set out in Rule 131a. Amendments to such motions for a resolution shall not be admissible for consideration in plenary unless tabled by the rapporteur to take account of new information, but alternative motions for a resolution may be tabled in accordance with Rule 151(4). This paragraph shall not apply where the subject of the report qualifies for a key debate in plenary, where the report is drawn up pursuant to the right of initiative referred to in Rule 38a or 39, or where the report can be considered a strategic report according to the criteria set out by the Conference of Presidents ( 1 ). ______( 1 ) See the relevant decision of the Conference of Presidents, reproduced in Annex […] to the Rules of Procedure. C 294 E/88 EN Official Journal of the European Union 3.12.2009
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PRESENT TEXT AMENDMENTS
Amendment 3 Parliament's Rules of Procedure Rule 45 — paragraph 2 — subparagraph 1
2. The provisions of this Rule shall apply mutatis mutandis 2. Where the subject of the report comes under the right of in cases where the Treaties attribute the right of initiative to initiative referred to in Rule 38a, authorisation may be Parliament. withheld only on the grounds that the conditions set out in the Treaties are not met.
Amendment 4 Parliament's Rules of Procedure Rule 45 — paragraph 2 — subparagraph 2
In such cases, the Conference of Presidents shall take a decision 2a. In the cases referred to in Rule 38a and Rule 39, the within two months. Conference of Presidents shall take a decision within two months.
Amendment 5 Parliament's Rules of Procedure Rule 110 — paragraph 1
1. Questions for written answer may be put by any Member to the 1. Any Member may put questions for written answer to the Council or the Commission. The content of questions shall be the Council or the Commission in accordance with guidelines laid sole responsibility of their authors. down in an annex to these Rules of Procedure ( 1 ). The content of questions shall be the sole responsibility of their authors. ______( 1 ) See Annex IIa.
Amendment 6 Parliament's Rules of Procedure Rule 110 — paragraph 2
2. Questions shall be submitted in writing to the President 2. Questions shall be submitted in writing to the President who shall forward them to the institution concerned. who shall forward them to the institution concerned. Doubts concerning the admissibility of a question shall be settled by the President. His decision shall be notified to the questioner.
Amendment 7 Parliament's Rules of Procedure Rule 111 — paragraph 1
1. Any Member may put questions for written answer to the 1. Any Member may put questions for written answer to the European Central Bank. European Central Bank in accordance with guidelines laid down in an annex to these Rules of Procedure ( 1 ). ______( 1 ) See Annex IIa. 3.12.2009 EN Official Journal of the European Union C 294 E/89
Tuesday 8 July 2008
PRESENT TEXT AMENDMENTS
Amendment 8 Parliament's Rules of Procedure Rule 131a (new)
Rule 131a
Short presentation
At the request of the rapporteur or on a proposal of the Conference of Presidents, Parliament may also decide that an item not needing a full debate be dealt with by means of a short presentation in plenary by the rapporteur. In that event, the Commission shall have the opportunity to intervene and any Member shall have the right to react by handing in an additional written statement pursuant to Rule 142(7).
Amendment 9 Parliament's Rules of Procedure Rule 142 — paragraph 5
5. The Commission and Council shall be heard in the debate 5. The Commission and Council shall be heard in the debate on a report as a rule immediately after its presentation by the on a report as a rule immediately after its presentation by the rapporteur. However, in a debate on a Commission proposal, rapporteur. The Commission, the Council and the rapporteur the President shall invite the Commission to speak first in may be heard again, in particular to respond to the statements order to briefly present its proposal, and when debating a made by Members. text originating from the Council, the President may invite the Council to speak first, in each case to be followed by the rapporteur. The Commission and Council may be heard again, in particular to respond to the statements made by Members.
Amendment 10 Parliament's Rules of Procedure Rule 151 — paragraph 4
4. A political group may table an alternative motion for a 4. A political group or at least forty members may table an resolution to a non-legislative motion for a resolution contained alternative motion for a resolution to a non-legislative motion in a committee report. for a resolution contained in a committee report.
In such a case, the group may not table amendments to the In such a case, the group or the members concerned may not motion for a resolution by the committee responsible. The table amendments to the motion for a resolution by the group's motion for a resolution may not be longer than the committee responsible. The alternative motion for a resolution committee's motion for a resolution. It shall be put to a single may not be longer than the committee's motion for a vote in Parliament without amendment. resolution. It shall be put to a single vote in Parliament without amendment.
Rule 103(4) shall apply mutatis mutandis.
Amendment 11 Parliament's Rules of Procedure Annex IIa (new)
ANNEX IIa Guidelines for questions for written answer under Rules 110 and 111
1. Questions for written answer shall: — fall within the competence and sphere of responsibility of the institution concerned and be of general interest; — be concise and contain an understandable interrogation; C 294 E/90 EN Official Journal of the European Union 3.12.2009
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PRESENT TEXT AMENDMENTS
— not contain offensive language;
— not relate to strictly personal matters.
2. If a question does not comply with these guidelines, the Secretariat shall provide the author with advice on how the question may be drafted in order to be admissible.
3. If an identical or similar question has been put and answered during the preceding six months, the Secretariat shall transmit a copy of the previous question and answer to the author. The renewed question shall not be forwarded to the institution concerned unless the author invokes new significant developments or is seeking further information.
4. If a question seeks factual or statistical information that is already available to Parliament's library, the latter shall inform the Member, who may withdraw the question.
5. Questions concerning related matters may be answered together. 3.12.2009 EN Official Journal of the European Union C 294 E/91
Wednesday 9 July 2008
Formation of political groups (amendment of Rule 29) P6_TA(2008)0351 European Parliament decision of 9 July 2008 on amendment of Rule 29 of Parliament's Rules of Procedure — Formation of political groups (2006/2201(REG)) (2009/C 294 E/23)
The European Parliament,
— having regard to the proposal for amendment of its Rules of Procedure (B6-0420/2006),
— having regard to Rules 201 and 202 of its Rules of Procedure,
— having regard to the report of the Committee on Constitutional Affairs (A6-0206/2008),
1. Decides to amend its Rules of Procedure as shown below;
2. Decides that the amendment will enter into force on the first day of the first part-session following the European elections in the year 2009;
3. Instructs its President to forward this decision to the Council and the Commission, for information.
PRESENT TEXT AMENDMENTS
Amendment 3 Parliament's Rules of Procedure Rule 29 — paragraph 2
2. A political group shall comprise Members elected in at 2. A political group shall comprise Members elected in at least one-fifth of the Member States. The minimum number least one-quarter of the Member States. The minimum of Members required to form a political group shall be 20. number of Members required to form a political group shall be 25.
Amendment 1
Parliament's Rules of Procedure Rule 29 — paragraph 2a (new)
2a. Where a group falls below the required threshold, the President, with the agreement of the Conference of Presidents, may allow it to continue to exist until Parliament's next constitutive sitting, provided the following conditions are met:
— the members continue to represent at least one-fifth of the Member States;
— the group has been in existence for a period longer than one year.
The President shall not apply this derogation where there is sufficient evidence to suspect that it is being abused. C 294 E/92 EN Official Journal of the European Union 3.12.2009
Tuesday 8 July 2008
III (Preparatory acts)
EUROPEAN PARLIAMENT
European Neighbourhood and Partnership Instrument: general provisions ***I P6_TA(2008)0315 European Parliament legislative resolution of 8 July 2008 on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 1638/2006 laying down general provisions establishing a European Neighbourhood and Partnership Instrument (COM(2008)0308 — C6-0200/2008 — 2008/0095(COD)) (2009/C 294 E/24) (Codecision procedure: first reading)
The European Parliament,
— having regard to the Commission proposal to the European Parliament and the Council (COM(2008)0308),
— having regard to Article 251(2) and Articles 179 and 181a of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0200/2008),
— having regard to Rules 51 and 43(1) of its Rules of Procedure,
— having regard to the report of the Committee on Foreign Affairs (A6-0271/2008),
1. Approves the Commission proposal;
2. Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;
3. Instructs its President to forward its position to the Council and the Commission. 3.12.2009 EN Official Journal of the European Union C 294 E/93
Tuesday 8 July 2008
Direct support schemes under the CAP * P6_TA(2008)0316 European Parliament legislative resolution of 8 July 2008 on the proposal for a Council regulation amending Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (COM(2008)0247 — C6-0208/2008 — 2008/0088(CNS)) (2009/C 294 E/25) (Consultation procedure)
The European Parliament,
— having regard to the Commission proposal to the Council (COM(2008)0247),
— having regard to Article 37 of the EC Treaty, pursuant to which the Council consulted Parliament (C6- 0208/2008),
— having regard to Rules 51 and 43(1) of its Rules of Procedure,
— having regard to the report of the Committee on Agriculture and Rural Development (A6-0270/2008),
1. Approves the Commission proposal;
2. Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;
3. Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially;
4. Instructs its President to forward its position to the Council and the Commission.
Minimum safety and health requirements for the use of work equipment ***I P6_TA(2008)0317 European Parliament legislative resolution of 8 July 2008 on the proposal for a directive of the European Parliament and of the Council on the minimum safety and health requirements for the use of work equipment by workers at work (second individual Directive within the meaning of Article16(1) of Directive 89/391/EEC) (codified version) (COM(2008)0111 — C6-0127/2008 — 2006/0214(COD)) (2009/C 294 E/26) (Codecision procedure — codification)
The European Parliament,
— having regard to the amended Commission proposal to the European Parliament and the Council (COM(2008)0111),
— having regard to Articles 251(2) and Article 137(2) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0127/2008), C 294 E/94 EN Official Journal of the European Union 3.12.2009
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— having regard to the Interinstitutional Agreement of 20 December 1994 — Accelerated working method for official codification of legislative texts ( 1),
— having regard to Rules 80 and 51 of its Rules of Procedure,
— having regard to the report of the Committee on Legal Affairs (A6-0290/2008),
A. whereas in the opinion of the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission, the proposal in question contains a straightforward codification of the existing texts without any change in their substance,
1. Approves the Commission proposal as adapted to the recommendations of the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission;
2. Instructs its President to forward its position to the Council and the Commission.
( 1 ) OJ C 102, 4.4.1996, p. 2.
Conservation of wild birds (adaptation to the regulatory procedure with scrutiny)***I P6_TA(2008)0318 European Parliament legislative resolution of 8 July 2008 on the proposal for a directive of the European Parliament and of the Council amending, as regards the implementing powers conferred on the Commission, Council Directive 79/409/EEC on the conservation of wild birds (COM(2008)0105 — C6-0088/2008 — 2008/0038(COD)) (2009/C 294 E/27) (Codecision procedure: first reading)
The European Parliament,
— having regard to the Commission proposal to the European Parliament and the Council (COM(2008)0105),
— having regard to Article 251(2) and Article 175(1) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0088/2008),
— having regard to Rule 51 of its Rules of Procedure,
— having regard to the report of the Committee on the Environment, Public Health and Food Safety (A6- 0259/2008),
1. Approves the Commission proposal;
2. Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;
3. Instructs its President to forward its position to the Council and the Commission. 3.12.2009 EN Official Journal of the European Union C 294 E/95
Tuesday 8 July 2008
Common system of value added tax * P6_TA(2008)0319 European Parliament legislative resolution of 8 July 2008 on the proposal for a Council directive amending VAT Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (COM(2007)0677 — C6-0433/2007 — 2007/0238(CNS)) (2009/C 294 E/28) (Consultation procedure)
The European Parliament,
— having regard to the Commission proposal to the Council (COM(2007)0677),
— having regard to Article 93 of the EC Treaty, pursuant to which the Council consulted Parliament (C6- 0433/2007),
— having regard to Rule 51 of its Rules of Procedure,
— having regard to the report of the Committee on Economic and Monetary Affairs (A6-0232/2008),
1. Approves the Commission proposal as amended;
2. Calls on the Commission to alter its proposal accordingly, pursuant to Article 250(2) of the EC Treaty;
3. Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;
4. Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially;
5. Instructs its President to forward its position to the Council and the Commission.
TEXT PROPOSED BY THE COMMISSION AMENDMENTS
Amendment 1 Proposal for a directive — amending act Recital 2
(2) Regarding the provisions on imports and the place where (2) Under the current rules, VAT on natural gas and elec the supply of natural gas and electricity is taxed, the special tricity is levied at the place of actual consumption by the scheme set up under Council Directive 2003/92/EC of customer. Those rules prevent any distortion of competition 7 October 2003 amending Directive 77/388/EEC as regards between Member States. Regarding the provisions on imports the rules on the place of supply of gas and electricity does and the place where the supply of natural gas and electricity is not apply to imports or supplies of natural gas by pipelines taxed, the special scheme set up under Council Directive 2003/ that are not part of the distribution system, and in particular 92/EC of 7 October 2003 amending Directive 77/388/EEC as pipelines in the transmission system by which almost all cross- regards the rules on the place of supply of gas and electricity border transactions by pipeline are carried out. The scope of the does not apply to imports or supplies of natural gas by special scheme should therefore be extended to include imports pipelines that are not part of the distribution system, and in and supplies of natural gas by any pipeline. particular pipelines in the transmission system by which almost all cross-border transactions by pipeline are carried out. The scope of the special scheme is unduly restricted, does not correspond to the economic reality and should therefore be extended to include imports and supplies of natural gas by any pipeline. More clarity is needed, furthermore, in order to ensure the consistent application and interpretation of Directive 2006/112/EC throughout the Community, in line C 294 E/96 EN Official Journal of the European Union 3.12.2009
Tuesday 8 July 2008
TEXT PROPOSED BY THE COMMISSION AMENDMENTS
with the definitions laid down in Article 2 of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas ( 1 ) , which explain what is meant by the transmission and distribution of gas through pipelines. ______( 1 ) OJ L 176, 15.7.2003, p. 57.
Amendment 2 Proposal for a directive — amending act Recital 3
(3) The special scheme does not currently apply to imports (3) The special scheme does not currently apply to imports and supplies of natural gas by vessels for transporting natural and supplies of natural gas by vessels for transporting natural gas either, even though such gas is identical in terms of its gas either, even though such gas is identical in terms of its characteristics to that imported or supplied by pipeline and characteristics to that imported or supplied by pipeline and intended, following gasification, for transportation by pipeline. intended, following gasification, for transportation by pipeline. The scope of the special scheme should therefore be extended The scope of the special scheme should therefore be extended to include imports and supplies of natural gas by vessels for to include imports and supplies of natural gas by vessels for transporting natural gas. transporting natural gas between pipelines.
Amendment 3 Proposal for a directive — amending act Recital 4
(4) The first cross-border heat and refrigeration networks are (4) The first cross-border heat and refrigeration networks are already operational. The same issues that apply to the supply already operational. The same issues that arise with regard to and import of natural gas or electricity also apply to the supply the supply and import of natural gas or electricity also arise and import of heat or refrigeration. Under the current rules, with regard to the supply and import of heat or refrigeration. VAT on natural gas and electricity is levied at the place where Consequently, the same scheme that applies to natural gas and they are actually consumed by the customer. The rules thus electricity should be applied to heat and refrigeration. prevent any distortion of competition between Member States. Consequently, the same scheme that applies to natural gas and electricity should be applied to heat and refrigeration.
Amendment 4 Proposal for a directive — amending act Recital 6
(6) Experience gained during the recent implementation of (6) Experience gained during the recent implementation of the current procedure, whereby the Commission is charged the procedure laid down in Article 102 of Directive 2006/ with deciding whether a risk of distortion of competition 112/EC, whereby the Commission is charged with deciding exists as a result of the application of a reduced VAT rate to whether a risk of distortion of competition exists as a result natural gas, electricity and district heating, has demonstrated of the application of a reduced VAT rate to natural gas, elec that the procedure is obsolete and superfluous. The rules for tricity and district heating, has demonstrated that the procedure determining the place of taxation ensure that VAT is levied at is obsolete and superfluous. The rules for determining the place the place where the natural gas, electricity, heat and refrig of taxation ensure that VAT is levied at the place where the eration are actually consumed by the customer. They thus natural gas, electricity, heat and refrigeration are actually prevent any distortion of competition between Member States. consumed by the customer, which makes the VAT rate Nevertheless, it is still important that the Commission and the neutral. Those rules thus prevent any distortion of competition other Member States be properly informed whenever a Member between Member States. Nevertheless, it is still important that State introduces a lower rate in this very sensitive sector. the Commission and the other Member States be properly Consequently, a prior consultation procedure involving the informed whenever a Member State introduces a lower rate in VAT Committee is needed. this very sensitive sector. Consequently, a prior consultation procedure involving the VAT Committee is needed. 3.12.2009 EN Official Journal of the European Union C 294 E/97
Tuesday 8 July 2008
TEXT PROPOSED BY THE COMMISSION AMENDMENTS
Amendment 5 Proposal for a directive — amending act Recital 7
(7) The joint undertakings and other structures set up under (7) The joint undertakings and other structures set up under Article 171 of the EC Treaty are responsible for implementing Article 171 of the EC Treaty are responsible for implementing Community policies. In order to avoid taxation benefiting the Community policies. In order to avoid taxation benefiting the Member State where the tax is payable, to the detriment of the Member State where the tax is payable, to the detriment of the other Member States and the European Communities, it is other Member States and the European Communities, it is necessary to grant the VAT exemption on input purchases to necessary to grant the VAT exemption on input purchases to joint undertakings set up by the Communities that have legal joint undertakings set up by the Communities that have legal personality and receive contributions charged to their general personality and receive contributions charged to their general budget under Council Regulation (EC, Euratom) No 1605/2002 budget under Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities. general budget of the European Communities, provided that they do not exercise any economic activity within the meaning of the second subparagraph of Article 9(1) of Directive 2006/112/EC.
Amendment 6 Proposal for a directive — amending act Recital 10
(10) In this context, this rule should be applied to (10) In this context, this rule should be applied to immovable property that is supplied to the taxable person immovable property that is supplied to the taxable person and important services relating to the property supplied. These and important services relating to the property supplied, situations account for the most significant cases, given the value which, by virtue of their economic value, can be assimilated and economic lifetime of such property and the fact that mixed to the acquisition of immovable property. Those situations use of this type of property is a common practice. account for the most significant cases, given the value and economic lifetime of such property and the fact that mixed use of this type of property is a common practice. Conversely, minor repairs or improvements that are of limited economic significance should be excluded from the scope of this Directive.
Amendment 7 Proposal for a directive — amending act Article 1 — point 3a (new) Directive 2006/112/EC Title V — Chapter 1 — Section 4 — title
(3a) In Title V, Chapter 1, Section 4, the title shall be replaced by the following:
Supply of goods through transmission or distribution networks.
Amendment 8 Proposal for a directive — amending act Article 1 — point 4 Directive 2006/112/EC Article 38 — paragraph 1
1. In the case of the supply of gas by pipeline or by vessel 1. In the case of the supply of gas by pipeline or by vessel for transporting natural gas, electricity and heat or refrigeration for transporting natural gas between pipelines, electricity and supplied by heat or refrigeration networks to a taxable dealer, heat or refrigeration supplied by heat or refrigeration networks the place of supply shall be deemed to be the place where that to a taxable dealer, the place of supply shall be deemed to be taxable dealer has established his business or has a fixed the place where that taxable dealer has established his business C 294 E/98 EN Official Journal of the European Union 3.12.2009
Tuesday 8 July 2008
TEXT PROPOSED BY THE COMMISSION AMENDMENTS establishment for which the goods are supplied or, in the or has a fixed establishment for which the goods are supplied absence of such a place of business or fixed establishment, or, in the absence of such a place of business or fixed estab the place where he has his permanent address or usually resides. lishment, the place where he has his permanent address or usually resides.
Amendment 9 Proposal for a directive — amending act Article 1 — point 4 Directive 2006/112/EC Article 39 — paragraph 1
In the case of the supply of natural gas by pipeline or by vessel In the case of the supply of natural gas by pipeline or by vessel for transporting natural gas, electricity and heat or refrigeration, for transporting natural gas between pipelines, electricity and where such a supply is not covered by Article 38, the place of heat or refrigeration, where such a supply is not covered by supply shall be deemed to be the place where the customer Article 38, the place of supply shall be deemed to be the place effectively uses and consumes the goods. where the customer effectively uses and consumes the goods.
Amendment 10 Proposal for a directive — amending act Article 1 — point 11 Directive 2006/112/EC Article 168a — paragraph 1
In the event of acquisition, construction, renovation or In the event of acquisition, construction, renovation or substantial transformation of immovable property, the initial substantial transformation of immovable property, the initial exercise of the right of deduction arising when the tax exercise of the right of deduction arising when the tax becomes chargeable shall be limited to the proportion of the becomes chargeable shall be limited to the proportion of the property's effective use for transactions giving rise to a right of property's effective use for transactions giving rise to a right of deduction. deduction. Minor repairs or improvements shall be excluded from the scope of this provision.
Protocol on Strategic Environmental Assessment to the 1991 UN/ECE Espoo Convention on Environmental Impact Assessment in a Transboundary Context * P6_TA(2008)0320 European Parliament legislative resolution of 8 July 2008 on the proposal for a Council decision on the approval on behalf of the European Community of the Protocol on Strategic Environmental Assessment to the 1991 UN/ECE Espoo Convention on Environmental Impact Assessment in a Transboundary Context (COM(2008)0132 — C6-0161/2008 — 2008/0052(CNS)) (2009/C 294 E/29) (Consultation Procedure)
The European Parliament,
— having regard to the proposal for a Council decision (COM(2008)0132),
— having regard to the Protocol on Strategic Environmental Assessment to the 1991 UN/ECE Espoo Convention on Environmental Impact Assessment in a Transboundary Context,
— having regard to Article 175(1) and Article 300(2), first subparagraph, first sentence of the EC Treaty, 3.12.2009 EN Official Journal of the European Union C 294 E/99
Tuesday 8 July 2008
— having regard to Article 300(3), first subparagraph, of the EC Treaty, pursuant to which the Council consulted Parliament (C6-0161/2008),
— having regard to Rules 51 and 83(7) of its Rules of Procedure,
— having regard to the report of the Committee on the Environment, Public Health and Food Safety (A6- 0221/2008),
1. Approves conclusion of the protocol;
2. Instructs its President to forward its position to the Council and the Commission, and to the governments and parliaments of the Member States and the United Nations Economic Commission for Europe.
Protocol on the Accession of Liechtenstein to the EU/EC/Switzerland Agreement on Switzerland's association with the Schengen acquis * P6_TA(2008)0321 European Parliament legislative resolution of 8 July 2008 on the proposal for a Council decision on the conclusion, on behalf of the European Community, of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis (COM(2006)0752 — C6-0089/2008 — 2006/0251(CNS)) (2009/C 294 E/30) (Consultation procedure)
The European Parliament,
— having regard to the proposal for a Council decision (COM(2006)0752),
— having regard to the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis,
— having regard to Article 62, Article 63(1), points (3)(a) and (b), Articles 66 and 95, and Article 300(2), first subparagraph, of the EC Treaty,
— having regard to Article 300(3), first subparagraph, of the EC Treaty, pursuant to which the Council consulted Parliament (C6-0089/2008),
— having regard to the opinion of the Committee on Legal Affairs on the proposed legal basis,
— having regard to Rules 51, 83(7) and 35 of its Rules of Procedure,
— having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A6- 0246/2008),
1. Approves the proposal for a Council decision as amended and approves the conclusion of the Protocol;
2. Reserves the right to defend its prerogatives as conferred by the Treaty; C 294 E/100 EN Official Journal of the European Union 3.12.2009
Tuesday 8 July 2008
3. Instructs its President to forward its position to the Council, the Commission, the governments and parliaments of the Member States and the government and parliament of the Principality of Liechtenstein.
TEXT PROPOSED BY THE COMMISSION AMENDMENTS
Amendment 1 Proposal for a Council decision Citation 1
Having regard to the Treaty establishing the European Having regard to the Treaty establishing the European Community, and in particular Articles 62, 63 point 3 a) and Community, and in particular Articles 62, 63 point 3 a) and b), 66 and 95 in conjunction with the second sentence of the b), 66 and 95 in conjunction with the second sentence of the first subparagraph of Article 300(2) and the first subparagraph first subparagraph of Article 300(2) and the second of Article 300(3) thereof, subparagraph of Article 300(3) thereof,
Amendment 2 Proposal for a Council decision Citation 3 Having regard the opinion of the European Parliament, Having regard to the assent of the European Parliament,
Protocol on the Accession of Liechtenstein to the EC/Switzerland Agreement for establishing the State responsible for examining asylum requests * P6_TA(2008)0322 European Parliament legislative resolution of 8 July 2008 on the proposal for a Council decision on the conclusion of a Protocol between the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland (COM(2006)0754 — C6-0090/2008 — 2006/0252(CNS)) (2009/C 294 E/31) (Consultation procedure)
The European Parliament,
— having regard to the proposal for a Council decision (COM(2006)0754),
— having regard to the Protocol between the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland,
— having regard to Article 63(1)(a) and Article 300(2), first subparagraph, of the EC Treaty,
— having regard to Article 300(3), first subparagraph, of the EC Treaty, pursuant to which the Council consulted Parliament (C6-0090/2008),
— having regard to the opinion of the Committee on Legal Affairs on the proposed legal basis, 3.12.2009 EN Official Journal of the European Union C 294 E/101
Tuesday 8 July 2008
— having regard to Rules 51, 83(7) and 35 of its Rules of Procedure,
— having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A6- 0247/2008),
1. Approves the proposal for a Council decision as amended and approves the conclusion of the Protocol;
2. Reserves the right to defend its prerogatives as conferred by the Treaty;
3. Instructs its President to forward its position to the Council, the Commission, the governments and parliaments of the Member States, and the Government and Parliament of the Principality of Liechtenstein.
TEXT PROPOSED BY THE COMMISSION AMENDMENTS
Amendment 1 Proposal for a Council decision Citation 1
Having regard to the Treaty establishing the European Having regard to the Treaty establishing the European Community, and in particular Article 63(1)(a) thereof, in Community, and in particular Article 63(1)(a) thereof, in conjunction with the first sentence of the first subparagraph conjunction with the first sentence of the first subparagraph of Article 300(2) and the first subparagraph of Article 300(3) of Article 300(2) and the second subparagraph of thereof, Article 300(3) thereof,
Amendment 2 Proposal for a Council decision Citation 3 Having regard to the opinion of the European Parliament, Having regard to the assent of the European Parliament,
Protocol to the EC/Switzerland Agreement for establishing the State responsible for examining asylum requests * P6_TA(2008)0323 European Parliament legislative resolution of 8 July 2008 on the proposal for a Council decision on the conclusion of a Protocol between the European Community, Switzerland and Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State, in Switzerland or Liechtenstein (COM(2006)0753 — C6-0091/2008 — 2006/0257(CNS)) (2009/C 294 E/32) (Consultation procedure)
The European Parliament,
— having regard to the proposal for a Council decision (COM(2006)0753),
— having regard to the Protocol between the European Community, Switzerland and Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State, in Switzerland or Liechtenstein, C 294 E/102 EN Official Journal of the European Union 3.12.2009
Tuesday 8 July 2008
— having regard to Article 63(1)(a) and Article 300(2), first subparagraph, of the EC Treaty,
— having regard to Article 300(3), first subparagraph, of the EC Treaty, pursuant to which the Council consulted Parliament (C6-0091/2008),
— having regard to the opinion of the Committee on Legal Affairs on the proposed legal basis,
— having regard to Rules 51, 83(7) and 35 of its Rules of Procedure,
— having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A6- 0261/2008),
1. Approves the proposal for a Council decision as amended and approves the conclusion of the Protocol;
2. Reserves the right to defend its prerogatives as conferred by the Treaty;
3. Instructs its President to forward its position to the Council, the Commission, the governments and parliaments of the Member States, and the governments and parliaments of the Swiss Confederation and the Principality of Liechtenstein.
TEXT PROPOSED BY THE COMMISSION AMENDMENTS
Amendment 1 Proposal for a Council decision Citation 1
Having regard to the Treaty establishing the European Having regard to the Treaty establishing the European Community, and in particular Article 63(1)(a) thereof, in Community, and in particular Article 63(1)(a) thereof, in conjunction with the first sentence of the first subparagraph conjunction with the first sentence of the first subparagraph of Article 300(2) and the first subparagraph of Article 300(3) of Article 300(2) and the second subparagraph of thereof, Article 300(3) thereof,
Amendment 2 Proposal for a Council decision Citation 3 Having regard to the opinion of the European Parliament, Having regard to the assent of the European Parliament,
Numbering of visas * P6_TA(2008)0324 European Parliament legislative resolution of 8 July 2008 on the proposal for a Council regulation amending Regulation (EC) No 1683/95 laying down a uniform format for visas as regards the numbering of visas (COM(2008)0188 — C6-0187/2008 — 2008/0074(CNS)) (2009/C 294 E/33) (Consultation procedure)
The European Parliament,
— having regard to the Commission proposal (COM(2008)0188),
— having regard to Article 62(2)(b)(iii) of the EC Treaty, 3.12.2009 EN Official Journal of the European Union C 294 E/103
Tuesday 8 July 2008
— having regard to Article 67 of the EC Treaty, pursuant to which the Council consulted Parliament (C6- 0187/2008),
— having regard to Rule 51 of its Rules of Procedure,
— having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A6- 0268/2008),
1. Approves the Commission proposal;
2. Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;
3. Calls on the Council to consult Parliament again if it intends to amend the Commission proposal substantially;
4. Instructs its President to forward its position to the Council and the Commission.
Renewing the Agreement for scientific and technological cooperation between the European Community and the Government of the Republic of India * P6_TA(2008)0325 European Parliament legislative resolution of 8 July 2008 on the draft Council decision concerning the conclusion of an Agreement renewing the Agreement for scientific and technological cooperation between the European Community and the Government of the Republic of India (16681/2007 — COM(2007)0576 — C6-0073/2008 — 2007/0207(CNS)) (2009/C 294 E/34) (Consultation procedure)
The European Parliament,
— having regard to the proposal for a Council decision (COM(2007)0576),
— having regard to the draft Council decision (16681/2007),
— having regard to Articles 170(2) and 300(2), first subparagraph of the EC Treaty,
— having regard to Article 300(3), first subparagraph, of the EC Treaty, pursuant to which the Council consulted Parliament (C6-0073/2008),
— having regard to Rule 51 and Rule 83(7) of its Rules of Procedure,
— having regard to the report of the Committee on Industry, Research and Energy (A6-0254/2008),
1. Approves the draft Council decision as amended and approves the conclusion of the agreement;
2. Instructs its President to forward its position to the Council and Commission, and the governments and parliaments of the Member States and the Government of the Republic of India. C 294 E/104 EN Official Journal of the European Union 3.12.2009
Tuesday 8 July 2008
TEXT PROPOSED BY THE COUNCIL AMENDMENTS
Amendment 1 Draft decision Recital 3a (new)
(3a) The Agreement is key to seeking to achieve the aims of the EU-India strategic partnership of 2004 and pursuing broader political goals.
Amendment 2 Draft decision Recital 3b (new)
(3b) The EC-India S & T Steering Committee is responsible for the efficient coordination and facilitation of cooperation activities under the Agreement. It is desirable that the committee convene annually to review the work programme and that its rules of procedure be based on the principles of transparency and accountability.
Amendment 3 Draft decision Recital 3c (new)
(3c) Priority objectives of the joint research activities to be carried out under the Agreement should be to produce comparable information and to improve the body of data.
Amendment 4 Draft decision Recital 3d (new)
(3d) In implementing the Agreement, efforts should be made by both parties to increase the participation of the Community and India in each other's research programmes, to boost the number of exchanges of researchers between the Community and India, and to improve the mobility of researchers generally.
Amendment 5 Draft decision Recital 3e (new)
(3e) In implementing the Agreement, priority should also be given to energy and environment policies and to the necessary development of innovative energy technologies. Joint efforts and initiatives, with a view, for example, to developing economical carbon capture and storage and renewable technologies, which are in the interest of both partners, should be undertaken. 3.12.2009 EN Official Journal of the European Union C 294 E/105
Tuesday 8 July 2008
TEXT PROPOSED BY THE COUNCIL AMENDMENTS
Amendment 6 Draft decision Recital 3f (new)
(3f) In the implementation of the Agreement, particular emphasis should be placed on the principle of reciprocity.
Amendment 7 Draft decision Recital 3g (new)
(3g) It is desirable that a mid-term evaluation of the imple mentation of the Agreement be carried out.
Common authorisation procedure for food additives, food enzymes and food flavourings ***II P6_TA(2008)0329 European Parliament legislative resolution of 8 July 2008 on the Council common position for adopting a regulation of the European Parliament and of the Council establishing a common authorisation procedure for food additives, food enzymes and food flavourings (16673/2/2007 — C6-0138/2008 — 2006/0143(COD)) (2009/C 294 E/35) (Codecision procedure: second reading)
The European Parliament,
— having regard to the Council common position (16673/2/2007 — C6-0138/2008) ( 1 ),
— having regard to its position at first reading ( 2) on the Commission proposal to Parliament and the Council (COM(2006)0423),
— having regard to the amended proposal (COM(2007)0672),
— having regard to Article 251(2) of the EC Treaty,
— having regard to Rule 62 of its Rules of Procedure,
— having regard to the recommendation for second reading of the Committee on the Environment, Public Health and Food Safety (A6-0179/2008),
1. Approves the common position as amended;
2. Instructs its President to forward its position to the Council and Commission.
( 1 ) OJ C 111 E, 6.5.2008, p. 1. ( 2 ) Texts adopted, 10.7.2007, P6_TA(2007)0320NRT. C 294 E/106 EN Official Journal of the European Union 3.12.2009
Tuesday 8 July 2008
P6_TC2-COD(2006)0143 Position of the European Parliament adopted at second reading on 8 July 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council establishing a common authorisation procedure for food additives, food enzymes and food flavourings
(As an agreement was reached between Parliament and Council, Parliament's position at second reading corresponds to the final legislative act, Regulation (EC) No 1331/2008).
Food additives ***II P6_TA(2008)0330 European Parliament legislative resolution of 8 July 2008 on the Council common position for adopting a regulation of the European Parliament and of the Council on food additives (16675/2/2007 — C6-0141/2008 — 2006/0145(COD)) (2009/C 294 E/36) (Codecision procedure: second reading)
The European Parliament,
— having regard to the Council common position (16675/2/2007 — C6-0141/2008) ( 1 ),
— having regard to its position at first reading ( 2) on the Commission proposal to Parliament and the Council (COM(2006)0428),
— having regard to the amended Commission proposal (COM(2007)0673),
— having regard to Article 251(2) of the EC Treaty,
— having regard to Rule 62 of its Rules of Procedure,
— having regard to the recommendation for second reading of the Committee on the Environment, Public Health and Food Safety (A6-0180/2008),
1. Approves the common position as amended;
2. Instructs its President to forward its position to the Council and Commission.
( 1 ) OJ C 111 E, 6.5.2008, p. 10. ( 2 ) Texts adopted, 10.7.2007, P6_TA(2007)0321.
P6_TC2-COD(2006)0145 Position of the European Parliament adopted at second reading on 8 July 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council on food additives
(As an agreement was reached between Parliament and Council, Parliament's position at second reading corresponds to the final legislative act, Regulation (EC) No 1333/2008.) 3.12.2009 EN Official Journal of the European Union C 294 E/107
Tuesday 8 July 2008
Flavourings and certain food ingredients with flavouring properties ***II P6_TA(2008)0331 European Parliament legislative resolution of 8 July 2008 on the Council common position for adopting a regulation of the European Parliament and of the Council on flavourings and certain food ingredients with flavouring properties for use in and on foods and amending Council Regulations (EEC) No 1576/89 and (EEC) No 1601/91, Regulation (EC) No 2232/96 and Directive 2000/13/EC (16677/3/2007 — C6-0139/2008 — 2006/0147(COD)) (2009/C 294 E/37) (Codecision procedure: second reading)
The European Parliament,
— having regard to the Council common position (16677/3/2007 — C6-0139/2008) ( 1 ),
— having regard to its position at first reading ( 2) on the Commission proposal to Parliament and the Council (COM(2006)0427),
— having regard to Article 251(2) of the EC Treaty,
— having regard to Rule 62 of its Rules of Procedure,
— having regard to the recommendation for second reading of the Committee on the Environment, Public Health and Food Safety (A6-0177/2008),
1. Approves the common position as amended;
2. Instructs its President to forward its position to the Council and Commission.
( 1 ) OJ C 111 E, 6.5.2008, p. 46. ( 2 ) Texts adopted, 10.7.2007, P6_TA(2007)0323.
P6_TC2-COD(2006)0147 Position of the European Parliament adopted at second reading on 8 July 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council on flavourings and certain food ingredients with flavouring properties for use in and on foods and amending Council Regulation (EEC) No 1601/91, Regulations (EC) No 2232/96 and (EC) No 110/2008 and Directive 2000/13/EC
(As an agreement was reached between Parliament and Council, Parliament's position at second reading corresponds to the final legislative act, Regulation (EC) No 1334/2008.) C 294 E/108 EN Official Journal of the European Union 3.12.2009
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Food enzymes ***II P6_TA(2008)0332 European Parliament legislative resolution of 8 July 2008 on the Council common position for adopting a regulation of the European Parliament and of the Council on food enzymes and amending Council Directive 83/417/EEC, Council Regulation (EC) No 1493/1999, Directive 2000/13/EC, Council Directive 2001/112/EC and Regulation (EC) No 258/97 (16676/1/2007 — C6- 0140/2008 — 2006/0144(COD)) (2009/C 294 E/38) (Codecision procedure: second reading)
The European Parliament,
— having regard to the Council common position (16676/1/2007 — C6-0140/2008) ( 1 ),
— having regard to its position at first reading ( 2) on the Commission proposal to Parliament and the Council (COM(2006)0425),
— having regard to Article 251(2) of the EC Treaty,
— having regard to Rule 62 of its Rules of Procedure,
— having regard to the recommendation for second reading of the Committee on the Environment, Public Health and Food Safety (A6-0176/2008),
1. Approves the common position as amended;
2. Instructs its President to forward its position to the Council and the Commission.
( 1 ) OJ C 111 E, 6.5.2008, p. 32. ( 2 ) Texts Adopted, 10.7.2007, P6_TA(2007)0322.
P6_TC2-COD(2006)0144 Position of the European Parliament adopted at second reading on 8 July 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council on food enzymes and amending Council Directive 83/417/EEC, Council Regulation (EC) No 1493/1999, Directive 2000/13/EC, Council Directive 2001/112/EC and Regulation (EC) No 258/97
(As an agreement was reached between Parliament and Council, Parliament's position at second reading corresponds to the final legislative act, Regulation (EC) No 1332/2008.) 3.12.2009 EN Official Journal of the European Union C 294 E/109
Tuesday 8 July 2008 Amendment of Directive 2003/87/EC so as to include aviation activities inthe scheme for greenhouse gas emission allowance trading within the Community***II P6_TA(2008)0333 European Parliament legislative resolution of 8 July 2008 on the Council common position for adopting a directive of the European Parliament and of the Council amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community (5058/3/2008 — C6-0177/2008 — 2006/0304(COD)) (2009/C 294 E/39) (Codecision procedure: second reading)
The European Parliament,
— having regard to the Council common position (5058/3/2008 — C6-0177/2008) ( 1 ),
— having regard to its position at first reading ( 2) on the Commission proposal to Parliament and the Council (COM(2006)0818),
— having regard to Article 251(2) of the EC Treaty,
— having regard to Rule 62 of its Rules of Procedure,
— having regard to the recommendation for second reading of the Committee on the Environment, Public Health and Food Safety (A6-0220/2008),
1. Approves the common position as amended;
2. Instructs its President to forward its position to the Council and Commission.
( 1 ) OJ C 122 E, 20.5.2008, p. 19. ( 2 ) Texts adopted, 13.11.2007, P6_TA(2007)0505.
P6_TC2-COD(2006)0304 Position of the European Parliament adopted at second reading on 8 July 2008 with a view to the adoption of Directive 2008/…/EC of the European Parliament and of the Council amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community
(As an agreement was reached between Parliament and Council, Parliament's position at second reading corresponds to the final legislative act, Directive 2008/101/EC.) C 294 E/110 EN Official Journal of the European Union 3.12.2009
Tuesday 8 July 2008
2009 budget: First reflections on the 2009 PDB and mandate for the conciliation P6_TA(2008)0335 European Parliament resolution of 8 July 2008 on the 2009 budget: First reflections on the 2009 Preliminary Draft Budget and mandate for the conciliation, Section III — Commission (2008/2025(BUD)) (2009/C 294 E/40)
The European Parliament,
— having regard to the Preliminary Draft Budget for the financial year 2009 which the Commission adopted on 6 May 2008,
— having regard to the Interinstitutional Agreement of 17 May 2006 between the European Parliament, the Council and the Commission on budgetary discipline and sound financial management ( 1) (IIA),
— having regard to Article 272 of the EC Treaty and Article 177 of the Euratom Treaty,
— having regard to its resolutions of 24 April 2008 on the Commission's Annual Policy Strategy for 2009 ( 2 ) and on the budgetary framework and priorities for 2009 ( 3),
— having regard to the Presidency Conclusions of the Brussels European Council held on 19 and 20 June 2008,
— having regard to Rule 69 and Annex IV of its Rules of Procedure,
— having regard to the report of the Committee on Budgets and the opinions of the Committee on Foreign Affairs, the Committee on Development, the Committee on Industry, Research and Energy, the Committee on Transport and Tourism, the Committee on Agriculture and Rural Development, the Committee on Culture and Education (A6-0262/2008),
A. whereas, in 2009, the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (Lisbon Treaty), if ratified, will finally place the Parliament on an equal footing with the Council in the legislative and the budgetary field and will grant new competencies to the European Union, all of which will have an important impact on the EU budget,
B. whereas the annual budgetary procedure as a whole will have to undergo fundamental changes as a consequence of the provisions of the new treaty, and the differentiation between compulsory and non- compulsory expenditure as well as the (maximum) rate of increase for non-compulsory expenditure will be abandoned,
C. whereas on 16 April 2008 the three institutions agreed in a declaration to undertake discussions, as soon as possible, on the necessary arrangements on budgetary issues related to the Lisbon Treaty, bearing in mind that 2009 will bring a new Parliament and a new Commission which will have to be fully prepared for the changes brought about by the new Treaty, if ratified,
Preliminary Draft Budget 2009 1. Notes that the total for the preliminary draft budget (PDB) for 2009 is EUR 134 394,9 million in commitment appropriations and EUR 116 736,4 million in payment appropriations, leaving a margin of EUR 2 638,1 million under the ceiling in commitments and of EUR 7 443,6 million in payments, with compulsory expenditure accounting for 33 % of commitments and 38 % of payments;
( 1 ) OJ C 139, 14.6.2006, p. 1. Agreement as last amended by Decision 2008/371/EC of the European Parliament and of the Council (OJ L 128, 16.5.2008, p. 8). ( 2 ) Texts adopted, P6_TA(2008)0174. ( 3 ) Texts adopted, P6_TA(2008)0175. 3.12.2009 EN Official Journal of the European Union C 294 E/111
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2. Points out that commitments in the PDB 2009 correspond to 1,04 % of GNI, which is an overall increase of 3,1 % compared to the budget 2008, with compulsory expenditure having gone up by 4,7 % due to the phasing-in of direct aids for the new Member States, and non-compulsory expenditure by 2,4 %;
3. Notes with interest that PDB 2009 payments correspond to 0,90 % of GNI, which is a decrease of 3,3 % compared to the budget 2008, with payments for compulsory expenditure having risen by 4,8 % in line with the development in commitments while those for non-compulsory expenditure have decreased by 7,6 %;
4. Takes note of the PDB priorities as set out by the Commission:
— Supporting sustainable growth and fostering an economic climate in which job creation can flourish; support for innovation;
— Continuing cohesion policy in order to reduce inequalities between the Union's regions;
— Combating climate change and promoting research into clean and efficient energy; developing an EU energy policy characterised by independence and security;
— Developing a common integration policy and creating a common area of justice;
— Supporting the Middle East peace process as well as stability in Kosovo and the wider Balkan region;
— Supply of food aid and strengthening the environmental strand of development cooperation;
5. Recalls the European Parliament's priorities as expressed in its abovementioned resolution of 24 April 2008 on the Commission's Annual Policy Strategy for 2009;
General reflections 6. Expresses its conviction that the European Union must be equipped with the level of resources necessary to fully implement its current policies and activities and at the same time to have enough flexibility to meet new policy challenges;
7. Notes that by far the largest portion of the overall margin of EUR 2 638 million in the PDB, i.e. an amount of EUR 2 027 million, stems from the margin of market related expenditure and direct payments under heading 2 (first CAP pillar);
8. Notes with interest the abovementioned Presidency Conclusions and the budgetary implications some of those conclusions could have; considers that these budgetary requirements can only be addressed by having recourse to the means provided by the IIA, in particular Points 21 to 23 thereof;
9. Points out that, as a result of the very small margins under the other ceilings of the MFF, in particular in headings 1a, 3b and 4, the Union's capacity to react to policy changes in budgetary terms is extremely limited; underlines, at the same time, the possibility for recourse to the provisions of the IIA to overcome financial shortfalls;
10. Considers it its responsibility as budgetary authority to ensure that the funding allocated to the EU budget is spent with a view to optimising the limited resources; intends to strive for a more ambitious, balanced and coherent budget in cooperation with, and taking into account the requests of, the specialised committees; C 294 E/112 EN Official Journal of the European Union 3.12.2009
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11. Cannot always see a clear correlation between the Commission's political priorities, as described in its Annual Policy Strategy (APS) and the PDB, and increases in the corresponding budget lines and policy areas; is still not satisfied with the attempts of the Commission to include Parliament's priorities in the PDB; is not convinced, for example, that the climate change priority really is reflected throughout the budget as proposed by the Commission; wishes to receive more precise information as to the methodology used to come to the conclusion that over 10 %, or EUR 14 billion, of the EU budget is spent on environmental targets; requests a comprehensive presentation of all climate change related expenditure in the budget, including rural development and structural funds, to be able to evaluate the correlation between political and budgetary priorities; points to the need to revise current programmes at the mid term review in order to better integrate climate change objectives and provide for improved policy coherence;
12. Wishes to enter into a dialogue with the Council and Commission on the use of the means provided for in the IIA to reinforce funding for measures to combat climate change with a view to a comprehensive post-2012 agreement on climate change;
13. States its interest in cooperating closely with the Council and the Commission to find an effective agreement on the energy and climate change package soon, including Carbon Capture and Storage (CCS); notes that the EU needs to continue to demonstrate that economic growth and development can be reconciled with a low-carbon economy; reminds the Council of its abovementioned Presidency Conclusions;
14. Expresses its strong concern that a time has come in which the margins that are available are more and more frequently due to ‘creative budgeting’ such as backloading existing multiannual programmes, excluding budgetary requirements that are already well known and foreseeable and other similar manoeuvres; considers such practices to be in breach of the principle of sound budgeting and requests once more a PDB that is an honest reflection of the budgetary needs to come in the following year; invites the Commission and the Council to cooperate with a view to taking the necessary decisions to reach a satisfactory level of appropriations for the 2009 budget;
15. Stresses the importance of clarity, consistency and transparency in the presentation of the EU budget, which is an absolute necessity also with regard to the need to communicate to European citizens how EU money is spent; is concerned that differentiating between operational and administrative expenditure of the Commission has become increasingly difficult and that an already substantial amount of expenditure of an administrative nature, that should realistically be financed under heading 5, is financed from operational allocations;
16. Deplores the fact that, at the moment, there is no clear indication of the exact changes made in a financial programming document newly presented compared to the previous one, nor of whether, or how, increases in a particular year are being compensated for or how back- and front-loadings are taking place; considers this not in line with the provisions of Point 46 of the IIA and calls on the Commission to fulfil its obligations in this respect;
17. Stresses that it is of particular importance to follow up the effects of front- and back-loading of multiannual programmes across the budget in order to ensure a coherent programming of commitments over the duration of the MFF respecting the priorities of Parliament as expressed in the IIA;
18. Is surprised at the extremely low level of payment appropriations (EUR 116 736 million) proposed by the Commission in its PDB; points out that commitment appropriations adopted under the 2007 and 2008 budgets totalled EUR 126 500 million and EUR 129 100 million respectively;
19. Requests the Commission to continue its screening exercise started in 2007 and to set out clearly further information regarding human resources policy, application of redeployment strategy and the degree of externalisation of tasks for 2009; asks for a follow-up report by 30 April 2009 including the conclusions the Commission will draw with regard to their internal organisation; takes note of the Commission's 2008 follow-up report on ‘Planning and optimising Commission human resources to serve EU priorities’ whereby the Commission confirms its commitment not to request any new posts up to 2013, beyond the last tranche of enlargement-related posts in 2009; 3.12.2009 EN Official Journal of the European Union C 294 E/113
Tuesday 8 July 2008
20. Notes a considerable increase in the number of OLAF external investigations in the external aid sector, and calls therefore on the Commission to ensure that OLAF has the necessary resources at its disposal; calls on the Council to improve the quality of cooperation between the Member States and the Commission in the fight against EU fraud; calls on the Council to ensure a proper follow-up of the anti- fraud investigations by the Member States, including the recovery procedure;
On sub-heading 1a 21. Notes that PDB commitments for Competitiveness for Growth and Employment equal EUR 11 690 million, leaving a margin of EUR 82 million; this represents an increase of 5,5 % compared to 2008; notes that payments also increase by 5,3 % to a total of EUR 10 285,2 million;
22. Welcomes the Commission's intention to undertake key actions in the field of job creation and support for innovation, small and medium-sized enterprises (SMEs) and research; emphasises that present initiatives in this area, such as the Competitiveness and Innovation Framework Programme (CIP) and other initiatives concerning SMEs, must be properly implemented and monitored;
23. Welcomes the PDB priority set out by the Commission to promote research into clean and efficient energy and intends to make sure that the necessary resources are provided (besides the Seventh Framework Programme) as energy efficiency is a key strategy for tackling the problem of climate change;
24. Stresses the importance of providing the necessary budgetary resources for all measures facilitating the promotion and introduction of programmes of education in the media and new technologies;
25. Deplores the limited margin available in sub-heading 1a, which suggests that it will be impossible to fund new priorities by redeployment without severely undermining important existing programmes, and therefore recommends additional funding if new priorities are to be set;
26. Believes that, given the limited margin available in heading 1a, proper implementation and evaluation of ongoing pilot projects and preparatory actions should be the priority, but that the introduction of new pilot projects and preparatory actions has of course to remain possible;
27. Considers the planned Small Business Act an important strategy to support SMEs; is eagerly awaiting precise proposals for funding this new strategic tool; urges the Commission and the Member States to make enhanced use for this purpose also of the resources available through the Structural Funds in this context; notes that, since SMEs are particularly hard hit by late payments, the European Union has to avoid late payments by finding an efficient and transparent monitoring scheme to ensure that payments are effected within a specified period;
On sub-heading 1b 28. Notes that PDB commitments for Cohesion for Growth and Employment increase by 2,5 % to a total of EUR 48 413,9 million, leaving a margin of EUR 14 million only in the technical assistance envelope; takes note that the overall increase of 2,5 % is due to the substantial increase in the Cohesion Fund (+14 % compared to 2008) while the appropriations for the Structural Funds remain at the same level;
29. Deplores the sharp decrease in payments which, compared to 2008, fall by 13,9 % to EUR 34 914,1 million; is not convinced, in particular, of the reasons for the downward revision of payment level forecasts, viz. –30 % in ERDF convergence, –13 % in ERDF regional competitiveness and employment, –85 % in ERDF territorial cooperation and –50 % in the Cohesion Fund for the new programmes 2007-2013;
30. Is of the opinion that the Commission should indicate if this sharp decrease is a direct, or indirect, result of the new Action Plan to strengthen supervision and shared management for structural actions, especially given that it could concern a lack of first level controls in the Member States;
31. Intends to make sure that the necessary resources for cohesion policies will remain guaranteed in order to be able to deal with current and future challenges to the solidarity principle within the European Union; C 294 E/114 EN Official Journal of the European Union 3.12.2009
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On heading 2 32. Notes that PDB commitments for the Preservation and Management of Natural Resources are set at EUR 57 525,7 million, which is an increase of 3,5 % compared to 2008, leaving a margin of EUR 2 113,3 million; payments rise by 3,0 % to EUR 54 834,9 million; the part of heading 2 foreseen for market related expenditure and direct aids is EUR 42 860,3 million in commitments and EUR 42 814,2 million in payments;
33. Underlines that only 0,5 % of appropriations under heading 2, notwithstanding the environmental measures under Rural Development programming and the environmental standards underpinning the cross- compliance system for direct payments, are used for environmental priorities, while the vast majority of funds are allocated to direct aids and market related expenditure;
34. Welcomes the increase of EUR 20,9 million for LIFE+, but notes with some regret that only part of this increase goes to intensified activities in the area of climate change; considers that the horizontal budgetary priority of combating climate change is not properly reflected in these figures;
35. Recalls that the primary goal of the CAP is to guarantee market stabilisation, supply security and reasonable prices for consumers and therefore calls on the EU to foresee for the budget 2009 the necessary means to face the new needs arising from the current food crisis, especially an improvement in access to food for the most deprived people who are suffering the most from this crisis;
36. Welcomes the general downward trend in export refunds for agricultural products as a result of favourable market conditions and the savings which this implies;
37. Notes that PDB commitments for rural development remain nearly stable with EUR 13 401 million (including modulation) in commitments and EUR 10 926 million in payment appropriations, that is a decrease of 4 % compared to 2008;
38. Considers these figures as indicative elements in the framework of the ‘Health Check of the CAP’ presented by the Commission on 20 May 2008;
39. Points to the great difficulties regarding the implementation of the European Agricultural Fund for Rural Development (EAFRD); regrets that EUR 2 830 million of appropriations remained unspent in 2007, that EUR 1 361 million were carried over to the year 2008 and EUR 1 469 million were reprogrammed to the years 2008-2013 under Point 48 of the IIA; voices its concern with regard to the reprogramming of such considerable amounts, which will lead to a significant delay in funds being made available in the rural regions;
On sub-heading 3a 40. Notes that PDB commitments for Freedom, Security and Justice increase by 15 % to EUR 839,1 million, resulting in a margin of EUR 32,9 million; payments increase by 11,7 % to EUR 596,7 million;
41. Points out that this remarkable increase compared to 2008 is mainly due to a substantial increase in the chapters ‘Solidarity — External borders, visa policy and free movement of people’ (+EUR 44,4 million or +15,6 %), ‘Migration flows — Common immigration and asylum policies’ (+EUR 43,3 million or +18,9 %) and ‘Security and safeguarding liberties’ (+EUR 20,8 million or +27,1 %);
42. Takes note of the increase of 36,3 % in commitment appropriations in the specific programme ‘Prevention of and fight against crime’ and will examine the reasons for it;
43. Is concerned about the poor funding for the activity ‘Fundamental rights and justice’ which is only increased by 0,2 % in commitments and actually decreased by 10 % in payments compared to the budget 2008; 3.12.2009 EN Official Journal of the European Union C 294 E/115
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44. Points to the fact that the PDB maintains the increase of the appropriations voted in 2008 for the Agency for the Management of Operational Cooperation at the External Borders (Frontex), but notes with some concern the rebalancing of the subsidy by shifting EUR 5,7 million from operational to administrative expenditure; calls for an increase in appropriations for 2009 for Frontex to enable it to sustain the commitment to permanent and uninterrupted missions, notably at the southern borders of the Union (Hera, Nautilus and Poseidon);
45. Stresses that a European pact on migration policy should include issues related to tackling illegal immigration, managing legal immigration, integration of third country nationals and strengthening border protection, taking fully into account the principle of solidarity and the highest protection of fundamental rights;
On sub-heading 3b 46. Notes that PDB commitments for Citizenship total EUR 628,7 million, which is an increase of 1,0 % if the 2008 appropriations are considered net of the Solidarity Fund appropriations and the Transition Facility for Bulgaria and Romania; the margin left is EUR 22 million, payments increase by 0,7 % to EUR 669 million;
47. Regrets that the small margin of EUR 22 million left under this sub-heading leaves very limited room for manoeuvre for pilot projects and preparatory actions;
48. Draws attention to the need to increase the efficiency and improve the coordination of EU civil protection interventions, inter alia by developing common civil protection methodologies among the Member States, developing early warning and prevention systems, and upgrading the facility to transport civil protection assistance, in order to be better prepared to protect EU citizens;
49. Deplores the fact that the increase proposed by the Commission under this sub-heading, covering vital policies with a direct impact on the everyday life of European citizens, is significantly lower than the average increase of commitment appropriations of 3,1 %; regrets, in particular, that especially those activities important for a citizens’ Europe have received the smallest increase, or even suffered a decrease, compared to 2008;
50. Expresses its concern about the reductions proposed by the Commission for a number of budgetary lines under which communication activities are financed, particularly in the context of the tasks and new challenges in this area to be faced in 2009, such as the European elections or the possible entry into force of the Lisbon Treaty;
51. Considers that the core business of communication and information policy is to inform EU citizens on the actions and programmes realised by the EU and the improvements generated over the last years;
52. Recalls that all institutions have the right to implement communication policy as part of their institutional autonomy, as established in Article 49 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities Regulation ( 1) (Financial Regulation), within the limits of a common framework and with a certain degree of harmonisation in presentation that should allow for the development of a recognisable ‘EU trade mark’ to be used in all communication measures;
53. Recognises the need for coordination of the different communication policies implemented by the institutions within the Interinstitutional Group on Information and Communication; recalls that communi cation has long been an important priority for Parliament; considers that Parliament's key role in this process is vital and guarantees the continuity and efficiency of the policy, in particular in view of the coming European elections; points out in this context that information provided to citizens concerning their rights stemming from the application of EU law should be enhanced;
( 1 ) OJ L 248, 16.9.2002, p. 1. Regulation as last amended by Regulation (EC) No 1525/2007 (OJ L 343, 27.12.2007, p. 9). C 294 E/116 EN Official Journal of the European Union 3.12.2009
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On heading 4 54. Notes that commitments for the EU as a Global Player increase by 1,8 % to EUR 7 440,4 million with a margin of EUR 243,6 million available; payments decrease by 6,6 % to EUR 7 579,5 million;
55. Observes that this increase of 1,8 % is below the average overall increase of 3,1 % for the general budget of the EU; considers this a very ominous sign given that heading 4 is traditionally one of the most challenging areas in the Union's budget;
56. Is deeply concerned by the under-financing of heading 4 and strongly condemns the vague budgeting approach chosen by the Commission which does not take at all into account the realistic needs to be expected in this area; notes that, in consequence, the current margin of EUR 243,6 million seems to be a rather arbitrary figure; believes that this problem can only be addressed through a comprehensive revision of the MFF leading to increases in the heading 4 ceiling for the period 2009-2013;
57. Points out that, prior to the PDB presentation, Parliament had requested in its abovementioned resolution of 24 April 2008 a realistic picture of all budgetary needs, especially in heading 4 of the MFF; does not consider the PDB, in this heading, to follow the principle of sound financial management;
58. Notes, therefore, with concern that the Commission has already stated, at this early stage of the budgetary procedure, that appropriations for Kosovo, the Middle East, food aid and macro-financial assistance will clearly not be sufficient to fulfil existing EU commitments in the world, let alone expected supplementary needs: the PDB proposes, for example, EUR 161 million in commitments and EUR 100 million in payments for assistance to Palestine and the Peace process, although amounts voted for the 2008 Budget were EUR 300 million and EUR 200 million respectively, and after several transfers, payment appropriations have, to date, shot up to EUR 350 million; regarding Kosovo, appropriations for the EULEX mission drop by 15,7 % under the Common Foreign and Security Policy (CFSP); considers this unacceptable and calls for a new approach to expenditure for Palestine and Kosovo; believes that, in view of the decision to vastly increase the original number of experts working in the European Union Police Mission (EUPOL) to Afghanistan, financial shortfalls can already be foreseen at this stage;
59. Reaffirms its support for the implementation of a deepened and differentiated European Neigh bourhood Policy (ENP); underlines the need to provide the European Neighbourhood and Partnership Instrument (ENPI) with an adequate financial envelope reflecting the EU's commitment vis-à-vis its eastern and southern European neighbours; notes the modest increase in appropriations envisaged for 2009, and stresses that the recent initiative ‘Barcelona Process: Union for the Mediterranean’ must neither hinder the efforts to establish a balance between the commitment appropriations for the eastern and southern European neighbours nor in any case increase the budgetary tensions within the ENPI;
60. Deplores the fact that neither budgetary solutions nor even indications for such solutions have been presented for the financing of these extra needs; calls urgently once again for clarification as to the total needs in heading 4, including the CFSP chapter;
61. Repeats its conviction that neither Flexibility Instrument nor Emergency Aid Reserve (EUR 244 million) must be diverted or misused to finance long-planned policies and activities of the EU, and is strongly determined, in the course of the budgetary procedure, to defend this line;
62. Points out with concern the growing world food crisis and the effects of climate change and underlines the need for the EU to be able to meet its commitments in respect of the supply of food aid and responding to disasters in developing countries; notes with real worry that, in the PDB 2009, food aid is only allocated an increase of EUR 6,8 million compared to 2008 (+3 %) and that, already by the end of April 2008, the Commission is requesting a transfer of EUR 60 million to cover extra costs of food aid in 2008 (increase of 26,88 % in commitment appropriations); calls for additional resources to be provided for this purpose in 2009 by all budgetary means available; 3.12.2009 EN Official Journal of the European Union C 294 E/117
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63. Welcomes the increase in appropriations envisaged for the Western Balkan countries under the institution-building component of the Instrument for Pre-Accession (IPA), and in particular the Commission's intention to step up the provision of additional scholarships and to increase funding for civil society dialogue; asks the Commission to support the Social Agenda for the Balkans;
64. Stresses that new Aid for Trade money should be additional to existing development aid and that new Aid for Trade pledges should not lead to the shifting of resources already earmarked for other development initiatives; reiterates the request made to the Commission to provide information on the origin of the EUR 1 000 million pledged;
65. Welcomes the Commission's initiatives to launch a Global Climate Change Alliance and a Global Energy Efficiency and Renewable Energy Fund as important steps to support developing countries in adapting to and mitigating climate change; stresses however that funds allocated so far are inadequate; calls for an increase in immediate funding for these initiatives in the 2009 budget, additional to planned development commitments; emphasises, furthermore, the importance of strengthening these initiatives by securing additional long-term funds;
66. Takes note that the Guarantee Fund for loans is included in the PDB 2009 with an amount of EUR 92,46 million as opposed to the original financial programming which foresaw EUR 200 million for its provisioning; points out that an important part of the margin available in PDB 2009, i.e. EUR 107,54 million of EUR 243,6 million, is artificial insofar as it is the result of this manoeuvre; underlines with strong concern that it is very likely that these ‘savings’ in the budgeting of the Guarantee Fund in 2009 will need to be compensated by higher expenditure in the years to come, leaving even smaller margins in heading 4 than those programmed now;
67. Points out that, since the institutional set-up concerning the High Representative, the President of the European Council and the European External Action Service is not yet determined, the necessary budgetary appropriations should be made available gradually as the scope and the role of the new organisational structures become clearer; underlines that neither the institutional changes nor the new CSDP provisions should further strain the current level of commitment appropriations under heading 4;
68. Emphasises the political importance of pilot projects and preparatory actions adopted by the budgetary authority under heading 4; calls for a timely and pro-active implementation thereof by the Commission with the full use of allocated commitments;
On heading 5 69. Notes that the overall Administrative Expenditure proposed increases by 5 % compared to 2008 and now amounts to a total of EUR 7 647,9 million, compared to EUR 7 281,5 million for 2008, and that only a minor margin of EUR 129,1 million (corresponding to about 1,7 % of the volume expenditure) is left under the ceiling of the financial framework;
70. While welcoming the fact that the new posts requested by the Commission only concern the previously announced final tranche of 250 for ‘EU-2’, notes that the proposed increase of administrative expenditure is still higher than the average for the whole budget; recognises that this may be largely linked to indexed salary and pension costs, and to some extent buildings policy; points out that further modifi cations may become necessary during the financial year 2009 if the Lisbon Treaty enters into force; resolves, in that respect, to scrutinise administrative expenditure in an interinstitutional context in order to investigate the needs of the institutions for 2009 and beyond;
71. Considers, despite the increase in information received, and the Commission's preliminary conclusions that executive agencies enhance the quality of EU programmes, that various financial/adminis trative consequences on heading 5 still require further clarification; is for example astonished that the future creation of the equivalent of 947 new posts in the two research agencies (as stated in the screening follow- up) will only lead to the freeing up of 117 posts within the Commission departments over the same period; C 294 E/118 EN Official Journal of the European Union 3.12.2009
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72. Is concerned about the fact that, in general, the Commission's outsourcing tendencies, together with the latest changes in the Staff Regulations, have led to a situation where an increasing number of staff employed by the EU is neither visible in the institutions’ establishment plans as adopted by the budgetary authority nor paid under heading 5 of the MFF; deeply regrets this lack of transparency which concerns also the employment of national experts; calls for a public and comprehensive discussion amongst all stake holders on the future of European governance;
73. Welcomes the follow-up of the 2007 staff screening report recently received as a response to its budgetary amendments in the 2008 budget; intends to analyse this document thoroughly with a view to drawing budgetary conclusions for 2009;
74. Asks the Commission which measures are being taken to reach the goal of reducing administrative burdens in the EU by 25 % by 2012, and to check if the principle of the one-stop-shop is achievable in the future to reduce bureaucracy;
75. Intends to examine the administrative appropriations and staffing requests for the other institutions with a view to increasing efficiency gains, including staff re-deployment according to identified priorities whenever possible; notes that the proposed average increase for the other institutions amounts to 4,8 %, rising from EUR 2 673,8 million to EUR 2 803,2 million, only just below the rate of increase proposed for the Commission;
On heading 6 76. Notes that, in 2009, the last year of budgetary compensation to Bulgaria and Romania, commitments and payments are set at EUR 209,1 million, representing an increase of 1,2 % compared to 2008; this leaves a small margin of EUR 0,9 million;
On Pilot Projects and Preparatory Actions 77. Regrets that, as a general principle, the Commission's PDB does not include any commitments for pilot projects and preparatory actions, so that these will need to be financed from the margins of the relevant MFF headings; expresses its astonishment that there are a few exceptions to this general rule insofar as a small number of pilot projects and preparatory actions, in which the Commission seems to be interested, are already budgeted in the PDB with commitment appropriations;
78. Recalls the obligation for the Commission, according to Point 46(a) of the IIA, to provide, for annual actions, multiannual estimates and the margins left under the authorised ceilings;
79. Underlines that the IIA allows for a total amount for pilot projects of up to EUR 40 million in any budget year and for a total amount for preparatory actions of up to EUR 100 million out of which a maximum of EUR 50 million can be allocated to new preparatory actions;
80. Confirms its determination, as already stipulated in its abovementioned resolution of 24 April 2008, to use the full annual amounts provided for pilot projects and preparatory actions in the IIA if the number and volume of such proposed projects and actions should make this necessary, because it considers them an indispensable tool for Parliament to pave the way for new policies that are in the interest of European citizens;
81. Recalls that, for the budgetary year 2008, Parliament adopted pilot projects and preparatory actions for an amount of EUR 107,32 million in commitment appropriations; sub-heading 1a accounted for projects and actions amounting to EUR 38 million, heading 2 for EUR 25,15 million, sub-heading 3a for EUR 3 million, sub-heading 3b for EUR 9,5 million and heading 4 for EUR 31,67 million; 3.12.2009 EN Official Journal of the European Union C 294 E/119
Tuesday 8 July 2008
82. Underlines that, should Parliament decide in favour of a similar level of financing for pilot projects and preparatory actions in 2009, nearly half the available margins in headings 1a and 3b would already be used up, although the 2008 level of expenditure on pilot projects and preparatory actions did not even reach the maximum amounts granted by the IIA;
83. States its willingness to submit to the Commission before the parliamentary summer recess a first provisional list of its intentions as regards pilot projects and preparatory actions for the 2009 budget procedure, in accordance with Annex II, Part D, of the IIA in order to facilitate the establishment of a balanced and coherent final package; points out that this list does not preclude the presentation of any other proposals or amendments on pilot projects and preparatory actions by individual MEPs, specialised committees and political groups at its First Reading in the autumn; insists that, for this exercise, all headings and sub-headings of the budget must have sufficient margins available;
84. Wishes to explore with the Commission and the Council how to give effect to Parliament's call for a European envoy on women's rights;
On agencies 85. Notes that PDB allocations for the decentralised agencies increase by 1,76 % to EUR 563,9 million in commitments and decrease by EUR 6 million in payments (–1 %);
86. Points out that, despite this overall minimal increase in commitments if all agencies are taken together, the sub-group of heading 1a agencies have been cut by 3,29 % or EUR 8,9 million compared to budget 2008, in line with the decision taken by the budgetary authority in the November 2008 conciliation to implement a linear cut of EUR 50 million over the period 2009-2013 in order to finance Galileo;
87. Takes note of the fact that this cut for agencies in heading 1a has not been ‘linear’ as formulated in the conciliation conclusions; intends to assess in detail the degree and distribution of the budgetary decreases; reiterates that it is up to the budgetary authority to decide upon these proposals by the Commission;
88. Will put particular emphasis on the budget implementation of the agencies and will closely scrutinise possible surpluses in order to make sure that assigned revenues are taken into account in the establishment of the agencies’ budgets for 2009;
89. Deplores the fact that the Commission has still not presented to the budgetary authority the details of how it proposes to finance the two new agencies currently under discussion, one of which is already included in the PDB for 2009 with a ‘p.m.’ entry, and urges the Commission to set out clearly further information on this issue as soon as possible; has come to the conclusion that, in the situation of current margins, for the financing of new bodies, which fulfil in part administrative tasks, all possibilities granted by the IIA should be explored; recalls that prior agreement of the budgetary authority on the financing of any new agency is required in line with Point 47 of the IIA;
90. Underlines once more that the financing levels of current and future decentralised agencies will directly affect the margins available under the headings of the MFF; notes that the IIA obliges the Commission to assess the budgetary implications for the expenditure heading concerned when drawing up a proposal for the creation of a new decentralised agency; will seek to ensure that the functioning of decentralised agencies brings added value and furthers the interests of EU citizens;
91. Welcomes the Commission's intention to stimulate an interinstitutional dialogue on the role of all bodies defined under Article 185 of the Financial Regulation and their place in European governance; reiterates the importance of securing on a systematic basis at interinstitutional level the application of the procedure laid down in Point 47 of the IIA; C 294 E/120 EN Official Journal of the European Union 3.12.2009
Tuesday 8 July 2008
On executive agencies and other outsourcing tendencies 92. Notes that any further expansion of executive agencies and other similar ad-hoc bodies will be financed from the relevant programme envelope; expresses its concern, therefore, that all growth in executive agencies and other bodies will reduce the operational funds available within programme envelopes and will move administrative tasks from heading 5 of the MFF to be financed under the oper ational headings; 93. Is concerned that the creation of executive agencies and other ad hoc bodies may lead to an intransparent growth in the number of EU officials and contract staff, especially if posts in the relevant Commission Directorate-General are not reduced and/or redeployed accordingly; urges observance of the Working Arrangements for the Setting-up of Executive Agencies (revised Code of Conduct), in particular as regards parliamentary scrutiny of financing and staffing of the agencies;
Conclusions and mandate for the Conciliation 94. Considers the following points to be of specific interest for the budget conciliation due to take place in July 2008: — adequate level of payments; — adherence to the principle of sound financial budgeting, in particular as regards a realistic picture of needs in heading 4; — commitment by the Commission to submit, where the EU Solidarity Fund and the European Global isation Adjustment Fund are concerned, amending budgets that have the mobilisation of these funds as their sole purpose in order to avoid any delay in the delivery of financial aid; — adequate response to food aid and food security requirements; — the provision by the Council of quantified information about the financial implications of its above mentioned Presidency Conclusions in accordance with the provisions laid down by the Financial Regu lation, in particular Article 28 thereof; is ready to enter into negotiations, including by having recourse to all the means provided by the IIA; — state of play regarding the implementation of Point 44 of the IIA and of point 5(N) of the Action Plan towards an Integrated Internal Control Framework (COM(2006)0009); — sufficient resources for a citizens’ Europe; — provisional intentions of the budgetary authority with regard to pilot projects and preparatory actions; — clarity of budget presentation, especially concerning administrative expenditure and human resources including outsourcing of tasks; — adequate budgetary provision to enable a response to the EU priorities ‘competitiveness for growth and employment’, ‘combating climate change in line with the Bali Action Plan and promoting a sustainable Europe’ and ‘making a reality of the Common Immigration Policy’; — commitment from the Council to improve EU information strategy in a professional way and in close cooperation with Parliament and the Commission; 95. Strongly deplores the custom of the Council to make across-the-board cuts at its first reading of the EU budget without any precise reasons being provided; calls on the Council, when adopting its Draft Budget, to examine each element of the budget in turn using the criteria of efficiency, economy and European added value; points out that establishing the EU budget is a fundamental political act which is more than a mere accounting exercise, and looks to the Council to make arrangements for genuine political dialogue with Parliament during this budgetary procedure; * * *
96. Instructs its President to forward this resolution to the Council and the Commission. 3.12.2009 EN Official Journal of the European Union C 294 E/121
Wednesday 9 July 2008
Safety on the Community's railways ***II P6_TA(2008)0340 European Parliament legislative resolution of 9 July 2008 on the Council common position for adopting a directive of the European Parliament and of the Council amending Directive 2004/49/EC on safety on the Community's railways (Railway Safety Directive) (16133/3/2007 — C6-0129/2008 — 2006/0272(COD)) (2009/C 294 E/41) (Codecision procedure: second reading)
The European Parliament,
— having regard to the Council common position (16133/3/2007 — C6-0129/2008) ( 1 ),
— having regard to its position at first reading ( 2) on the Commission proposal to Parliament and the Council (COM(2006)0784),
— having regard to Article 251(2) of the EC Treaty,
— having regard to Rule 62 of its Rules of Procedure,
— having regard to the recommendation for second reading of the Committee on Transport and Tourism (A6-0223/2008),
1. Approves the common position as amended;
2. Instructs its President to forward its position to the Council and Commission.
( 1 ) OJ C 122 E, 20.5.2008, p. 10. ( 2 ) Texts adopted of 29.11.2007, P6_TA(2007)0557.
P6_TC2-COD(2006)0272 Position of the European parliament adopted at second reading on 9 July 2008 with a view to the adoption of Directive 2008/…/EC of the European Parliament and of the Council amending Directive 2004/49/EC on safety on the Community's railways (Railway Safety Directive)
(As an agreement was reached between Parliament and Council, Parliament's position at second reading corresponds to the final legislative act, Directive 2008/110/EC.) C 294 E/122 EN Official Journal of the European Union 3.12.2009
Wednesday 9 July 2008 Amendment of Regulation (EC) No 881/2004 establishing a European Railway Agency ***II P6_TA(2008)0341 European Parliament legislative resolution of 9 July 2008 on the Council common position for adopting a regulation of the European Parliament and of the Council amending Regulation (EC) No 881/2004 establishing a European Railway Agency (Agency Regulation) (16138/3/2007 — C6- 0131/2008 — 2006/0274(COD)) (2009/C 294 E/42) (Codecision procedure: second reading)
The European Parliament,
— having regard to the Council common position (16138/3/2007 — C6-0131/2008) ( 1 ),
— having regard to its position at first reading ( 2) on the Commission proposal to Parliament and the Council (COM(2006)0785),
— having regard to Article 251(2) of the EC Treaty,
— having regard to Rule 62 of its Rules of Procedure,
— having regard to the recommendation for second reading of the Committee on Transport and Tourism (A6-0210/2008),
1. Approves the common position as amended;
2. Instructs its President to forward its position to the Council and the Commission.
( 1 ) OJ C 93 E, 15.4.2008, p. 1. ( 2 ) Texts adopted of 29.11.2007, P6_TA(2007)0558.
P6_TC2-COD(2006)0274 Position of the European Parliament adopted at second reading on 9 July 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council amending Regulation (EC) No 881/2004 establishing a European Railway Agency (Agency Regulation)
(As an agreement was reached between Parliament and Council, Parliament's position at second reading corresponds to the final legislative act, Regulation (EC) No 1335/2008.) 3.12.2009 EN Official Journal of the European Union C 294 E/123
Wednesday 9 July 2008
Rules for the operation of air services in the Community (recast) ***II P6_TA(2008)0342 European Parliament legislative resolution of 9 July 2008 on the Council common position for adopting a regulation of the European Parliament and of the Council on common rules for the operation of air services in the Community (recast) (16160/4/2007 — C6-0176/2008 — 2006/0130(COD)) (2009/C 294 E/43) (Codecision procedure: second reading)
The European Parliament,
— having regard to the Council common position (16160/4/2007 — C6-0176/2008) ( 1 ),
— having regard to its position at first reading ( 2) on the Commission proposal to Parliament and the Council (COM(2006)0396),
— having regard to Article 251(2) of the EC Treaty,
— having regard to Rule 67 of its Rules of Procedure,
— having regard to the recommendation for second reading of the Committee on Transport and Tourism (A6-0264/2008),
1. Approves the common position;
2. Notes that the act is adopted in accordance with the common position;
3. Instructs its President to sign the act with the President of the Council pursuant to Article 254(1) of the EC Treaty;
4. Instructs its Secretary-General to sign the act, once it has been verified that all the procedures have been duly completed, and, in agreement with the Secretary-General of the Council, to have it published in the Official Journal of the European Union;
5. Instructs its President to forward its position to the Council and the Commission.
( 1 ) OJ C 129 E, 27.5.2008, p. 1. ( 2 ) Texts adopted of 11.7.2007, P6_TA(2007)0337. C 294 E/124 EN Official Journal of the European Union 3.12.2009
Wednesday 9 July 2008 Programme for the Modernisation of European Enterprise and Trade Statistics (MEETS) ***I P6_TA(2008)0343 European Parliament legislative resolution of 9 July 2008 on the proposal for a decision of the European Parliament and of the Council on a Programme for the Modernisation of European Enterprise and Trade Statistics (MEETS) (COM(2007)0433 — C6-0234/2007 — 2007/0156(COD)) (2009/C 294 E/44) (Codecision procedure: first reading)
The European Parliament,
— having regard to the Commission proposal to the European Parliament and the Council (COM(2007)0433),
— having regard to Article 251(2) and Article 285 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0234/2007),
— having regard to the Interinstitutional Agreement of 17 May 2006 between the European Parliament, the Council and the Commission on budgetary discipline and sound financial management ( 1),
— having regard to Rule 51 of its Rules of Procedure,
— having regard to the report of the Committee on Economic and Monetary Affairs and the opinion of the Committee on Budgets (A6-0240/2008),
1. Approves the Commission proposal as amended;
2. Considers that the financial envelope indicated in the legislative proposal must be compatible with the ceiling of subheading 1a of the 2007-2013 multiannual financial framework as revised by Decision 2008/371/EC ( 2) and points out that the annual amount will be decided as part of the annual budgetary procedure in accordance with point 37 of the Interinstitutional Agreement of 17 May 2006;
3. Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;
4. Instructs its President to forward its position to the Council and the Commission.
( 1 ) OJ C 139, 14.6.2006, p. 1. ( 2 ) OJ L 128, 16.5.2008, p. 8.
P6_TC1-COD(2007)0156 Position of the European Parliament adopted at first reading on 9 July 2008 with a view to the adoption of Decision No …/2008/EC of the European Parliament and of the Council on a Programme for the Modernisation of European Enterprise and Trade Statistics (MEETS)
(As an agreement was reached between Parliament and Council, Parliament's position at first reading corresponds to the final legislative act, Decision No 1297/2008/EC.) 3.12.2009 EN Official Journal of the European Union C 294 E/125
Wednesday 9 July 2008
Batteries and accumulators and their waste ***I P6_TA(2008)0344 European Parliament legislative resolution of 9 July 2008 on the proposal for a directive of the European Parliament and of the Council amending Directive 2006/66/EC of the European Parliament and of the Council on batteries and accumulators and waste batteries and accumulators as regards Article6(2) on placing batteries and accumulators on the market (COM(2008)0211 — C6-0165/2008 — 2008/0081(COD)) (2009/C 294 E/45) (Codecision procedure: first reading)
The European Parliament,
— having regard to the Commission proposal to the European Parliament and the Council (COM(2008)0211),
— having regard to Article 251(2) and Article 95(1) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0165/2008),
— having regard to Rule 51 of its Rules of Procedure,
— having regard to the report of the Committee on the Environment, Public Health and Food Safety (A6- 0244/2008),
1. Approves the Commission proposal as amended;
2. Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;
3. Instructs its President to forward its position to the Council and the Commission.
P6_TC1-COD(2008)0081 Position of the European Parliament adopted at first reading on 9 July 2008 with a view to the adoption of Directive 2008/…/EC of the European Parliament and of the Council amending Directive 2006/66/EC on batteries and accumulators and waste batteries and accumulators as regards placing batteries and accumulators on the market
(As an agreement was reached between Parliament and Council, Parliament's position at first reading corresponds to the final legislative act, Directive 2008/103/EC.) C 294 E/126 EN Official Journal of the European Union 3.12.2009
Wednesday 9 July 2008 Restrictions on the marketing and use of certain dangerous substances and prep arations ***I P6_TA(2008)0345 European Parliament legislative resolution of 9 July 2008 on the proposal for a decision of theEuropean Parliament and of the Council amending Council Directive 76/769/EEC as regards restrictions on the marketing and use of certain dangerous substances and preparations 2-(2- methoxyethoxy)ethanol,2-(2-butoxyethoxy)ethanol, methylenediphenyl diisocyanate, cyclohexane and ammonium nitrate (COM(2007)0559 — C6-0327/2007 — 2007/0200(COD)) (2009/C 294 E/46) (Codecision procedure: first reading)
The European Parliament,
— having regard to the Commission proposal to the European Parliament and the Council (COM(2007)0559),
— having regard to Articles 251(2) and 95 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0327/2007),
— having regard to Rule 51 of its Rules of Procedure,
— having regard to the report of the Committee on the Environment, Public Health and Food Safety (A6- 0135/2008),
1. Approves the Commission proposal as amended;
2. Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;
3. Instructs its President to forward its position to the Council and the Commission.
P6_TC1-COD(2007)0200 Position of the European Parliament adopted at first reading on 9 July 2008 with a view to the adoption of Decision No …/2008/EC of the European Parliament and of the Council amending Council Directive 76/769/EEC as regards restrictions on the marketing and use of certain dangerous substances and preparations 2-(2-methoxyethoxy)ethanol, 2-(2-butoxyethoxy)ethanol, methylenediphenyl diisocyanate, cyclohexane and ammonium nitrate
(As an agreement was reached between Parliament and Council, Parliament's position at first reading corresponds to the final legislative act, Decision No 1348/2008/EC.) 3.12.2009 EN Official Journal of the European Union C 294 E/127
Wednesday 9 July 2008
Conditions for access to the natural gas transmission networks ***I P6_TA(2008)0346 European Parliament legislative resolution of 9 July 2008 on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 1775/2005 on conditions for access to the natural gas transmission networks (COM(2007)0532 — C6-0319/2007 — 2007/0199(COD)) (2009/C 294 E/47) (Codecision procedure: first reading)
The European Parliament,
— having regard to the Commission proposal to the European Parliament and the Council (COM(2007)0532),
— having regard to Article 251(2) and Article 95 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0319/2007),
— having regard to Rule 51 of its Rules of Procedure,
— having regard to the report of the Committee on Industry, Research and Energy and the opinions of the Committee on Economic and Monetary Affairs and the Committee on the Internal Market and Consumer Protection (A6-0253/2008),
1. Approves the Commission proposal as amended;
2. Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;
3. Instructs its President to forward its position to the Council and the Commission.
P6_TC1-COD(2007)0199 Position of the European Parliament adopted at first reading on 9 July 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council amending Regulation (EC) No 1775/2005 on conditions for access to the natural gas transmission networks
THE EUROPEAN PARLIAMENT AND THE OUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,
Having regard to the proposal from the Commission ║,
Having regard to the opinion of the European Economic and Social Committee ( 1 ),
Having regard to the opinion of the Committee of the Regions ( 2),
Acting in accordance with the procedure laid down in Article 251 of the Treaty ( 3 ),
( 1 ) OJ C 211, 19.8.2008, p. 23. ( 2 ) OJ C 172, 5.7.2008, p. 55. ( 3 ) Position of the European Parliament of 9 July 2008. C 294 E/128 EN Official Journal of the European Union 3.12.2009
Wednesday 9 July 2008
Whereas:
(1) The internal market for gas, which has been progressively implemented since 1999, aims to deliver real choice for all consumers in the Community, be they citizens or businesses, new business opportunities and more cross-border trade in order to achieve efficiency gains, competitive prices, higher standards of service and access for as many people as possible, and to contribute to security of supply and sustainability.
(2) Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas ║ ( 1 ) and Regulation (EC) No 1775/2005 of the European Parliament and of the Council of 28 September 2005 on conditions for access to the natural gas transmission networks ( 2 ) have made significant contributions towards the creation of such an internal market for gas.
(3) ║ The right to sell gas in any Member State on equal terms, without discrimination or disadvantage cannot, however, currently be guaranteed to all companies in the Community. In particular, non-discrimi natory network access and an equally effective level of regulatory supervision in each Member State do not yet exist and isolated markets persist.
(4) A sufficient level of cross-border gas interconnection capacity should be achieved as a first step towards integrating markets and in order to complete the internal market for gas.
(5) The Communication of the Commission of 10 January 2007 entitled ‘An Energy Policy for Europe’ ║highlighted the importance of completing the internal market in natural gas and to create a level playing field for all gas undertakings in the Community. The Communications from the Commission of the same date on prospects for the internal gas and electricity market ║ and in relation to its inquiry pursuant to Article 17 of Regulation (EC) No 1/2003 into the European gas and electricity sectors ║ showed that the present rules and measures have not been sufficiently transposed in all Member States, with the result that the objective of a well-functioning internal energy market has not yet been satisfactorily achieved.
(6) Regulation (EC) No 1775/2005 needs to be adapted in line with these communications to improve the regulatory framework of the internal market for gas.
(7) In particular, the creation of physical connections between gas networks and increased cooperation and coordination among transmission system operators are required to ensure progressive compati bility of the technical and commercial codes for providing and managing effective and transparent access to the transmission networks across borders, ║ to ensure coordinated and sufficiently forward- looking planning and sound technical evolution of the transmission system in the Community, with due regard to the environment, and to promote energy efficiency and research and innovation, in particular as regards the penetration of energy from renewable sources and the dissemination of low carbon technology. Transmission system operators should operate their networks according to these compatible technical and market codes.
(8) In order to ensure an optimal management of the gas transmission network in the Community a European network of the transmission system operators should be established. Its tasks should be carried out in compliance with Community competition rules which remain applicable to the decisions of the European network of the transmission system operators. Its tasks should be well-defined and their working method should be such as to ensure efficiency, representativity and transparency. Given that more effective progress may be achieved through an approach at regional level, transmission system operators should set up regional structures within the overall cooperation structure, whilst ensuring that results at regional level are compatible with codes and investment plans at Community level. Member States should promote cooperation and monitor the effectiveness of the network at regional level.
( 1 ) OJ L 176, 15.7.2003, p. 57. ( 2 ) OJ L 289, 3.11.2005, p. 1. 3.12.2009 EN Official Journal of the European Union C 294 E/129
Wednesday 9 July 2008
▐
(9) To enhance competition through liquid wholesale gas markets, it is vital that gas can be traded independently of its location in the system. The only way to do this is to give network users the freedom to book entry and exit capacity independently, thereby creating gas transport through zones instead of along contractual paths. The preference for entry-exit systems to facilitate the development of competition was already expressed by most stakeholders at the 6th Madrid Forum.
(10) There is substantial contractual congestion in the gas networks. The congestion management and capacity allocation principles for new or newly negotiated contracts are therefore based on the freeing-up of unused capacity by enabling network users to sublet or re-sell their contracted capacities and the obligation of transmission system operators to offer unused capacity to the market, at least on a day-ahead and interruptible basis. Given the large proportion of existing contracts and the need to create a truly level playing field between users of new and existing capacity these principles need to be applied to all contracted capacity, including existing contracts.
(11) Market monitoring undertaken over recent years by the national regulatory authorities and by the Commission has shown that current transparency requirements and rules on access to infrastructure are not sufficient to secure a genuine, well-functioning, efficient and open internal market.
(12) Equal access to information on the physical status of the system is necessary to enable all market participants to assess the overall demand and supply situation and identify the reasons for movements in the wholesale price. This includes more precise information on supply and demand, network capacity, flows and maintenance, balancing and availability and usage of storage. The importance of this information for the functioning of the internal market for gas requires the lifting of the limitations to publication for confidentiality reasons.
(13) To enhance trust in the market, its participants need to be sure that abusive behaviour can be sanctioned effectively. The competent authorities should be given the competence effectively to investigate allegations of market abuse. To this end, access by the competent authorities to data that provides information on operational decisions made by supply undertakings is necessary. In the gas market, all such decisions are communicated to the system operators in the form of capacity reservations, nominations and realised flows. System operators should keep information in relation thereto available to and easily accessible by the competent authorities for a fixed period of time. The competent authorities should, furthermore, regularly monitor the compliance of the system operators with the rules.
(14) Competition for household consumers requires that suppliers not be blocked when they want to enter new retail markets. The rules and responsibilities governing the supply chain therefore need to be known to all market participants, and ║ need to be harmonised with a view to enhancing Community market integration. The competent authorities should regularly monitor the compliance of market participants with the rules.
(15) Access to gas storage facilities and LNG facilities is insufficient in some Member States, and the implementation of the existing rules therefore needs to be radically improved. Monitoring by the European Regulators’ Group for electricity and gas (ERGEG) has shown that the storage system operators’ voluntary guidelines for good practices for third-party access, which were agreed by all stakeholders at the Madrid Forum, are, in some cases, being inadequately applied and therefore need to be given binding force. Even though the voluntary guidelines have been almost completely transposed throughout the European Union, lending them binding character would increase operators’ confidence in non- discriminatory access to storage.
(16) Regulation (EC) No 1775/2005 provides that certain measures are to be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission ( 1).
( 1 ) OJ L 184, 17.7.1999, p. 23. ║. C 294 E/130 EN Official Journal of the European Union 3.12.2009
Wednesday 9 July 2008
(17) Decision 1999/468/EC has been amended by Council Decision 2006/512/EC ( 1 ), which introduced a regulatory procedure with scrutiny for measures of general scope designed to amend non-essential elements of a basic instrument adopted in accordance with the procedure referred to in Article 251 of the Treaty, inter alia by deleting some of those elements or by supplementing the instrument by the addition of new non-essential elements.
(18) In accordance with the ║ statement by the European Parliament, the Council and the Commission ( 2 ) concerning Decision 2006/512/EC, for the regulatory procedure with scrutiny to be applicable to instruments adopted in accordance with the procedure referred to in Article 251 of the Treaty which are already in force, those instruments must be adjusted in accordance with the applicable procedures.
(19) The Commission should be empowered to adopt the measures necessary for the implementation of Regulation (EC) No 1775/2005 in order to establish or adopt the guidelines necessary for providing the minimum degree of harmonisation required to achieve the aim of this Regulation. Since those measures are of general scope and are designed to amend non-essential elements of Regulation (EC) No 1775/2005, inter alia by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.
(20) Regulation (EC) No 1775/2005 should therefore be amended accordingly,
HAVE ADOPTED THIS REGULATION:
Article 1 Regulation (EC) No 1775/2005 is amended as follows:
(1) Article 1 shall be replaced by the following:
‘Article 1 Subject matter and scope This Regulation ║:
(a) establishes non-discriminatory rules for access conditions to natural gas transmission systems taking into account the specificities of national and regional markets with a view to ensuring the proper functioning of the internal market for gas;
(b) establishes non-discriminatory rules for access conditions to LNG facilities and storage facilities;
(c) facilitates the emergence of a well-functioning and transparent▐ wholesale market with a high level of security of gas supply and provides mechanisms to harmonise the network access rules for cross-border exchange in gas.
Without prejudice to Article 6a(4), this Regulation, shall only apply to storage facilities falling under Article 19(3) or (4) of Directive 2003/55/EC.
The matters referred to in the first subparagraph shall include the establishment of harmonised principles for tariffs, or the methodologies underlying their calculation, for access to the network, the estab lishment of third-party access services and harmonised principles for capacity allocation and congestion management, the determination of transparency requirements, balancing rules and imbalance charges, and the facilitation of capacity trading.’
( 1 ) OJ L 200, 22.7.2006, p. 11. ( 2 ) OJ C 255, 21.10.2006, p. 1. 3.12.2009 EN Official Journal of the European Union C 294 E/131
Wednesday 9 July 2008
(2) Article 2 shall be amended as follows:
(a) ║ paragraph 1 shall be amended as follows:
(i) point 1 shall be replaced by the following:
‘1. “transmission” means the transport of natural gas through a transit pipeline or through a pipeline network, which mainly contains high pressure pipelines, excluding transport through an upstream pipeline or pipeline network or pipelines or pipeline networks connecting storage to local distribution and generally excluding transport through pipelines primarily used in the context of local distribution of natural gas;’
(ii) the following points shall be added:
‘24. “LNG-facility capacity” means capacity at an LNG-terminal for the liquefaction of natural gas or the importation, offloading, ancillary services, temporary storage and re-gasification of LNG,
25. “space” means the volume of gas which a user of a storage facility is entitled to use for the storage of gas;
26. “deliverability” means the rate at which the storage user is entitled to withdraw gas from the storage facility;
27. “injectability” means the rate at which the storage user is entitled to inject gas into the storage facility;
28. “storage capacity” means any combination of space, injectability and deliverability
29. “Agency ” means the Agency for the Cooperation of Energy Regulators established by Regulation (EC) No …/2008 of the European Parliament and of the Council of … [on establishment of an Agency for the Cooperation of Energy Regulators] (*) ______(*) OJ L …’
(b) paragraph 2 shall be replaced by the following:
‘2. Without prejudice to the definitions in paragraph 1 of this Article the definitions contained in Article 2 of Directive 2003/55/EC, which are relevant for the application of this Regulation, shall also apply with the exception of the definition of transmission in point 3 of that Article 2.
The definitions in points 3 to 23 in paragraph 1 of this Article in relation to transmission shall apply by analogy in relation to storage and LNG facilities.’
(3) The following articles ║ shall be inserted after Article 2:
‘Article 2a European Network of Transmission System Operators for Gas All transmission system operators shall cooperate at Community level through a European network of transmission system operators for gas in order to ensure the optimal management, coordinated operation and sound technical evolution of the European gas transmission network and to promote the completion of the internal market for gas, cross-border trade and the functioning of the energy markets.
Article 2b Establishment of the European Network for Transmission System Operators for Gas 1. By […] ║ the transmission system operators for gas shall submit to the Commission and to the Agency ║ draft ║ statutes, a list of future members and draft rules of procedure▐ with a view to establishing a European network of transmission system operators for gas ║. C 294 E/132 EN Official Journal of the European Union 3.12.2009
Wednesday 9 July 2008
2. Within two months from receipt, the Agency, after formally consulting the organisations representing all stakeholders, in particular the system users and customers, shall provide an opinion to the Commission on the draft statutes, list of members and draft rules of procedure.
3. The Commission shall deliver an opinion on the draft statutes, list of members and draft rules of procedure, taking into account the opinion of the Agency provided for in paragraph 2 and within three months of receipt thereof.
4. Within three months of receipt of the Commission's opinion, the transmission system operators shall establish the European Network for Transmission System Operators for Gas, adopt its statutes and rules of procedure and publish them.
Article 2c Tasks of the European Network of Transmission System Operators for Gas 1. In order to achieve the objectives set out in Article 2a, the European Network of Transmission System Operators for Gas shall agree and submit to the Agency for approval following the procedure provided for in Article 2d in conjunction with Article 6(3) of Regulation (EC) No …/2008 [estab lishing the Agency for the Cooperation of Energy Regulators], the following:
(a) draft network codes in the areas mentioned in paragraph 3, elaborated in cooperation with market participants and network users;
(b) common network operation tools and research plans;
(c) a 10-year investment plan including a supply and demand adequacy report, every two years;
(d) measures to ensure the real-time coordination of grid operation in normal and emergency conditions;
(e) guidelines on the coordination of technical cooperation between Community and third-country transmission system operators;
(f) an annual work programme based on the priorities set by the Agency;
(g) an annual report; and
(h) annual summer and winter supply outlooks.
2. The annual work programme referred to in paragraph 1(f) shall contain a list and description of the network codes, a plan on coordination of operation of the network and research and development activities, to be drawn up in that year and an indicative calendar.
3. The detailed network codes shall cover the following areas, according to the priorities defined in the annual work programme:
(a) security and reliability rules including interoperability rules and operational procedures for emergency situations;
(b) grid connection and access rules;
▐
(c) cross-border capacity allocation and congestion management rules; 3.12.2009 EN Official Journal of the European Union C 294 E/133
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▐
(d) network-related transparency rules;
(e) balancing and settlement rules▐;
▐
(f) energy efficiency regarding gas networks.
4. The Agency shall monitor the implementation of the network codes by the European Network of Transmission System Operators for Gas.
5. The European Network of Transmission System Operators for Gas shall publish a Community- wide 10-year network investment plan every two years following its approval by the Agency. The investment plan shall include the modelling of the integrated network, taking into account storage and LNG facilities, scenario development, a supply and demand adequacy report and an assessment of the resilience of the system. The investment plan shall, in particular, build on national investment plans taking into account Community and regional aspects of network planning, including the Guidelines for Trans-European energy networks in accordance with Decision No 1364/2006/EC of the European Parliament and of the Council (*) . The investment plan shall identify investment gaps, notably with respect to cross-border capacities, and shall include investments in interconnection, in particular, and as a priority, connections between energy islands and gas networks in the Community and investments in other infrastructure necessary for effective trading, competition and security of supply. A review of barriers to the increase of cross-border capacity of the network arising from different approval procedures or practices shall be annexed to the investment plan.
The transmission system operators shall implement the published investment plan.
6. ▐ The European Network of Transmission System Operators for Gas, on its own initiative, may propose to the Agency draft network codes in any area other than those listed in paragraph 3, with a view to achieving the objectives set out in Article 2a. The Agency shall adopt the network codes following the procedure set out in Article 2f while ensuring that those codes are not in contradiction with the guidelines adopted under Article 2e.
Article 2d Monitoring by the Agency 1. The Agency shall monitor the execution of the tasks referred to in Article 2c(1) of the European Network of Transmission System Operators for Gas.
2. The European Network of Transmission System Operators for Gas shall submit the draft network codes and the documents referred to in Article 2c(1), to the Agency for approval.
The European Network of Transmission System Operators for Gas shall collect all relevant information regarding the implementation of the network codes and submit it to the Agency for evaluation.
3. The Agency shall monitor the implementation of the technical codes, the 10-year investment plan and the ▐ annual work programme and shall include the results of that monitoring in its annual report. In the event of non-compliance with the network codes by the transmission system operators, the ▐ 10-year investment plan or the annual work programme of the European Network of Transmission System Operators for Gas the Agency shall provide information thereof to the Commission. C 294 E/134 EN Official Journal of the European Union 3.12.2009
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Article 2e Development of guidelines 1. The Commission shall, after consulting the Agency, establish an annual priority list identifying issues of primary importance for the development of the internal market for gas.
2. Having regard to the priority list, the Commission shall mandate the Agency to develop, within six months, draft guidelines establishing basic, clear and objective principles for the harmon isation of rules, as set out in Article 2c.
3. In drafting those guidelines, the Agency shall formally consult the European Network of Transmission System Operators for Gas and other stakeholders in an open and transparent manner.
4. The Agency shall adopt draft guidelines on the basis of that consultation. It shall specify the observations received during the consultation and explain how they were taken into account. It shall give reasons where observations have not been taken into account.
5. On its own initiative or at the request of the Agency, the Commission may initiate the same procedure to update the guidelines.
Article 2f Development of network codes 1. Within six months of the adoption of the guidelines by the Agency and in accordance with Article 2e, the Commission shall mandate the European Network of Transmission System Operators for Gas to develop draft network codes in full compliance with the principles established in the guidelines.
2. In drafting those network codes, the European Network of Transmission System Operators for Gas shall take into consideration technical expertise from market participants and network users and shall keep them informed of progress.
3. The European Network of Transmission System Operators for Gas shall submit the draft network codes to the Agency.
4. The Agency shall conduct a formal consultation in relation to the draft network codes in an open and transparent manner.
5. The Agency shall adopt the draft network codes on the basis of that consultation. It shall specify the observations received during the consultation and explain how they were taken into account. It shall give reasons where observations have not been taken into account.
6. On the Agency's own initiative or at the request of the European Network of Transmission System Operators for Gas, a revision of the existing network codes may be undertaken following the same procedure.
7. The Commission may, on the recommendation of the Agency, submit the network codes to the Committee referred to in Article 14(1) for its final adoption in accordance with the procedure referred to in Article 14(2). 3.12.2009 EN Official Journal of the European Union C 294 E/135
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Article 2g Consultations 1. In carrying out its tasks, the Agency shall formally consult, ▐ in an open and transparent manner, ▐ all appropriate market participants. The consultation shall include supply undertakings, customers, system users, distribution system operators, LNG system operators and storage system operators, including relevant (industry) associations, technical bodies and stakeholder platforms.
2. All documents and minutes of meetings related to the issues referred to in paragraph 1 shall be made public.
3. Before adopting the guidelines and network codes, the Agency shall specify the observations received during the consultation and explain how they were taken into account. The Agency shall provide reasons where observations have not been taken into account.
4. The European Network of Transmission System Operators for Gas shall cooperate with market participants and network users in accordance with Article 2f(2).
Article 2h Costs The costs relating to the activities of the European Network of Transmission System Operators for Gas mentioned in Articles 2a to 2i shall be borne by the transmission system operators and shall be taken into account in the calculation of tariffs.
Article 2i Regional cooperation of transmission system operators 1. Transmission system operators shall establish regional cooperation within the European Network of Transmission System Operators for Gas to contribute to the tasks mentioned in Article 2c(1). In particular, they shall publish a regional investment plan every two years, and may take investment decisions based thereon.
The regional investment plan may not be contradictory to the 10 year investment plan referred to in Article 2c(1)(c).
2. Transmission system operators shall promote operational arrangements in order to ensure optimum management of the network, and promote the development of energy exchanges, the coor dinated allocation of cross-border capacity▐ and the compatibility of cross-border balancing mechanisms.
3. The national regulatory authorities and other relevant national authorities shall cooperate at all levels for the purpose of harmonising the market design and integrating their national markets at least at one or more regional levels, as a first and intermediate step towards a fully liberalised internal market. In particular, they shall promote the cooperation of transmission network operators at a regional level and facilitate their regional integration with a view to creating a competitive internal market, facilitating harmonisation of their regulatory and technical frameworks and, in particular, integrating persisting gas islands.
______(*) OJ L 262, 22.9.2006, p. 1.’ C 294 E/136 EN Official Journal of the European Union 3.12.2009
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(4) ║ Article 3(1) shall be amended as follows:
(a) subparagraph 1 shall be replaced by the following:
‘1. Tariffs, or the methodologies used to calculate them, applied by transmission system and LNG system operators and approved by the regulatory authorities pursuant to Article 25(2) of Directive 2003/55/EC, as well as tariffs published pursuant to Article 18(1) of that Directive, shall be transparent, take into account the need for system integrity and its improvement and reflect actual costs incurred, insofar as such costs correspond to those of an efficient and structurally comparable network operator and are transparent, whilst including appropriate return on investments. Tariffs, or the methodologies used to calculate them, shall be applied in a non-discriminatory manner.’
(b) subparagraph 3 shall be replaced by the following:
‘Tariffs, or the methodologies used to calculate them, shall facilitate efficient gas trade and competition, while at the same time avoiding cross-subsidies between network users and providing incentives for investment and maintaining or creating interoperability for trans mission networks. This may involve special regulatory treatment for new investment.’
(c) the following subparagraphs shall be added:
‘Tariffs for network users shall be set separately and independently per entry point into or exit point out of the transmission system. Network charges shall not be calculated on the basis of contract paths. Access to the network shall be open to new entrants on a non-discriminatory basis.
Tariffs, or the methodologies used to calculate them, shall be applied in a non-discriminatory manner and shall be transparent.’
(5) The title of Article 4 is replaced by the following:
‘Third-party access services concerning transmission system operators;’
(6) The following article shall be inserted after Article 4:
‘Article 4a Third-Party Access services concerning storage and LNG facilities 1. LNG and storage system operators shall:
(a) ensure that they offer services on a non-discriminatory basis to all network users that accom modate market demand; in particular, where an LNG or storage system operator offers the same service to different customers simultaneously, it shall do so under equivalent contractual terms and conditions;
(b) offer services that are compatible with the use of the interconnected gas transportation systems and ease access through cooperation with the transmission system operator;
(c) make relevant information public, in particular data on the use and availability of services, in a time frame compatible with the storage and LNG facility users’ reasonable commercial needs, subject to the monitoring of such publication by the competent authority.
2. Storage system operators shall:
(a) provide both firm and interruptible third-party access services; the price of interruptible capacity shall reflect the probability of interruption;
(b) offer to storage facility users both long- and short-term services;
(c) offer to storage facility users both bundled and unbundled services of storage space, injectability and deliverability. 3.12.2009 EN Official Journal of the European Union C 294 E/137
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3. LNG and storage facility contracts shall not result in arbitrarily higher tariffs in the event that they are signed:
(a) outside ║ a natural gas year with non-standard start dates; or
(b) with a shorter duration than a standard transport and storage contract on an annual basis.
4. Where appropriate, third-party access services may be granted subject to appropriate guarantees from network users with respect to the creditworthiness of such users. Such guarantees must not constitute any undue market entry barriers and must be non-discriminatory, transparent and propor tionate.
5. Contractual limits on the required minimum size of LNG facility capacity and storage capacity shall be justified on the basis of technical constraints, and shall permit smaller storage users to gain access to storage services.’
(7) Article 5 shall be amended as follows:
(a) the title shall be replaced by the following:
‘Principles of capacity allocation mechanisms and congestion management procedures concerning transmission system operators’
(b) paragraph 2(a) shall be replaced by the following:
‘(a) provide appropriate economic signals for efficient and maximum use of technical capacity, facilitate investment in new infrastructure and facilitate cross-border trade in gas.’
(c) paragraph 3 shall be replaced by the following:
‘3. Transmission system operators shall implement and publish non-discriminatory and trans parent congestion management procedures which facilitate cross-border trade in gas on a non- discriminatory basis and in accordance with the principles of free competition.
To prevent contractual congestion, the transmission system operator shall offer unused capacity on the primary market at least on a day-ahead basis insofar as this does not prevent the implemen tation of long-term supply contracts.’
(d) paragraph 4 shall be deleted;
(e) the following paragraphs shall be added:
‘6. Transmission system operators shall regularly assess market demand for new investment. When planning new investments, transmission system operators shall assess market demand and take into account security of supply criteria.
7. In the event of long-term physical congestion, the transmission system operators shall relieve congestion by adding new capacities according to market demand. In order to assess market demand, the transmission system operators shall undertake open-season procedures.
8. The national regulatory authorities shall monitor congestion management within national gas systems and interconnectors.
The transmission system operators shall submit their congestion management procedures, including capacity allocation, for approval to the national regulatory authorities. The national regulatory authorities may request amendments to those procedures before approving them.’ C 294 E/138 EN Official Journal of the European Union 3.12.2009
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(8) The following article shall be inserted after Article 5:
‘Article 5a Principles of Capacity allocation mechanisms and congestion management procedures concerning storage facilities and LNG facilities 1. The maximum storage and LNG facility capacity shall be made available to market participants, taking into account system integrity and operation.
2. LNG and storage system operators shall implement and publish non-discriminatory and trans parent capacity allocation mechanisms which shall:
(a) provide appropriate economic signals for the efficient and maximum use of capacity and facilitate investment in new infrastructure;
(b) be compatible with the market mechanism including spot markets and trading hubs, while being flexible and capable of adapting to evolving market circumstances;
(c) be compatible with the connected network access systems.
3. LNG and storage facility contracts shall include measures to prevent capacity-hoarding, by taking into account the following principles, which shall apply in cases of contractual congestion:
(a) the system operator shall offer unused LNG facility and storage capacity on the primary market without delay; for storage facilities this shall be at least on a day-ahead and interruptible basis,
(b) LNG and storage facility users who wish to re-sell their contracted capacity on the secondary market shall be entitled to do so.
Those measures shall take into account the integrity of the system concerned as well as security of supply.’
(9) Article 6 shall be amended as follows:
(a) the title shall be replaced by the following:
‘Transparency requirements concerning transmission system operators’
(b) paragraph 5 shall be deleted;
(c) the following paragraph shall be added;
‘7. Transmission system operators shall make public ex-ante and ex-post supply and demand information, based on nominations, forecasts and realised flows in and out of the system. The level of detail of the information that is made public shall reflect the information available to the transmission system operator. The competent authority shall ensure that all necessary information is published.
Transmission system operators shall inform the national regulatory authority, on request, of measures taken as well as of costs incurred and revenues generated to balance the system.
The market participants concerned shall provide the transmission system operators with the data referred to in this Article.;’ 3.12.2009 EN Official Journal of the European Union C 294 E/139
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(10) The following articles shall be inserted after Article 6:
‘Article 6a Transparency requirements concerning storage facilities and LNG facilities 1. LNG and storage system operators shall make public detailed information regarding the services they offer and the relevant conditions applied, together with the technical information necessary for LNG and storage facility users to gain effective access to the LNG and storage facilities.
2. For the services provided, each LNG and storage system operator shall make public information on contracted and available storage and LNG facility capacities numerically, on a regular and rolling basis and in a user-friendly and standardised manner. The competent authority shall ensure that all necessary information is published.
3. LNG and storage system operators shall always disclose the information required by this Regu lation in a meaningful, easily quantifiable and easily accessible way and on a non-discriminatory basis.
4. All LNG and storage system operators shall make public the amount of gas in each storage facility, group of storage facilities in the same balancing zone, or LNG facility, inflows and outflows, and the available storage and LNG facility capacities, including for those facilities exempted from third- party access. The information shall also be communicated to the transmission system operator who shall make it public on an aggregated level per system or subsystem defined by the relevant points. The information shall be updated at least on a daily basis.
5. In order to ensure transparent, objective and non-discriminatory tariffs and to facilitate efficient utilisation of the infrastructures, the LNG and storage facility operators or relevant regulatory authorities shall publish reasonably and sufficiently detailed information on tariff deri vation, methodologies and structure of tariffs for infrastructure under regulated third-party access. LNG and storage facility operators shall submit their congestion management procedures including capacity allocation for approval to the regulatory authorities. The regulatory authorities may request amendments to those procedures before approving them.
6. Where a LNG or storage facility operator considers that it is not entitled, for reasons of confidentiality, to make public all the data required, it shall seek the authorisation of the national regulatory authority to limit publication with respect to the point or points in question.
The national regulatory authority shall grant or refuse the authorisation on a case-by-case basis, taking into account in particular the need to respect legitimate commercial confidentiality and the objective of creating a competitive internal market for gas. If the authorisation is granted, available storage and/or LNG facility capacity shall be published without indicating the numerical data that would contravene confidentiality.
Article 6b Record keeping for system operators Transmission system operators, storage system operators and LNG system operators shall keep at the disposal of the national regulatory authority, the national competition authority and the Commission all information referred to in Article 6 and 6a, and in part 3 of the Annex for a period of five years.’
(11) Article 7 shall be amended as follows:
(a) the following sentence shall be added at the end of paragraph 1:
‘Balancing rules shall be market based.’ C 294 E/140 EN Official Journal of the European Union 3.12.2009
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(b) paragraph 2 shall be replaced by the following:
‘2. In order to enable network users to take timely corrective action, transmission system operators shall provide sufficient, well-timed and reliable on-line based information on the balancing status of network users.
The information provided shall reflect the level of information available to the transmission system operator and the settlement period for which imbalance charges are calculated.
No charge shall be made for the provision of such information.’
(c) paragraphs 4, 5 and 6 shall be deleted;
(12) Article 8 shall be replaced by the following:
‘Article 8 Trading of capacity rights Each transmission, storage and LNG system operator shall take reasonable steps to allow capacity rights to be freely tradable and to facilitate such trade. Trading shall take place subject to the principles of transparency and non-discrimination. Each such operator shall develop harmonised transportation, LNG facility and storage contracts and procedures on the primary market to facilitate secondary trade of capacity and recognise the transfer of primary capacity rights where notified by system users.
The harmonised transportation, LNG facility and storage contracts and procedures shall be notified to the regulatory authorities.’
(13) The following article shall be inserted after Article 8:
‘Article 8a Retail markets In order to facilitate the emergence of well-functioning, effective and transparent ▐ markets on a regional and Community scale, Member States shall ensure that the roles and responsibilities of transmission system operators, distribution system operators, supply undertakings and customers and if necessary other market participants are defined in detail with respect to contractual arrangements, commitment to customers, data exchange and settlement rules, data ownership and metering responsibility.
Those rules shall be made public ▐ and shall be subject to review by the regulatory authorities.’
(14) ║ Article 9 shall be replaced by the following:
‘Article 9 Guidelines on third-party access services 1. Where appropriate, the Commission may adopt guidelines providing the minimum degree of harmonisation required to achieve the aim of this Regulation, which shall specify ▐ details of third-party access services including the character, duration and other requirements of these services, in accordance with Articles 4 and 4a.
▐
2. The guidelines on third-party access referred to in paragraph 1 shall be laid down in the Annex with respect to transmission system operators. 3.12.2009 EN Official Journal of the European Union C 294 E/141
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3. The application and amendment of Guidelines on third-party access adopted pursuant to this Article shall reflect differences between national gas systems, and shall therefore not require uniform detailed terms and conditions of third party access at Community level. They may, however, set minimum requirements to be met to achieve non-discriminatory and transparent network access conditions necessary for an internal gas market, which may then be applied in the light of differences between national gas systems.’
(15) Article 13(1) shall be replaced by the following:
‘1. The Member States shall ensure that national regulatory authorities established under Article 25 of Directive 2003/55/EC have the competence to ensure effective compliance with this Regulation by providing them with the power, in relation to any single breach, either to impose effective, dissuasive and proportionate penalties of up to 10 % of the system operator's annual turnover in its domestic market or to revoke the operator's licence. The Member States shall inform the Commission thereof by 1 January 2010 and shall inform it without delay of any subsequent amendments.’
(16) Article 14(2) shall be replaced by the following:
‘2. Where reference is made to this paragraph, Article 5a(1) to (4), and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.’
(17) Article 16(b) shall be replaced by the following:
‘(b) interconnectors between Member States, LNG and storage facilities and significant increases of capacity in existing infrastructures and modifications of such infrastructures which enable the development of new sources of gas supply as referred to in Article 22(1) and (2) of Directive 2003/55/EC which are exempted from the provisions of Articles 7, 18, 19, 20 or 25(2), (3) and (4) of that Directive as long as they are exempted from the provisions referred to in this subparagraph, with the exception of Article 6a(4) of this Regulation; or’
(18) The Annex shall be amended as follows:
(a) the title of point 1 shall be replaced by the following:
‘Third-party access services concerning transmission system operators’
(b) the title of point 2 shall be replaced by the following:
‘Principles of capacity allocation mechanisms and congestion management procedures concerning transmission system operators and their application in the event of contractual congestion ║’
Article 2 This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at ║
For the European Parliament For the Council The President The President C 294 E/142 EN Official Journal of the European Union 3.12.2009
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Internal market in natural gas ***I P6_TA(2008)0347 European Parliament legislative resolution of 9 July 2008 on the proposal for a directive of the European Parliament and of the Council amending Directive 2003/55/EC concerning common rules for the internal market in natural gas (COM(2007)0529 — C6-0317/2007 — 2007/0196(COD)) (2009/C 294 E/48) (Codecision procedure: first reading)
The European Parliament,
— having regard to the Commission proposal to the European Parliament and the Council (COM(2007)0529),
— having regard to Article 251(2), Article 47(2) and Articles 55 and 95 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0317/2007),
— having regard to Rule 51 of its Rules of Procedure,
— having regard to the report of the Committee on Industry, Research and Energy and the opinions of the Committee on Economic and Monetary Affairs and the Committee on the Internal Market and Consumer Protection (A6-0257/2008),
1. Approves the Commission proposal as amended;
2. Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;
3. Instructs its President to forward its position to the Council and the Commission.
P6_TC1-COD(2007)0196 Position of the European Parliament adopted at first reading on 9 July 2008 with a view to the adoption of Directive 2008/…/EC of the European Parliament and of the Council amending Directive 2003/55/EC concerning common rules for the internal market in natural gas (Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 47(2) and Articles 55, and 95 thereof,
Having regard to the proposal from the Commission ║,
Having regard to the opinion of the European Economic and Social Committee ( 1 ),
Having regard to the opinion of the Committee of the Regions ( 2),
Acting in accordance with the procedure laid down in Article 251 of the Treaty ( 3 ),
( 1 ) OJ C 211, 19.8.2008, p. 23. ( 2 ) OJ C 172, 5.7.2008, p. 55. ( 3 ) Position of the European Parliament of 9 July 2008. 3.12.2009 EN Official Journal of the European Union C 294 E/143
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Whereas:
(1) The internal market for gas, which has been progressively implemented throughout the Community since 1999, aims at delivering real choice for all║ consumers in the European Union, whether they are citizens or businesses, new business opportunities and more cross-border trade, so as to achieve efficiency gains, competitive prices, and higher standards of service, and to contribute to security of supply and sustainability.
(2) Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas ║ ( 1 ) has made a significant contribution towards the creation of ║ an internal market for gas.
(3) ║ The right to sell gas in any Member State on equal terms and without discrimination or disad vantages cannot, however, currently be guaranteed to all companies in all Member States. In particular, non-discriminatory network access and an equally effective level of regulatory supervision in each Member State do not yet exist, since the ║ legal framework is insufficient.
(4) The Communication of the Commission of 10 January 2007 entitled ‘An Energy Policy for Europe’ ║ highlighted the importance of completing the internal market in natural gas and of creating a level playing field for all natural gas undertakings established in the Community. The Communications of the Commission, of the same date, on prospects for the internal gas and electricity market and its final report in relation to its inquiry pursuant to Article 17 of the Regulation (EC) No 1/2003 into the European gas and electricity sectors showed that the present rules and measures do not provide the necessary framework for achieving the objective of a well-functioning internal market.
(5) Without effective separation of networks from the activities of production and supply, there is a risk of discrimination not only in the operation of the network but also in the incentives for vertically integrated companies to invest adequately in their networks.
(6) The Member States should promote cooperation and monitor the effectiveness of the network at regional level. Several Member States have already put forward a proposal that would fulfil such an objective.
(7) The rules on legal and functional unbundling currently in place have not yet led to effective unbundling of the transmission system operators in every Member State, partly due to the fact that existing Community legislation has not been fully implemented. At its meeting in Brussels on 8 and 9 March 2007, the European Council invited the Commission to develop legislative proposals for the effective separation of supply and production activities from network operations.
(8) Only the removal of the inherent incentive for vertically integrated undertakings to discriminate against competitors as regards network access and investment can ensure effective unbundling. Ownership unbundling, which implies the appointment of the network owner ║as the network operator and the network operator's independence from any supply and production interests, is clearly the most effective and stable way to solve the inherent conflict of interest and to ensure security of supply. For this reason, the European Parliament in its resolution of 10 July 2007 on prospects for the internal gas and electricity market ( 2) ║ referred to ownership unbundling at transmission level as the most effective tool by which to promote non-discriminatory investments in infrastructures ║, fair access to the grid for new entrants and transparency in the market. Member States should therefore be required to ensure that the same person or persons are not entitled to exercise control, including through minority blocking rights on decisions of strategic importance such as investments, over a production or supply undertaking and, at the same time, hold any interest in or exercise any right over a trans mission system operator or transmission system. Conversely, control over a transmission system operator should preclude the possibility of holding any interest in or exercising any right over a supply undertaking.
( 1 ) OJ L 176, 15.7.2003, p. 57. ( 2 ) OJ C 175 E, 10.7.2008, p. 206. C 294 E/144 EN Official Journal of the European Union 3.12.2009
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(9) Any system for unbundling should be effective in removing any conflict of interests between producers and transmission system operators, in order to create incentives for the necessary investments and guarantee the access of new market entrants under a transparent and efficient regulatory regime and should not create an onerous or cumbersome regulatory regime for national regulatory authorities that would be difficult or expensive to implement.
(10) Gas is mainly, and increasingly, imported into the European Union from third countries. Community law should therefore take account of the specific integration of the gas sector into the world market, including the differences in the upstream and downstream markets.
(11) Since ownership unbundling requires, in some instances, ║ restructuring of undertakings, Member States that decide to implement ownership unbundling should be granted additional time to apply the relevant provisions. In view of the vertical links between the electricity and gas sectors, the unbundling provisions should ║, moreover, apply across both sectors.
(12) Member States that so wish may apply the provisions of this Directive that relate to the effective and efficient separation of transmission systems and transmission system operators. Such separation is effective insofar as it helps to ensure the independence of transmission system operators and is efficient insofar it provides a more appropriate regulatory framework to guarantee fair competition, sufficient investment, access to new market entrants and the integration of natural gas markets. Such separation is, moreover, based on a pillar of organisational measures and measures relating to the governance of transmission system operators and on a pillar of measures relating to investment, connecting new production capacities to the network and market integration through regional cooperation and is in line with the requirements laid down by the European Council at its meeting on 8 and 9 March 2007.
(13) Member States should promote regional cooperation, with the possibility of designating a regional coordinator in charge of facilitating dialogue between competent national authorities. New producers and supply undertakings should, furthermore, be connected to the network in an effective manner in due course.
(14) In order to ensure the proper implementation of this Directive, the Commission should assist those Member States that encounter problems therewith.
(15) The aim of an integrated European energy network is essential for security of supply and a well- functioning internal market for gas. The Commission, in consultation with the stakeholders (in particular the transmission system operators and the Agency for the Cooperation of Energy Regulators (‘the Agency’) established by Regulation (EC) No …/2008 of the European Parliament and of the Council of … [on establishment of an Agency for the Cooperation of Energy Regulators] ( 1 )), should therefore assess the feasibility of creating a single European transmission system operator and analyse the costs and benefits with respect to market integration as well as the effective and secure operation of the transmission network.
(16) To ensure full independence of network operation from supply and production interests and to prevent exchange of any confidential information, the same person should not be a member of the managing boards of both a transmission system operator and an undertaking performing any of the functions of production or supply. For the same reason, the same person should not be entitled to appoint members of the managing boards of a transmission system operator and to hold any interest in a supply undertaking.
(17) The setting up of transmission system operators independent from supply and production interests should enable vertically integrated companies to maintain their ownership of network assets whilst ensuring an effective separation of interests, provided that the independent transmission system operator performs all the functions of a network operator, and detailed regulation and extensive regulatory control mechanisms are put in place.
( 1 ) OJ L … 3.12.2009 EN Official Journal of the European Union C 294 E/145
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(18) Where the undertaking owning a transmission system is part of a vertically integrated undertaking, Member States should ║ be given a choice between two options: ownership unbundling or the establishment of an independent transmission system operator.
(19) In order to develop competition in the internal market for gas, non-household customers should be able to choose their suppliers as well as enter into contracts to secure their gas requirements with several suppliers. Such customers should be protected against exclusivity clauses, the effect of which is to exclude competing and/or complementary offers.
(20) The implementation of effective unbundling should respect the principle of non-discrimination between the public and private sectors. To this end, the same person should not be able to exercise any influence, solely or jointly, over the composition, voting or decision of the bodies of both transmission system operators and supply undertakings.▐
(21) ▐ Separation of network and supply activities should apply throughout the Community▐ . This should apply equally to undertakings established in the European Union and those established in third countries. To ensure that network and supply activities throughout the Community are kept separate, national regulatory authorities should be empowered to refuse certification to transmission system operators that do not comply with the unbundling rules. To ensure ║ consistent application across the Community and ║ respect for the international obligations of the Community, the Agency should have the right to review the decisions on certification taken by the national regulatory authorities.
(22) The safeguarding of energy supply is an essential element of public security and is therefore inherently connected to the efficient functioning of the internal market for gas and the integration of the isolated markets of Member States. Use of the network is essential for gas to reach ║ citizens of the Union. Functioning open gas markets with genuine trading possibilities, and, in particular, the networks and other assets associated with gas supply are essential for public security, ║ the competitiveness of the economy and ║ the well-being of the citizens of the Union. Without prejudice to its international obligations ║, the Commission considers that the gas transmission system sector is of high importance to the Community and therefore additional safeguards are necessary regarding the influence of third countries in order to avoid any threats to Community public order and public security and the welfare of the citizens of the Union. Such measures are also necessary for ensuring compliance with the rules on effective unbundling.
(23) It is necessary to ensure the independence of storage system operators in order to improve third-party access to storage facilities that are technically and/or economically necessary for providing efficient access to the system for the supply of customers. It is therefore appropriate that storage facilities are operated through legally separate entities that have effective decision making rights with respect to assets necessary to maintain, operate and develop storage facilities. It is also necessary to increase transparency in respect of the storage capacity that is offered to third parties, by obliging Member States to define and publish a non-discriminatory, clear framework that determines the appropriate regulatory regime applicable to storage facilities.
(24) Non-discriminatory access to the distribution network determines downstream access to customers at retail level. The scope for discrimination as regards third-party access and investment is, however, less significant at distribution level than it is at transmission level because at distribution level congestion and the influence of production interests are generally less important than at transmission level. Moreover, functional unbundling of distribution system operators became, in accordance with Directive 2003/55/EC, compulsory only as of 1 July 2007 and its effects on the internal market still need to be evaluated. The rules on legal and functional unbundling currently in place can lead to effective unbundling provided they are more clearly defined, properly implemented and closely monitored. To create a level playing field at retail level, the activities of distribution system operators should therefore be monitored so that they are prevented from taking advantage of their vertical integration as regards their competitive position on the market, in particular in relation to small household and non-household customers. C 294 E/146 EN Official Journal of the European Union 3.12.2009
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(25) Member States should take concrete measures to assist the wider use of biogas and gas from biomass, the producers of which must be granted non-discriminatory access to the gas system, provided that such access is compatible with the relevant technical rules and safety standards on an ongoing basis.
(26) Directive 2003/55/EC introduced a requirement for Member States to establish national regulatory authorities with specific competences. However, experience shows that the effectiveness of regulation is frequently hampered by a lack of independence of national regulatory authorities from government, and insufficient powers and discretion. For this reason, at its abovementioned meeting in Brussels ║, the European Council invited the Commission to develop legislative proposals providing for further harmonisation of the powers and strengthening of the independence of national regulatory authorities.
(27) National regulatory authorities need to be able to take decisions on all relevant regulatory issues if the internal market is to function properly, and to be fully independent from any other▐ interests of public or private companies.
(28) National regulatory authorities should have the power to issue binding decisions on network operators and to impose effective, appropriate and dissuasive sanctions on network operators that fail to comply with their obligations. They should also be granted the powers to decide, irrespective of the application of competition rules, on any appropriate measures regarding the access to networks with the aim of effective competition necessary for the proper functioning of the market; as well as to ensure high standards of public service in compliance with market opening, the protection of vulnerable customers and the full effectiveness of consumer protection measures ║. Those provisions should be without prejudice to both the Commission's powers concerning the application of competition rules including the examination of mergers with a Community dimension, and the rules on the internal market, such as the free movement of capital.
(29) National regulatory authorities and financial market regulators should cooperate in order to allow each other an overview of their respective markets. They should have the power to obtain relevant information from natural gas undertakings through appropriate and sufficient investigations, settle disputes, and impose effective sanctions.
(30) Investments in major new infrastructures should be strongly promoted while ensuring the proper functioning of the internal market for gas. In order to enhance the positive effect of exempted infra structure projects on competition and security of supply, market interest during the project planning phase should be tested and congestion management rules should be implemented. Where an infra structure is located in the territory of more than one Member State, the Agency ║ should handle the exemption request in order to take better account of its cross-border implications and to facilitate its administrative handling. Moreover, given the exceptional risk profile of constructing these exempt major infrastructure projects it should be possible temporarily to║ grant partial derogations to supply and production undertakings in respect of the unbundling rules for the projects concerned. This should, in particular, apply, for security of supply reasons, to new pipelines within the Community transporting gas from third countries into the Community.
(31) The internal ║ market for gas suffers from a lack of liquidity and transparency hindering the efficient allocation of resources, risk hedging and new entry. Trust in the market, its liquidity and the number of market participants need to increase, and therefore regulatory oversight over undertakings active in the supply of gas need to be increased. Such requirements should be without prejudice to, and compatible with, the existing Community legislation on financial markets. National regulatory authorities and financial market regulators need to cooperate in order to enable each other to have an overview of the markets concerned.
(32) The structural rigidities of the gas market which arise from the concentration of suppliers, the long- term contracts that underpin deliveries, and the lack of downstream liquidity, generate non-trans parent pricing structures. In order to bring clarity to the cost structure, more transparency is needed in the price formation, and a trading obligation should therefore be mandatory. 3.12.2009 EN Official Journal of the European Union C 294 E/147
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(33) The public service requirements and the common minimum standards that follow from them need to be further strengthened to make sure that all consumers can benefit from competition. A key aspect in supplying customers is access to consumption data, and consumers must have access to their data so that they can invite competitors to make an offer based on these data. Consumers also should have the right to be properly informed about their energy consumption. Regularly provided information on energy costs will create incentives for energy savings because it will give customers direct feedback on the effects of investment in energy efficiency and change of behaviour.
(34) The public service requirements and the common minimum standards that follow therefrom need to be further strengthened to ensure that gas services are accessible to the public and to small and medium-sized enterprises.
(35) Member States should ensure that individual smart meters are installed, as provided for in Directive 2006/32/EC of the European Parliament and of the Council of 5 April 2006 on energy end-use efficiency and energy services ( 1) , in order to give consumers accurate information about energy consumption and to secure end-user efficiency.
(36) Consumers should be the main focus of this Directive. Existing rights for consumers need to be strengthened and guaranteed, and should include greater transparency and representation. Consumer protection means that all customers should benefit from a competitive market. Consumer rights should be enforced by national regulatory authorities by the creation of incentives and the imposition of sanctions on undertakings which do not comply with consumer protection and competition rules.
(37) Clear and comprehensible information should be made available to consumers concerning their rights in relation to the energy sector. Following on from its communication of 5 July 2007 entitled ‘Towards a European Charter of the Rights of Energy Consumers’, the Commission should put forward, after consulting relevant stakeholders, including national regulatory authorities, consumer organisations and the social partners, an accessible, user-friendly charter listing the rights of energy consumers already in existing Community law including this Directive. Energy suppliers should ensure that all consumers receive a copy of that charter and that it is publicly available.
(38) In order to contribute to security of supply, Member States should, whilst maintaining a spirit of solidarity▐ , notably in the event of an energy supply crisis, work together closely. Council Directive 2004/67/EC of 26 April 2004 concerning measures to safeguard security of natural gas supply ( 2 ) should serve as a basis for that purpose.
(39) In view of the creation of an internal market for gas, Member States should foster the integration of their national markets and the cooperation of network operators at European and regional level. Regional integration initiatives are an essential intermediate step in achieving the integration of the internal energy markets, which remains the final objective. The regional level contributes towards accelerating the integration process by making it possible for the actors concerned, particularly the Member States, the national regulatory authorities and the transmission system operators, to cooperate in regard to specific issues.
(40) The development of a truly pan-Community pipeline network should be one of the main goals of this Directive and regulatory issues on cross-border interconnections and regional markets should, therefore, be the responsibility of the Agency.
(41) National regulatory authorities should provide information to the market also to permit the Commission to exercise its role of observing and monitoring the internal market for gas and its short, medium and long-term evolution, including aspects such as supply and demand, transmission and distribution infrastructures, cross-border trade, investments, wholesale and consumers prices, market liquidity, environmental and efficiency improvements.
( 1 ) OJ L 114, 27.4.2006, p. 64. ( 2 ) OJ L 127, 29.4.2004, p. 92. C 294 E/148 EN Official Journal of the European Union 3.12.2009
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(42) Since the objective of this Directive, namely the creation of a fully operational internal║ market for gas, cannot be sufficiently achieved by the Member States and can therefore, by reason of its scale and effects ║, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.
(43) Member States should consider, with the social partners concerned, the implications of amending Directive 2003/55/EC, in particular the different models to ensure independence of transmission system operators, in terms of the employment, working conditions and information, consultation and participation rights of workers, with a view to mitigating the negative consequences.
(44) Regulation (EC) No 1775/2005 of the European Parliament and of the Council of 28 September 2005 on conditions for access to the natural gas transmission network ( 1) provides the Commission with the possibility of adopting guidelines to achieve the necessary degree of harmonisation. Such guidelines, which are thus binding implementing measures, are a useful tool which can be adapted quickly where necessary.
(45) Directive 2003/55/EC provides that certain measures are to be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission ( 2 ).
(46) Decision 1999/468/EC has been amended by Council Decision 2006/512/EC ( 3), which introduced a regulatory procedure with scrutiny for measures of general scope designed to amend non-essential elements of a basic instrument adopted in accordance with the procedure referred to in Article 251 of the Treaty, inter alia by ║ supplementing it with new non-essential elements.
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(47) Directive 2003/55/EC should be amended accordingly,
HAVE ADOPTED THIS DIRECTIVE:
Article 1 Amendments to Directive 2003/55/EC Directive 2003/55/EC is amended as follows:
(1) Article 1(2) shall be replaced by the following:
‘2. The rules established by this Directive for natural gas, including liquefied natural gas (LNG), shall also apply in a non-discriminatory way to biogas and gas from biomass or other types of gas in so far as such gases can technically and safely be injected into, and transported through, the natural gas system.’
(2) Article 2 shall be amended as follows:
(a) point 3 shall be replaced by the following:
‘3. “transmission” means the transport of natural gas through a network containing mainly high-pressure pipelines, other than an upstream pipeline network or the part of high- pressure pipelines primarily used in the context of local distribution of natural gas, with a view to its delivery to customers, but not including supply;’
( 1 ) OJ L 289, 3.11.2005, p. 1. ( 2 ) OJ L 184, 17.7.1999, p. 23. ║. ( 3 ) OJ L 200, 22.7.2006, p. 11. 3.12.2009 EN Official Journal of the European Union C 294 E/149
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(b) point 9 shall be replaced by the following:
‘9. “storage facility” means a facility used for the stocking of natural gas and owned and/or operated by a natural gas undertaking, including the part of LNG facilities used for storage but excluding the portion used exclusively for production operations, and excluding facilities reserved exclusively for transmission system operators in carrying out their functions;’
(c) point 14 shall be replaced by the following:
‘14. “ancillary services” means all services necessary for access to and the operation of trans mission and/or distribution networks and/or LNG facilities and/or storage facilities including load balancing, blending and injection of inert gases, but excluding facilities reserved exclusively for transmission system operators carrying out their functions;’
(d) point 17 shall be replaced by the following:
‘17. “interconnector” means a long-distance gas pipeline which crosses or spans a border between Member States for the main purpose of connecting the national transmission systems of these Member States;’
(e) point 20 shall be replaced by the following:
‘20. “vertically integrated undertaking” means a natural gas undertaking, or a group of natural gas undertakings where the same person or the same persons are entitled, directly or indirectly, to exercise control within the meaning of Article 3(2) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (*), and where the undertaking or group of undertakings perform at least one of the functions of transmission, distribution, LNG or storage, and at least one of the functions of production or supply of natural gas; ______(*) OJ L 24, 29.1.2004, p. 1.’
(f) the following points shall be added:
‘34. “gas supply contract” means a contract for the supply of natural gas, but does not include a gas derivative;
35. “gas derivative” means a financial instrument specified in one of Sections C5, C6, or C7 of Annex I to Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments (*), where that instrument relates to natural gas;
36. “control” means any rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking, in particular by:
(a) ownership or the right to use all or part of the assets of an undertaking;
(b) rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an undertaking.║
For the avoidance of doubt, the long-term transport contract of an undertaking that holds interests in production or supply activities shall not constitute control of a transmission system per se;
37. “isolated market” means a Member State that has no interconnection to other Member States’ national transmission systems and/or whose gas supply is controlled by a person or persons from a third country; C 294 E/150 EN Official Journal of the European Union 3.12.2009
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38. “project of European interest” means a gas infrastructure project which results in new gas resources becoming available to the Community and in greater diversification of gas supplies in more than one Member State;
39. “fair and undistorted competition in an open market” means common opportunities and equal access for all providers within the European Union, for which the Member States, national regulatory authorities and the Agency for the Cooperation of Energy Regulators (“the Agency”) established by Regulation (EC) No …/2008 of the European Parliament and of the Council of … on establishment of an Agency for the Cooperation of Energy Regulators (**) shall be responsible;
40. “energy poverty” means the situation where the members of a household cannot afford to heat their home to an acceptable standard, based on the levels recommended by the World Health Organisation;
41. “affordable price” means a price defined by Member States at national level in consul tation with national regulatory authorities, social partners and relevant stakeholders while taking account of the definition of energy poverty provided for in point 40;
42. “industrial site” means a privately owned geographical area with a natural gas network managed by one company with a connection to the transmission or distribution network:
(a) which predominantly supplies the industrial activities of the network operator or of connected undertakings, or
(b) which supplies a limited number of industrial consumers or customers linked with the industrial activities on the industrial site.
______(*) OJ L 145, 30.4.2004, p. 1. (**) OJ L …’
(3) Article 3 shall be amended as follows:
(a) paragraph 2 shall be replaced by the following:
‘2. Having full regard to the relevant provisions of the Treaty, in particular Article 86 thereof, Member States may impose on natural gas undertakings, in the general economic interest, public service obligations which may relate to security, including security of supply, regularity and quality, and environmental protection, including energy efficiency and climate protection.’
(b) paragraph 3 shall be replaced by the following:
‘3. Member States shall take appropriate measures to protect final customers and shall, in particular, ensure that there are adequate safeguards to protect vulnerable customers, including prohibiting the disconnection of pensioners and disabled people in winter. In this context, Member States shall recognise energy poverty and shall provide definitions of vulnerable customers. Member States shall ensure that rights and obligations linked to vulnerable customers are applied and, in particular, shall take measures to protect final customers in remote areas. They shall ensure high levels of consumer protection, particularly with respect to transparency regarding contractual terms and conditions, general information and dispute settlement mechanisms. Member States shall ensure that the eligible customer is in fact able easily to switch to a new supplier. As regards at least household customers, these measures shall include those set out in Annex A.’ 3.12.2009 EN Official Journal of the European Union C 294 E/151
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(c) the following paragraphs shall be inserted after paragraph 3:
‘3a. Member States shall take appropriate measures to address energy poverty in national action plans in order to ensure that the number of people suffering energy poverty decreases in real terms and shall communicate such measures to the Commission. Each Member State shall be responsible for providing, in accordance with the principle of subsidiarity, a definition of energy poverty at national level, in consultation with national regulatory authorities and stake holders with reference to Article 2(40). Such measures may include benefits in social security systems, support to energy efficiency improvements and energy production at the lowest possible prices, and shall not impede the opening of the market set out in Article 23. The Commission shall provide guidance to monitor the impact of such measures on energy poverty, and on the functioning of the market.
3b. Member States shall ensure that all customers are entitled to have their gas provided by a supplier, subject to the supplier's agreement, regardless of the Member State in which the supplier is authorised or otherwise approved. In this regard, Member States shall take all necessary measures to ensure that undertakings which are approved as suppliers in another Member State can supply their citizens without having to comply with any further conditions.’
(d) paragraph 4 shall be replaced by the following:
‘4. Member States shall implement appropriate measures in order to achieve the objectives of social and economic cohesion, with a view to lowering the cost of gas provided to low-income household customers and guaranteeing the same conditions for the customers living in remote areas on the one hand, and the objectives of environmental protection on the other. Those measures include energy efficiency/demand-side management measures and means to combat climate change, and security of supply, and may also include, in particular, the provision of adequate economic incentives, using, where appropriate, all existing national and Community tools, for the maintenance and construction of necessary network infrastructure, including interconnection capacity.’
(e) the following paragraphs shall be inserted after paragraph 4:
‘4a. In order to promote energy efficiency, national regulatory authorities shall mandate natural gas undertakings to introduce pricing formulas which increase in the case of greater levels of consumption and shall ensure the active participation of customers and distribution system operators in system operations by supporting the introduction of measures to optimise the use of gas, particularly during peak hours. Such pricing formulas, combined with the introduction of smart meters and grids, shall promote energy efficiency behaviour and the lowest possible costs for household customers, in particular household customers suffering energy poverty.
4b. Member States shall provide single points of contact in order to ensure that consumers have access to all necessary information concerning their rights, current legislation and the means of redress available to them in the event of a dispute.’
(f) the following paragraph shall be inserted after paragraph 5:
‘5a. The implementation of this Directive shall have no negative consequences for the employment, working conditions and information, consultation and participation rights of the workers concerned. Member States shall consult the social partners concerned as regards the implementation of any amendments to this Directive to mitigate such negative consequences. The Commission shall report to the sectoral social dialogue committees for gas and for electricity on the consultations and measures taken.’ C 294 E/152 EN Official Journal of the European Union 3.12.2009
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(4) Article 4(2) shall be replaced by the following:
‘2. Where Member States have a system of authorisation, they shall lay down objective and non- discriminatory criteria which shall be met by an undertaking applying for an authorisation to build and/or operate natural gas facilities or applying for an authorisation to supply natural gas. Member States shall, in any event, not be entitled to bind the authorisation to criteria which give the competent authorities discretionary powers. The non-discriminatory criteria and procedures for the granting of authorisations shall be made public. Member States shall ensure that authorisation procedures for facilities, pipelines and associated equipment take into account the importance of the project for the internal market for gas.’
(5) The following articles shall be inserted after Article 5:
‘Article 5a Regional solidarity 1. In order to safeguard a secure supply on the internal market of natural gas, Member States shall, without imposing a disproportionate burden on market participants, cooperate in order to promote regional and bilateral solidarity.
2. This cooperation shall cover situations resulting or likely to result in the short term in a severe disruption of supply affecting a Member State. It shall include:
(a) coordination of national emergency measures as mentioned by Article 8 of Directive 2004/67/EC;
(b) identification and, where necessary, development or upgrading of electricity and natural gas inter connections;
(c) conditions and practical modalities for mutual assistance.
3. The Commission, the other Member States and the market participants shall be kept informed of such cooperation.
▐
Article 5b Promotion of Regional Cooperation 1. National regulatory authorities shall cooperate ║ for the purpose of harmonising the market design and integrating their national markets at least at one regional level, as a first and intermediate step towards a fully liberalised internal market for gas. In particular, they shall promote the cooperation of network operators at a regional level and facilitate their integration at regional level with the aim of creating a competitive internal market, facilitating the harmonisation of their legal, regulatory and technical framework and, above all, integrating the gas islands that persist in the European Union. Member States shall also promote cross-border and regional coop eration among national regulatory authorities.
2. The Agency shall cooperate with national regulatory authorities and transmission system operators in accordance with Chapters III and IV to ensure the convergence of regulatory frameworks between the regions with the aim of creating a competitive internal market. Where the Agency considers that binding rules on such cooperation are required, it shall make appropriate recommendations. In regional markets, the Agency shall be deemed to be the competent authority in the areas specified in Article 24d.’ 3.12.2009 EN Official Journal of the European Union C 294 E/153
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(6) Article 7 shall be replaced by the following:
‘Article 7 Unbundling of transmission systems and transmission system operators 1. Member States shall ensure that as from … (*):
(a) each undertaking which owns a transmission system acts as a transmission system operator;
(b) the same person or ║ persons are not entitled, either individually or jointly:
(i) ║directly or indirectly to exercise control over an undertaking performing any of the functions of production or supply, and ║ directly or indirectly to exercise control or hold any interest in or exercise any right over a transmission system operator ▐, or
(ii) ║directly or indirectly to exercise control over a transmission system operator ▐, and ║ directly or indirectly to exercise control or hold any interest in or exercise any right over an under taking performing any of the functions of production or supply;
(c) the same person or the ║ persons are not entitled to appoint members of the supervisory board, the administrative board or bodies legally representing the undertaking, of a transmission system operator ▐, and ║ directly or indirectly to exercise control or hold any interest in or exercise any right over an undertaking performing any of the functions of production or supply;
(d) the same person is not entitled to be a member of the supervisory board, the administrative board or bodies legally representing the undertaking, of both an undertaking performing any of the functions of production or supply and a transmission system operator or a transmission system;
(e) the same person or persons are not entitled to operate the transmission system via management contract or exercise influence in any other way of non-ownership, and directly or indirectly to exercise control or hold any interest in or exercise any right over an undertaking performing any of the functions of production or supply.
2. The interests and rights referred to in paragraph 1(b) shall include, in particular:
(a) the ownership of part of the capital or of the business assets; ║
(b) the power to exercise voting rights; ║
(c) the power to appoint members of the supervisory board, the administrative board or bodies legally representing the undertaking; or
(d) the right to obtain dividends or other shares of the benefits.
3. For the purpose of paragraph 1(b), the term “undertaking performing any of the functions of production or supply” shall cover “undertaking performing any of the functions of generation or supply” within the meaning of Directive 2003/54/EC ║, and the terms “transmission system operator” and “transmission system” shall cover “transmission system operator” and “transmission system” within the meaning of Directive 2003/54/EC.
║
4. Member States shall monitor the process of unbundling vertically integrated undertakings and shall submit a report to the Commission on the progress achieved.
5. Member States may allow for derogations from paragraph 1(b) and ║(c) until … (**), provided that transmission system operators are not part of a vertically integrated undertaking. C 294 E/154 EN Official Journal of the European Union 3.12.2009
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6. The obligation set out in paragraph 1(a) is deemed to be fulfilled in a situation where several undertakings which own transmission systems have created a joint venture which acts as a trans mission system operator in several Member States for the transmission systems concerned. ▐
7. Where a person referred to in paragraph 1(b) to (e) is the Member State or another public body, two separate public bodies exercising control over either a transmission system operator or a transmission system on the one hand and an undertaking performing any of the functions of production or supply on the other shall be deemed not to be the same person or persons.
8. Member States shall ensure that commercially sensitive information referred to in Article 10(1) held by a transmission system operator which was part of a vertically integrated undertaking, and the staff of such a transmission system operator, are not transferred to undertakings performing any of the functions of production or supply.
9. Where on … (***), the transmission system belongs to a vertically integrated undertaking, Member States may decide not to apply paragraph 1.
In such a case, Member States shall comply with the provisions of Chapter IVa.
Vertically integrated undertakings that own a transmission system may not in any event be prevented from taking steps to comply with paragraph 1.
______(*) One year after the date of transposition of Directive …/…/EC [amending Directive 2003/55/EC concerning common rules for the internal market in natural gas]. (**) Two years after the date of transposition of Directive …/…/EC [amending Directive 2003/55/EC concerning common rules for the internal market in natural gas]. (***) Date of entry into force of Directive …/…/EC [amending Directive 2003/55/EC concerning common rules for the internal market in natural gas] …’
(7) The following articles shall be inserted after Article 7:
‘Article 7a Control over transmission system owners and transmission system operators 1. Without prejudice to the international obligations of the Community, transmission systems or transmission system operators shall not be controlled by a person or persons from third countries.
2. An agreement aimed at establishing a common framework for investing in the energy sector and opening the energy market of a third country, including as regards undertakings established within the European Union, concluded with one or several third countries to which the Community is a party may allow for a derogation from paragraph 1.
Article 7b Designation and certification of transmission system operators 1. Undertakings which own a transmission system and which have been certified by the national regulatory authority as having complied with the requirements of Article 7(1) and Article 7a, pursuant to the certification procedure set out in this Article, shall be approved and designated as transmission system operators by Member States. The designation of transmission system operators shall be notified to the Commission and published in the Official Journal of the European Union. 3.12.2009 EN Official Journal of the European Union C 294 E/155
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2. Without prejudice to the international obligations of the Community, where certification is requested by a transmission system owner or transmission system operator controlled by a person or persons from third countries in compliance with Article 7a, it shall be refused unless the trans mission system owner or transmission system operator demonstrate that there is no possibility for the entity concerned to be influenced, in breach of Article 7(1), directly or indirectly by any operator active in the production or supply of gas or electricity or by a third country.
3. Transmission system operators shall notify ║ the national regulatory authority of any planned transaction which may require a reassessment of their compliance with Article 7(1) or Article 7a.
4. National regulatory authorities shall monitor the continuing compliance of transmission system operators with Article 7(1) and Article 7a. They shall open a certification procedure to ensure such compliance:
(a) upon notification by the transmission system operator pursuant to paragraph 3;
(b) on their own initiative where they have knowledge that a planned change in rights or influence over transmission system owners or transmission system operators may lead to an infringement of Article 7(1) or Article 7a, or where they have reason to believe that such an infringement may have occurred; or
(c) upon reasoned request from the Commission.
5. The national regulatory authorities shall adopt a decision on the certification of a transmission system operator within four months from the date of the notification by the transmission system operator or from the date of the Commission request. ║Certification is deemed to be granted in the event that the national regulatory authorities fail to adopt a decision within that period. The explicit or tacit decision of the national regulatory authority may become effective only after the conclusion of the procedure set out in paragraphs 6 to 9 and only if the Commission fails to raise objections against it.
6. The explicit or tacit decision on the certification of a transmission system operator shall be notified without delay to the Commission by the national regulatory authority, together with all the relevant information with respect to the decision.
7. The Commission shall examine the notification as soon as it is received. Within two months after receiving a notification, where the Commission finds that the decision of the national regulatory authority raises serious doubts as to its compatibility with Article 7(1), Article 7a or Article 7b(2) it shall decide to initiate proceedings. In such a case, it shall invite the national regulatory authority and the transmission system operator concerned to submit comments. Where additional information is sought by the Commission, the two-month-period may be extended by two additional months starting from the receipt of the complete information.
8. Where the Commission has decided to initiate proceedings, it shall, within ║ four months of the date of such decision, issue a final decision:
(a) not to raise objections against the decision of the national regulatory authority; or
(b) requiring the national regulatory authority concerned to amend or revoke its decision if it considers that Article 7(1), Article 7a or Article 7b(2) have not been complied with.
9. Where the Commission has not taken a decision to initiate proceedings or a final decision within the time-limits set in paragraphs 7 and 8 respectively, it shall be deemed not to have raised objections against the decision of the national regulatory authority. C 294 E/156 EN Official Journal of the European Union 3.12.2009
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10. The national regulatory authority shall comply with the Commission decision to amend or revoke the certification decision within a period of four weeks and shall inform the Commission accordingly.
11. National regulatory authorities and the Commission may request from transmission system operators and undertakings performing any of the functions of production of supply any information relevant for the fulfillment of their tasks under this Article.
12. National regulatory authorities and the Commission shall preserve the confidentiality of commercially sensitive information.
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13. The procedures set out in this Article, and, in particular, the limitations set out in paragraph 2, shall not apply to upstream pipelines solely aimed at directly connecting gas supply networks of countries of origin to a landing point within the territory of the Community, and to their upgrades.
Article 7c Designation of storage and LNG system operators Member States shall designate, or shall require natural gas undertakings which own storage or LNG facilities to designate, for a period of time to be determined by Member States having regard to considerations of efficiency and economic balance, one or more system operators.’
(8) Article 8 shall be amended as follows:
(a) paragraph 1 shall be amended as follows:
(i) point (a) shall be replaced as follows.
‘(a) operate, maintain and develop under economic conditions secure, reliable and efficient transmission, storage and/or LNG facilities to secure an open market for new entrants, with due regard to the environment ▐.’
(ii) the following point shall be inserted after point (b):
‘(ba) build sufficient interconnection capacity linking their transmission infrastructure in order to meet all reasonable demands for capacity, facilitate an efficient overall market, and fulfil the criteria for security of supply of gas;’
(b) paragraph 3 shall be replaced by the following:
‘3. Member States may, through their national regulatory authorities, require transmission system operators to comply with minimum standards for the maintenance and development of the transmission system, including interconnection capacity. National regulatory authorities should be given broader powers for the purpose of ensuring consumer protection within the European Union.’
(c) the following paragraph shall be added:
‘4a. While carrying out their tasks, transmission system operators shall take into account the codes adopted by the European Network of Transmission System Operators for Gas.’
(9) Article 9 shall be deleted. 3.12.2009 EN Official Journal of the European Union C 294 E/157
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(10) Article 10 shall be replaced by the following:
‘Article 10 Confidentiality for transmission system operators and transmission system owners 1. Without prejudice to Article 16 or any other legal duty to disclose information, each trans mission, storage and/or LNG system operator, and transmission system owners, shall preserve the confidentiality of commercially sensitive information obtained in the course of carrying out its business, and shall prevent information about its own activities which may be commercially advan tageous from being disclosed in a discriminatory manner, and in particular shall not disclose any commercially sensitive information to the remaining parts of the company, unless this is necessary for carrying out a business transaction. In order to ensure the full respect of the rules on information unbundling it must also be ensured that the transmission owner and the remaining part of the company do not use joint services, apart from purely administrative or IT functions (e.g. no joint legal service).
2. Transmission, storage and/or LNG system operators shall not, in the context of sales or purchases of natural gas by related undertakings, abuse commercially sensitive information obtained from third parties in the context of providing or negotiating access to the system. ║
3. Commercially sensitive information shall be determined by using objective and transparent criteria.’
(11) Article 12 shall be amended as follows:
(a) paragraph 1 shall be replaced by the following:
‘1. Each distribution system operator shall be responsible for ensuring the long-term ability of the system to meet reasonable demands for the distribution of gas, and for operating, maintaining and developing under economic conditions a secure, reliable and efficient distribution system in its area with due regard for the environment, and for promoting energy efficiency.’
(b) paragraph 4 shall be replaced by the following:
‘4. Each distribution system operator shall provide system users with the information they need for efficient access to and use of the system.’
(c) the following paragraphs shall be inserted after paragraph 4:
‘4a. The distribution system operator shall submit to the relevant national regulatory authority, by … (*), a proposal describing the appropriate information and communication systems to be implemented in order to provide the information referred to in paragraph 4. That proposal shall facilitate, inter alia the use of bi-directional electronic meters, which shall be rolled out to all customers by … (**) the active participation of final customers and distributed producers in system operation and the flow of real-time information between distribution and transmission system operators with the aim of optimising the use of all available production, network and demand resources.
4b. By … (***) national regulatory authorities shall approve or reject the proposals referred to in paragraph 4a. National regulatory authorities shall ensure full interoperability of the information and communication systems to be implemented. For this purpose, they may issue guidelines and may call for the amendment of the proposals referred to in paragraph 4a. C 294 E/158 EN Official Journal of the European Union 3.12.2009
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4c. Prior to notification to the distribution system operator of its decision concerning the proposal referred to in paragraph 4a, the national regulatory authority shall inform the Agency or, if the Agency is not yet in operation, the Commission thereof. The Agency or the Commission shall ensure that the information and communication systems to be implemented facilitate the development of the internal market for gas and do not introduce any new technical barriers.
______(*) One year after entry into force of Directive …/…/EC [amending Directive 2003/55/EC concerning common rules for the internal market in natural gas]. (**) Ten years after entry into force of Directive …/…/EC [amending Directive 2003/55/EC concerning common rules for the internal market in natural gas]. (***) Two years after entry into force of Directive …/…/EC [amending Directive 2003/55/EC concerning common rules for the internal market in natural gas].’
(12) The following chapters shall be inserted after Chapter IV:
‘CHAPTER IVb Independent transmission system operators Article 12a Scope The provisions of this Chapter shall apply when a Member State decides not to apply Article 7(1) in accordance with Article 7(7).
Article 12b Assets, equipment, staff and identity 1. Transmission system operators shall be equipped with all human, physical and financial resources necessary for fulfilling their obligations under this Directive and carrying out the business of gas transmission, provided that:
(a) assets that are necessary for the business of gas transmission, including the transmission network, shall be owned by the transmission system operator;
(b) personnel necessary for the business of gas transmission, including the performance of all corporate tasks, shall be employed by the transmission system operator;
(c) leasing of personnel and rendering of services, to and from any other parts of the vertically integrated undertaking shall be prohibited;
(d) appropriate financial resources for future investment projects and/or for the replacement of existing assets shall be kept available notably by the vertically integrated undertaking following an appropriate request from the transmission system operator in the framework of the annual financial plan referred to in Article 12f;
(e) transmission system operators shall not use the same external contractors or consultants as the vertically integrated undertaking and they must not share information technology systems or equipment, physical premises and security access systems.
2. The business of gas transmission shall at least include the following activities in addition to those listed in Article 8:
(a) representation of the transmission system operator and contacts in relation to third parties and the regulatory authorities;
(b) representation of the transmission system operator within the European network of trans mission system operators; 3.12.2009 EN Official Journal of the European Union C 294 E/159
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(c) granting and managing third-party access;
(d) collection of all charges related to the transmission system including the access charges, balancing charges for ancillary services such as gas treatment, purchasing of services (balancing costs, energy for losses);
(e) operation, maintenance and development of the transmission system;
(f) investment planning ensuring the long-term ability of the system to meet reasonable demand and guaranteeing security of supply;
(g) setting up appropriate joint ventures, including with one or more transmission system operators, gas exchanges, pursuing the objective to develop the creation of regional markets or to facilitate the liberalisation process;
(h) all corporate services, including legal services, accountancy and IT services.
3. Transmission system operators shall be organised in the legal form of a limited liability company as referred to in Article 1 of Directive 68/151/EEC.
4. The transmission system operator shall not, in its corporate identity, communication, branding and premises, create confusion in respect of the separate identity of the vertically integrated under taking.
5. The accounts of transmission system operators shall be audited by an auditor other than the one auditing the vertically integrated undertaking or any part of it.
Article 12c Independence of the transmission system operator 1. Without prejudice to the powers of the members of the supervisory body appointed by the vertically integrated undertaking under Article 12f, the transmission system operator shall have effective decision-making rights, independent from the vertically integrated undertaking, with respect to assets necessary to operate, maintain or develop the network. The transmission system operator shall have the power to raise money on the capital market in particular through borrowing and capital increase in the framework of the annual financial plan referred to in Article 12f.
2. Subsidiaries of the vertically integrated undertaking performing functions of production or supply shall not have any direct or indirect shareholding in the transmission system operator. The transmission system operator shall neither hold direct or indirect shares in any subsidiary of the vertically integrated undertaking performing functions of production or supply, nor receive dividends or any other financial benefit from such a subsidiary except for the revenues derived from the use of the network.
3. The overall management structure and the corporate statutes of the transmission system operator shall ensure effective independence of the transmission system operator as referred to in this Chapter. The vertically integrated undertaking shall not determine, whether directly or indirectly, the competitive behaviour of the transmission system operator in relation to the day- to-day activities of the transmission system operator and management of the network, or in relation to activities necessary for the preparation of the 10-year investment plan developed pursuant to Article 12h.
4. Any commercial and financial relations between the vertically integrated undertaking and the transmission system operator, including loans from the transmission system operator to the vertically integrated undertaking, shall be subject to market conditions. The transmission system operator shall keep detailed records of such commercial and financial relations and make them available to the national regulatory authority on request. C 294 E/160 EN Official Journal of the European Union 3.12.2009
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5. The transmission system operator shall submit to the national regulatory authority all commercial and financial agreements with the vertically integrated undertaking.
6. The transmission system operator shall inform the national regulatory authority of the available financial resources referred to in Article 12b(1)(d).
7. An undertaking which has been certified by the national regulatory authority as complying with the requirements of this Chapter shall be approved and designated as a transmission system operator by the Member State concerned. The certification procedure in Article 7b shall be applicable.
8. Transparency shall be mandatory to ensure non-discrimination, in particular in relation to references for tariffs, third-party access services, capacity allocation and balancing. Vertically inte grated undertaking shall be required to refrain from any activities that impede the transmission system operators in fulfilment of those obligations.
Article 12d Independence of staff and management of the transmission system operator 1. Decisions regarding appointment and renewal, working conditions including remuneration and termination of the term of office of the persons responsible for the management and/or members of the administrative bodies of the transmission system operator shall be taken by the supervisory body of the transmission system operator appointed in accordance with Article 12f.
2. The identity and the conditions governing the term, the duration and the termination of office of the persons nominated by the supervisory body for appointment or renewal as persons responsible for the management and/or as members of the administrative bodies of the transmission system operator, and the reasons for any proposed decision terminating such term of office, shall be notified to the national regulatory authority. Those conditions and the decisions referred to in paragraph 1 shall become binding only if, within a period of three weeks after notification, the national regulatory authority has not objected to them. The national regulatory authority may object if serious doubts arise as to the professional independence of a nominated person responsible for the management and/or member of the administrative bodies, or in the case of premature termination of his/her term of office, if serious doubts exist regarding its justification.
3. The persons responsible for the management and/or the members of the administrative bodies of the transmission system operator appointed by the supervisory body shall hold no professional position or responsibility, interest or business relationship, directly or indirectly, in or with the vertically integrated undertaking or any part of it or its controlling shareholders other than the transmission system operator for a period of five years before their appointment.
4. The persons responsible for the management and/or members of the administrative bodies, and employees of the transmission system operator shall hold no other professional position or responsibility, interest or business relationship, directly or indirectly, in or with any part of the vertically integrated undertaking or with its controlling shareholders.
5. The persons responsible for the management and/or members of the administrative bodies, and employees of the transmission system operator shall hold no interest in or receive financial benefit from any part of the vertically integrated undertaking, whether directly or indirectly, other than the transmission system operator. Their remuneration shall not depend on activities or results of the vertically integrated undertaking other than those of the transmission system operator. 3.12.2009 EN Official Journal of the European Union C 294 E/161
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6. Effective rights of appeal to the national regulatory authority shall be guaranteed for any complaints by the persons responsible for the management and/or members of the administrative bodies of the transmission system operator against premature terminations of their term of office.
7. After termination of their term of office in the transmission system operator, the persons responsible for its management and/or members of its administrative bodies shall have no profes sional position or responsibility, interest or business relationship, directly or indirectly, in or with any part of the vertically integrated undertaking other than the transmission system operator, or its controlling shareholders for a period of no less than five years.
Article 12e Trustee 1. An independent Trustee shall be appointed by the national regulatory authority on the proposal and at the expense of the vertically integrated undertaking. The Trustee shall act exclusively in the legitimate interest of the vertically integrated undertaking in the preservation of the asset value of the transmission system operator, while safeguarding the independence of the transmission system operator from the vertically integrated undertaking. In the exercise of its functions, the Trustee shall have no regard to the interest of the production and supply business of the vertically integrated undertaking.
2. The Trustee shall have no professional position or responsibility, interest or business rela tionship, directly or indirectly, in or with the vertically integrated undertaking or any part thereof, its controlling shareholders, or any undertaking performing functions of production or supply, for a period of five years before its appointment.
The terms of the mandate of the Trustee, including the duration, the conditions for termination and the financial conditions, shall be subject to approval by the national regulatory authority.
During its mandate, the Trustee may have no other professional position or responsibility, interest or business relationship, directly or indirectly, in or with any part of the vertically integrated undertaking or with its controlling shareholders.
Following termination of the mandate, the Trustee shall have no professional position or respon sibility, interest or business relationship, directly or indirectly, in or with any part of the vertically integrated undertaking or its controlling shareholders for a period of no less than five years.
3. The Trustee shall be responsible for:
(a) the appointment, renewal and dismissal of the members, other than those referred to in Article 12f(2)(a), of the supervisory body of the transmission system operator; and
(b) the exercise of its voting rights in the supervisory body.
Article 12f Supervisory body 1. The transmission system operator shall have a supervisory body which shall be in charge of taking decisions which may have a significant impact on the value of the assets of the shareholders within the transmission system operator, in particular decisions regarding the approval of the annual financial plan, the level of indebtedness of the transmission system operator and the amount of dividends distributed to shareholders. C 294 E/162 EN Official Journal of the European Union 3.12.2009
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2. The supervisory body shall be composed of:
(a) members representing the vertically integrated undertaking,
(b) members representing third-party shareholders,
(c) members representing the transmission system operator,
(d) the Trustee, and
(e) where the relevant legislation of a Member State so provides, members representing other interested parties such as employees of the transmission system operator.
3. Article 12d(2) to (7) shall apply to the members of the supervisory body.
4. The Trustee shall have the right of veto with respect to decisions that in his/her view may significantly reduce the asset value of the transmission system operator. When assessing whether a decision may significantly reduce the value of the assets, the annual financial plan and the amount of debts of the transmission system operator shall be of particular importance. In the event that two thirds of the members of the supervisory body overrule such veto, Article 12h(7) shall apply.
Article 12g Compliance programme and compliance officer 1. Member States shall ensure that transmission system operators establish and implement a compliance programme which sets out the measures taken in order to ensure that discriminatory conduct is excluded, and ensure that the compliance with this programme is adequately monitored. The programme shall set out the specific obligations of employees to meet this objective. It shall be subject to approval by the national regulatory authority. Without prejudice to the powers of the national regulatory authority, compliance with the programme shall be independently monitored by the compliance officer.
2. The supervisory body shall appoint a compliance officer. The compliance officer may be a natural or legal person. Article 12d(2) to (7) shall apply to the compliance officer. The national regulatory authority may object to the appointment of a compliance officer for reasons of lack of independence or professional capacity.
3. The compliance officer shall be in charge of:
(a) monitoring the implementation of the compliance programme;
(b) elaborating an annual report, setting out the measures taken in order to implement the compliance programme and submitting it to the national regulatory authority;
(c) reporting to the supervisory body and issuing recommendations on the compliance programme and its implementation;
(d) reporting to the national regulatory authority on any commercial and financial relations between the vertically integrated undertaking and the transmission system operator.
4. The compliance officer shall submit the proposed decisions on the investment plan or on individual investments in the network to the national regulatory authority. Such decisions shall be submitted no later than when the management and/or the competent administrative body of the transmission system operator submit them to the supervisory body. 3.12.2009 EN Official Journal of the European Union C 294 E/163
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5. The compliance officer shall notify the national regulatory authority in the event that the vertically integrated undertaking, in the general assembly or through the vote of the members of its supervisory body, has prevented the adoption of a decision with the effect of preventing or delaying investments in the network.
6. The conditions governing the mandate or the employment conditions of the compliance officer shall be subject to the approval of the national regulatory authority and shall ensure the inde pendence of the compliance officer.
7. The compliance officer shall regularly report, either orally or in writing, to the national regulatory authority and shall have the right regularly to report, either orally or in writing, to the supervisory body of the transmission system operator.
8. The compliance officer may attend all meetings of the management or administrative bodies of the transmission system operator and those of the supervisory body and the general assembly. The compliance officer shall attend all meetings that address the following matters:
(a) conditions for access to the network, as defined in Regulation (EC) No 1775/2005, in particular regarding tariffs, third-party access services, capacity allocation and congestion management, transparency, balancing and secondary markets;
(b) projects undertaken in order to operate, maintain and develop the transmission system, including investments in new transport connections, in expansion of capacity and in opti misation of existing capacity;
(c) energy purchases or sales necessary for the operation of the transmission system.
9. The compliance officer shall monitor the compliance of the transmission system operator with Article 10.
10. The compliance officer shall have access to all relevant data and to the offices of the transmission system operator and to all the information necessary for the fulfilment of its task.
11. After prior approval by the national regulatory authority, the supervisory body may dismiss the compliance officer.
12. Obligations of the transmission system operator and vertically integrated undertaking in particular for commercial and financial agreements between transmission system operator and vertically integrated undertaking should only be notified to the national regulatory authority without the need for approval. The appointment and working conditions of management and of the compliance officer shall be notified to the national regulatory authority without the need for approval.
Article 12h Network development and powers to make investment decisions 1. Every year, transmission system operators shall submit to the national regulatory authority a 10-year network development plan based on existing and forecast supply and demand after having consulted all the relevant stakeholders. The plan shall contain efficient measures in order to guarantee the adequacy of the system and the security of supply. C 294 E/164 EN Official Journal of the European Union 3.12.2009
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2. The 10-year network development plan shall in particular:
(a) indicate to market participants the main transmission infrastructures that need to be built or upgraded over the next ten years;
(b) contain all the investments already decided and identify new investments which have to be executed in the next three years;
(c) provide for a time frame for all investment projects.
3. When elaborating the 10-year network development plan, the transmission system operator shall make reasonable assumptions about the evolution of its production, supply, consumption and exchanges with other countries, taking into account investment plans for regional and EU-wide networks, as well as investment plans for storage and LNG regasification facilities.
4. The national regulatory authority shall consult all actual or potential network users on the 10-year network development plan in an open and transparent manner. Persons or undertakings claiming to be potential users may be required to substantiate such claims. It shall publish the result of the consultation process, in particular possible needs for investments.
5. The national regulatory authority shall examine whether the 10-year network development plan covers all investment needs identified during the consultation process, and whether it is consistent with the Community-wide 10-year network development plan referred to in Article 2c(1) of Regulation (EC) No 1775/2005. If any doubt arises as to the consistency with the Community-wide 10-year network development plan, the national regulatory authority shall consult the Agency. The national regulatory authority may require the transmission system operator to amend its plan.
6. The national regulatory authority shall monitor and evaluate the implementation of the 10- year network development plan.
7. In circumstances where the transmission system operator, other than for overriding reasons beyond its control, does not execute an investment, which, according to the 10-year network devel opment plan, was supposed to be executed in the following three years, Members States shall ensure that the national regulatory authority has the obligation to take at least one of the following measures to ensure that the investment in question is made:
(a) require the transmission system operator to execute the investments in question in coherence with the annual financial plan referred to in Article 12f, or,
(b) organise a tender procedure open to any investors for the investment in question.
When the national regulatory authority has made use of its powers under point (b), it may require the transmission system operator to accept any of the following:
(a) third-party financing,
(b) third-party construction,
(c) building the respective new assets, or
(d) operating the respective new asset.
The transmission system operator shall provide the investors with all information needed to realise the investment, connect new assets to the transmission network and generally make its best efforts to facilitate the implementation of the investment project.
The relevant financial arrangements shall be subject to approval by the national regulatory authority. 3.12.2009 EN Official Journal of the European Union C 294 E/165
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8. In the event that the national regulatory authority makes use of its powers under paragraph 7, the relevant tariff regulations shall cover the costs of the investments in question.
Article 12i Decision-making powers regarding the connection of storage facilities, LNG regasification facilities and industrial consumers to the transmission network 1. Transmission system operators shall establish and publish transparent and efficient procedures and tariffs for non-discriminatory connection of storage facilities, LNG regasification facilities and industrial consumers to the network. The procedures shall be subject to approval by the national regulatory authority.
2. Transmission system operators shall not be entitled to refuse the connection of a new storage facility, LNG regasification facility or industrial consumer on the grounds of possible future limi tations to available network capacities or additional costs linked with necessary capacity increase. The transmission system operator shall ensure sufficient entry and exit capacity for the new connection.
3. Transmission system operators shall grant and manage third-party access to the network, especially the access for new market operators and producers of biogas with respect to the safety rules of the network.
CHAPTER IVb Article 12j Revision clause 1. The Agency shall, by … (*), submit to the European Parliament and Council, a detailed report outlining the extent to which the unbundling requirements under this Directive have been successful in ensuring full and effective independence of transmission system operators.
2. For the purpose of its assessment under paragraph 1, the Agency shall take into account in particular the following criteria: fair and non-discriminatory network access, effective regulation, the development of the network, investments and undistorted incentives to invest, the development of interconnection infrastructure, and the security of supply situation in the Community.
3. The Commission shall, by … (*), submit to the European Parliament and the Council, a detailed report outlining the feasibility of creating a single European transmission system operator and analyse the costs and benefits with respect, notably, to property rights, market inte gration as well as the effective and secure operation of the transmission network. The report shall be drafted in consultation with the stakeholders in particular the transmission system operators and the Agency.
4. Where appropriate, and in particular in the event that the detailed report referred to in paragraph 1 determines that the conditions referred to in paragraph 2 have not been guaranteed in practice, the Commission shall submit proposals to the European Parliament and the Council to ensure full and effective independence of transmission system operators by … (**).
______(*) Five years after entry into force of Directive …/…/EC [amending Directive 2003/55/EC concerning common rules for the internal market in natural gas]. (**) Seven years after entry into force of Directive …/…/EC [amending Directive 2003/55/EC concerning common rules for the internal market in natural gas].’ C 294 E/166 EN Official Journal of the European Union 3.12.2009
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(13) Article 13 shall be amended as follows:
(a) in paragraph 2(c), the following sentence shall be inserted after the first sentence:
‘In order to fulfill these tasks, the distribution system operator shall have at its disposal the necessary resources including human, technical, financial and physical.’
(b) paragraph 2(d) shall be amended as follows:
(i) the last sentence shall be replaced by the following:
‘An annual report, setting out the measures taken, shall be submitted by the person or body responsible for monitoring the compliance programme, hereinafter referred to as “compliance officer”, to the national regulatory authority referred to in Article 24a(1) and shall be published.’
(ii) the following sentence shall be added:
‘The compliance officer shall be fully independent and shall have access to all the necessary information of the distribution system operator and any affiliated companies to fulfil his task.’
(c) the following paragraph shall be added:
‘3. Where the distribution system operator is part of a vertically integrated undertaking, Member States shall ensure that the activities of the distribution system operator is monitored so that it cannot take advantage of its vertical integration to distort competition. In particular, vertically integrated distribution system operators shall not, in their communication and branding, create confusion in respect of the separate identity of the supply branch of the vertically integrated undertaking.’
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(14) Article 15 shall be replaced by the following:
‘Article 15 Combined operator This directive shall not prevent the operation of a combined transmission, LNG, storage and distribution system operator provided it complies, for each of its activities, with the applicable provisions of Article 7 ║ and Article 13(1).’
(15) The following article shall be inserted after Article 18:
‘Article 18a Access to LNG facilities 1. For the organisation of access to LNG facilities either the regulated access procedure, or the negotiated access procedure referred to in paragraph 2 shall apply. These procedures shall operate in accordance with objective, transparent and non-discriminatory criteria. National regulatory authorities shall observe compliance with these criteria.
Member States shall decide on the applicable access procedure based on defined and published criteria. These criteria will notably address if competition between LNG facilities takes place in the relevant market, and if the access to LNG is arranged through an independent infrastructure operator that provides open access. National regulatory authorities shall monitor compliance with these criteria and make public, or require LNG operators to make public which LNG facilities, or which parts thereof, are offered under the negotiated access procedure referred to in paragraph 2. 3.12.2009 EN Official Journal of the European Union C 294 E/167
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2. In the event of negotiated access, Member States shall take the necessary measures for natural gas undertakings and eligible customers either inside or outside the territory covered by the inter connected system to be able to negotiate access to LNG facilities. The parties shall be required to negotiate access to LNG facilities in good faith.’
(16) Article 19 shall be replaced by the following:
‘Article 19 Access to storage 1. For the organisation of access to storage facilities when technically and/or economically necessary for providing efficient access to the system for the supply of customers, Member States shall decide if they choose either the regulated access procedure as described in paragraph 4, or the negotiated access procedure referred to in paragraph 3. These procedures shall operate in accordance with objective, transparent and non-discriminatory criteria. National regulatory authorities shall observe compliance with these criteria.
National regulatory authorities shall define and publish criteria according to which the access regime to storage facilities may be determined, notably addressing if competition between storage facilities takes place in the relevant market, and if such organisation is arranged through an independent infrastructure operator that provides open access. National regulatory authorities shall monitor compliance with these criteria and make public, or oblige storage operators to make public which storage facilities, or which parts of those storage facilities are offered under the different procedures referred to in paragraphs 3 and 4.
2. The provisions of paragraph 1 shall not apply to ancillary services and temporary storage that are related to LNG facilities and are necessary for the regasification process and subsequent delivery to the transmission system.
3. In the case of negotiated access, national regulatory authorities shall take the necessary measures for natural gas undertakings and eligible customers either inside or outside the territory covered by the interconnected system to be able to negotiate access to storage, when technically and/or economically necessary for providing efficient access to the system. The parties shall be obliged to negotiate access to storage in good faith.
Contracts for access to storage shall be negotiated with the relevant storage system operator. National regulatory authorities shall require storage system operators to publish their main commercial conditions for the use of storage within the first six months following implementation of this Directive and on an annual basis every thereafter. The development of these conditions shall take into consideration the views of system users, who have the right to object to them to the national regulatory authority.
4. In the case of regulated access, national regulatory authorities shall take the necessary measures to give natural gas undertakings and eligible customers either inside or outside the territory covered by the interconnected system a right to access to storage on the basis of published tariffs and/or other terms and obligations for use of that storage, when technically and/or economically necessary for providing efficient access to the system. The development of these tariffs and other terms and obligations shall take into consideration the views of system users, who have the right to object to them to the national regulatory authority. This right of access for eligible customers may be given by enabling them to enter into supply contracts with competing natural gas undertakings other than the owner and/or operator of the system or a related under taking.’ C 294 E/168 EN Official Journal of the European Union 3.12.2009
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(17) Article 22 is replaced by the following:
‘Article 22 New infrastructure 1. Major new gas infrastructures, i.e. interconnectors between Member States, LNG and storage facilities, may, upon request, be exempted, for a defined period of time, from the provisions of Articles 7, 18, 19 and 20, and Article 24c(4), (5) and (7) under the following conditions:
(a) the investment must enhance competition in gas supply and enhance security of supply;
(b) the level of risk attached to the investment is such that the investment would not take place unless an exemption was granted;
(c) the infrastructure must be owned by a natural or legal person which is separate at least in terms of its legal form from the system operators in whose systems that infrastructure will be built;
(d) charges are levied on users of that infrastructure;
(e) the exemption is not detrimental to competition or the effective functioning of the internal gas market, or the efficient functioning of the regulated system to which the infrastructure is connected;
(f) the project is of an European interest and crosses at least one national border within the European Union.
2. Paragraph 1 shall apply also to all significant increases of capacity in existing infrastructures and to modifications of such infrastructures which enable the development of increased and additional quantities.
3. The national regulatory authority referred to in Chapter VIa may, on a case by case basis, decide on the exemptions referred to in paragraphs 1 and 2. Where the infrastructure in question is located in the territory of more than one Member State, the Agency shall exercise the tasks conferred on the national regulatory authority by the present Article. The Agency's decision shall be subject to prior consultation of the relevant national regulatory authorities and the applicant.
An exemption may cover all or only certain specific parts of, the capacity of the new infrastructure, or of the existing infrastructure with significantly increased capacity.
In deciding to grant an exemption consideration shall be given, on a case by case basis, to the need to impose conditions regarding the duration of the exemption and non-discriminatory access to the infrastructure. When deciding on those conditions account shall, in particular, be taken of the addi tional capacity to be built or the modification of existing capacity, the time horizon of the project and national circumstances.
Before granting an exemption the national regulatory authority shall decide upon the rules and mechanisms for management and allocation of capacity, which may, if necessary, be amended during the period in which the infrastructure is exempted from the abovementioned provisions, in order to make adjustments to economic and market-relevant needs. The rules shall require that all potential users of the infrastructure are invited to indicate their interest in contracting capacity before capacity allocation in the new infrastructure, including for own use, takes place. The national regulatory authority shall require congestion management rules to include the obligation to offer unused capacity on the market, and shall require users of the facility to be entitled to trade their contracted capacities on the secondary market. In its assessment of the criteria referred to in paragraph 1(a), (b) and (e) ║, the national regulatory authority shall take into account the results of that capacity allocation procedure, where third parties have indicated a firm commitment. 3.12.2009 EN Official Journal of the European Union C 294 E/169
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The exemption decision, including any conditions referred to in the second subparagraph, shall be duly reasoned and published.
4. The national regulatory authority shall transmit to the Commission without delay a copy of every request for exemption as of its receipt. The decision shall be notified, without delay, by the competent authority to the Commission, together with all the relevant information with respect to the decision. This information may be submitted to the Commission in aggregate form, enabling the Commission to reach a well-founded decision. In particular, the information shall contain:
(a) the detailed reasons on the basis of which the national regulatory authority granted or refused the exemption together with the reference to the specific Article on which such decision is based, including the financial information justifying the need for the exemption;
(b) the analysis undertaken of the effect on competition and the effective functioning of the internal gas market resulting from the grant of the exemption;
(c) the reasons for the time period and the share of the total capacity of the gas infrastructure in question for which the exemption is granted;
(d) in case the exemption relates to an interconnector, the result of the consultation with the regu latory authorities concerned;
(e) the contribution of the infrastructure to the diversification of gas supply.
5. Within two months after receiving a notification, the Commission may take a decision requiring the national regulatory authority to amend or revoke the decision to grant an exemption. That period shall begin on the day following the receipt of the notification. The two month period may be extended by two additional months where additional information is sought by the Commission. That additional period shall begin on the day following the receipt of the complete additional information. The two month period can also be extended with the consent of both the Commission and the national regulatory authority. Where the requested information is not provided within the period set out in the request, the notification shall be deemed to be withdrawn unless, before the expiry of that period, either the period has been extended with the consent of both the Commission and the national regulatory authority, or the national regulatory authority, in a duly reasoned statement, has informed the Commission that it considers the notification to be complete.
The national regulatory authority shall comply with the Commission decision to amend or revoke the exemption decision within a period of four weeks and shall inform the Commission accordingly.
The Commission shall preserve the confidentiality of commercially sensitive information.
The Commission's ▐ exemption decision shall lose its effect ▐ if the infrastructure has not become operational five years after all national and regional decisions and authorisations have been issued, unless the delay is due to circumstances beyond control of the person to whom the exemption has been granted.
6. The exemptions referred to in paragraph 1 shall automatically apply to exemptions granted pursuant to this Article on … (*) The conditions of an exemption approval granted under this Article shall not be changed retrospectively without the agreement of all parties concerned.
______(*) Date of entry into force of Directive …/…/EC [amending Directive 2003/55/EC concerning common rules for the internal market in natural gas].’ C 294 E/170 EN Official Journal of the European Union 3.12.2009
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(18) The following chapter shall be inserted after Article 24:
‘CHAPTER VIa NATIONAL REGULATORY AUTHORITIES
Article 24a Designation and independence of regulatory authorities 1. Each Member State shall designate a single national regulatory authority.
2. Each Member State shall guarantee the independence of the national regulatory authority and shall ensure that it exercises its powers impartially and transparently. For this purpose, Member State shall ensure that, when carrying out the regulatory tasks conferred upon it by this Directive and other relevant legislation, the national regulatory authority is legally distinct and functionally independent from any other public or private entity, and that its staff and the persons responsible for its management act independently from any market interest and shall not seek or take direct instructions from any government or other public or private entity when carrying out the regulatory tasks…
3. In order to protect the independence of the national regulatory authority, Member States shall in particular ensure that:
(a) the national regulatory authority has legal personality, financial autonomy, and adequate human and financial resources to carry out its duties;
(b) the members of the management board of the national regulatory authority are appointed for a non-renewable fixed term of at least five years but for no more than seven years and that for the first mandate, that term shall be two-and-a-half years for half of the members. The members shall be relieved from office during their term only if they no longer fulfil the conditions set out in this Article or if they have been guilty of serious misconduct under national law; and
(c) the budgetary needs of the national regulatory authority are covered by the direct revenues from energy market operations.
Article 24b Policy objectives of the national regulatory authority In carrying out the regulatory tasks specified in this Directive, the national regulatory authority shall take all reasonable measures to achieve the following objectives:
(a) the promotion, in close cooperation with the Commission, the Agency, and the national regulatory authorities of other Member States ║, of a competitive, secure and environmentally sustainable internal gas market within the Community, and effective market opening for all consumers and suppliers in the Community, and ensuring that energy supply networks operate in an effective, reliable way, taking in to account long term objectives;
(b) the development of competitive and properly functioning▐ markets within the Community in view of the achievement of the objective mentioned in point (a);
(c) the suppression of any restrictions to natural gas trade between Member States, including the development of appropriate cross border transmission capacities to meet demand and enhance the integration of national markets so as to facilitate unrestrained natural gas flow across the Community; 3.12.2009 EN Official Journal of the European Union C 294 E/171
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(d) the development , in the most cost effective way, of customer-orientated, secure, reliable and efficient network systems, promoting▐ system adequacy whilst ensuring energy efficiency and integration of large and small-scale renewable energy (e.g. biogas) and distributed production in both transmission and distribution networks;
(e) facilitating the access to the network, in particular removing barriers that could prevent access for new market entrants and renewable energies;
(f) ensuring that network operators are granted adequate incentives, in both the short and the long term, to increase efficiencies in network performance and foster market integration;
(g) ensuring that customer benefits through the efficient functioning of their national market, ensuring consumer protection and promoting effective competition in cooperation with competition authorities;
(h) contributing towards high standards of public service for natural gas and the protection of vulnerable customers, and helping to ensure that consumer protection measures set out in Annex A are effective;
(i) harmonising necessary data exchange processes.
Article 24c Duties and powers of the national regulatory authority 1. The national regulatory authority shall have the following duties to be carried out where appro priate in close consultation with other relevant Community or national bodies, transmission system operators and other market stakeholders and without prejudice to their specific competencies:
(a) ensuring compliance of transmission and distribution system operators, and where relevant system owners, as well as ║ any natural gas undertakings, with their obligations under this Directive and other relevant Community legislation, including as regards cross border issues;
(b) cooperating on cross-border issues with the national regulatory authority or authorities of other Member States and the Agency, including ensuring that there is sufficient interconnection capacity between transmission infrastructure to satisfy an efficient overall market assessment and security of supply criteria, without discrimination between supply undertakings in different Member States;
(c) complying with, and implementing, any relevant binding decisions of the Commission and of the Agency ║;
(d) reporting annually on its activities and the fulfilment of its duties to the Commission, the relevant authorities of the Member States and the Agency ║. Such reports shall cover the steps taken and the results obtained as regards each of the tasks listed in this Article;
(e) monitoring compliance with unbundling requirements under this Directive and other relevant Community legislation and ensuring that there are no cross subsidies between transmission, distribution, storage, LNG and supply activities as well as ensuring that distribution and trans mission tariffs are set well in advance of the relevant periods during which they apply;
(f) reviewing the investment plans of the transmission system operators, and providing in its annual report an assessment of the investment plan of the transmission system operators as regards its consistency with the European-wide 10-year network development plan mentioned in Article 2c of Regulation (EC) No 1775/2005; the investment plans of transmission system operators shall ensure that the skills and number of the staff are sufficient to meet the service obligations; failure to honour the investment plan shall result in proportionate sanctions imposed on the transmission system operator in accordance with the guidelines issued by the Agency; C 294 E/172 EN Official Journal of the European Union 3.12.2009
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(g) approving the annual investment plans of the transmission system operators;
(h) monitoring compliance with network security and reliability, setting or approving standards and requirements for quality of service and supply and reviewing performances for quality of service and supply, network security and reliability rules;
(i) monitoring the level of transparency, ensuring compliance of network operators with trans parency obligations;
(j) monitoring the level of market opening and competition at wholesale and retail levels, including on natural gas exchanges, household prices, switching rates, disconnection rates and household complaints in an agreed format, as well as any distortion or restriction of competition in coop eration with national competition authorities, including providing any relevant information, bringing any relevant cases to the attention of the relevant competition authorities;
(k) monitoring the occurrence of restrictive contractual practices, including exclusivity provisions, which may prevent or restrain the choice of non-household customers from contracting simul taneously with more than one supplier and, where appropriate, informing the national competition authorities of such practices;
(l) with full regard to the provisions of the Treaty, promoting agreements on a long-term basis between energy consumers and suppliers that contribute to the improvement of the energy production and distribution and, at the same time, allow consumers to share the resulting benefits, provided that such agreements can contribute to an optimal level of investment in the energy sector;
(m) monitoring the time taken by transmission and distribution undertakings to make connections and repairs and imposing sanctions in accordance with the guidelines issued by the Agency if these time periods are exceeded without due cause;
(n) monitoring▐ the access conditions to storage facilities and other ancillary services as provided for in Article 19;
(o) without prejudice to the competence of other national regulatory authorities, ensuring high standards of public service for natural gas, the protection of vulnerable customers, and that consumer protection measures set out in Annex A are effective and enforced;
(p) publishing, at least annually, recommendations ║ on compliance of supply tariffs with Article 3; due attention shall be paid in those recommendations to the impact on the functioning of the market of regulated prices (wholesale and end-users’ prices);
(q) ensuring effective and equal access to customer consumption data including data on prices and any related expenditure for all market participants, the application of an easily understandable harmonised format for such consumption data, adequate prepayment that reflects the actual consumption and prompt access for all customers to such data under point (h) of Annex A;
(r) monitoring the implementation of rules relating to the roles and responsibilities of transmission system operators, distribution system operators, suppliers and customers and other market parties pursuant to Article 8b of Regulation (EC) No 1775/2005;
(s) fixing or approving network access tariffs and publishing the methodology used to set the tariffs;
(t) ensuring the transparency of wholesale fluctuations in prices;
(u) monitoring the correct application of the criteria that determine whether a storage facility falls under Article 19(3) or ║ (4). 3.12.2009 EN Official Journal of the European Union C 294 E/173
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║
2. Member States shall ensure that national regulatory authorities are granted the powers enabling them to carry out the duties referred to in paragraph 1 ║ in an efficient and expeditious manner. For this purpose, the national regulatory authority shall, inter alia, have ║ the power to:
(a) ║ issue binding decisions on gas undertakings;
(b) ║ carry out in cooperation with the national competition authority investigations of the func tioning of gas markets, and to decide on any appropriate measures necessary and proportionate to promote effective competition and ensure the proper functioning of the market, including gas release programmes;
(c) ║ request any information from natural gas undertakings relevant for the fulfilment of its tasks;
(d) ║ impose effective, appropriate and dissuasive sanctions to natural gas undertakings not complying with their obligations under this Directive or any decisions of the national regulatory authority or of the Agency, or propose to a competent body to impose such sanctions; furthermore, to impose, or to propose to impose fines of up to 10 % of the yearly turnover of the transmission system operator on the transmission system operator or on the vertically integrated undertaking, as the case may be, for non-compliance with their respective obligations pursuant to this Directive;
(e) ║ have appropriate rights of investigations, and relevant powers of instructions for dispute settlement under paragraphs 8 and 9;
(f) undertake approve safeguards measures as referred to in Article 26.
3. In addition to the tasks and powers conferred on it under paragraphs 1 and 2, when a transmission system operator has been designated in accordance with Chapter IVa, the national regulatory authority shall, inter alia, be granted the following tasks and powers:
(a) to impose sanctions including fines accordance with paragraph 2(d) for discriminatory behaviour in favour of the vertically integrated undertaking;
(b) to monitor communications between the transmission system operator and the vertically inte grated undertaking so as to ensure compliance of the transmission system operator with its obligations;
(c) to act as a dispute settlement authority between the vertically integrated undertaking and the transmission system operator in respect of any complaint submitted pursuant to paragraph 8;
(d) to monitor commercial and financial relations including loans between the vertically integrated undertaking and the transmission system operator,
(e) to monitor all commercial and financial agreements on the condition that they comply with market conditions;
(f) to request justification from the vertically integrated undertaking when notified by the compliance officer in accordance with Article 12g(4). Such justification shall in particular include evidence to the end that no discriminatory behaviour to the advantage of the vertically integrated undertaking has occurred;
(g) to carry out inspections on the premises of the vertically integrated undertaking and the trans mission system operator; C 294 E/174 EN Official Journal of the European Union 3.12.2009
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(h) to request any information from the transmission system operator and to directly contact all staff of the transmission system operator; if doubts remain, the same rights shall apply for the vertically integrated undertaking and its subsidiaries;
(i) to conduct all necessary inspections of the transmission system operator and, if doubts remain, of the vertically integrated undertaking and its subsidiaries; the rules of Article 20 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (*) shall apply;
(j) to impose effective, appropriate and dissuasive sanctions to the transmission system operator and/or the vertically integrated undertaking not complying with their obligations under this Article or any decisions of the national regulatory authority; that power shall include the right to:
(i) impose effective, appropriate and dissuasive fines related to the turnover of the transmission system operator or the vertically integrated undertaking;
(ii) issue orders to remedy discriminatory behaviour;
(iii) withdraw, at least partly, the licence of the transmission system operator in case of repeated breach of the unbundling provisions set out in this Article.
4. The national regulatory authorities shall be responsible for fixing or approving prior to their entry into force the terms and conditions for:
(a) connection and access to national networks, including transmission and distribution tariffs and methodologies for their calculation, or alternatively, the methodologies and their monitoring for setting or approving the transmission and distribution tariffs, and terms, conditions and tariffs for access to LNG facilities including methodologies for their calculation, or alternatively, the methodologies and their monitoring for setting or approving the tariffs for access to LNG facilities. These tariffs shall reflect the actual costs incurred, insofar as such costs correspond to those of an efficient operator and shall be transparent. They shall allow the necessary investments in the networks and LNG facilities to be carried out in a manner allowing these investments to ensure the viability of the networks and LNG facilities. These tariffs shall not discriminate against new entrants;
(b) the provision of balancing services which shall reflect the cost and shall be revenue neutral to the extent possible, whilst providing appropriate incentives for network users to balance their input and offtakes; they shall be fair and non-discriminatory and based on objective criteria;
(c) the access to cross-border infrastructures, including the procedures for the allocation of capacity and congestion management. They shall have the authority to require the transmission system operators, to modify those terms and conditions.
5. In fixing or approving the terms and conditions or methodologies for calculation of the tariffs, and the balancing services, the national regulatory authorities shall ensure that network operators are granted adequate incentive, over both the short and long term, to increase efficiencies, foster market integration, ensure security of supply, and support the related research activities.
6. The national regulatory authorities shall monitor congestion management within national gas transmission networks.
Transmission system operators shall submit their congestion management procedures, including capacity allocation, to the national regulatory authorities for approval. National regulatory authorities may request amendments to those procedures before approving them. 3.12.2009 EN Official Journal of the European Union C 294 E/175
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7. National regulatory authorities shall have the authority to require transmission,▐ LNG and distribution system operators, if necessary, to modify the terms and conditions, including tariffs referred to in this Article, to ensure that they are proportionate and applied in a non-discriminatory manner.
8. Any party having a complaint against a transmission, LNG, storage or distribution system operator may refer the complaint to the national regulatory authority which, acting as dispute settlement authority, shall issue a decision within two months after receipt of the complaint. That period may be extended by two months where additional information is sought by the national regulatory authorities. This period may be extended with the agreement of the complainant. The national regulatory authority's decision shall have binding effect unless and until overruled on appeal.
9. Any party who is affected and who has a right to complain concerning a decision on method ologies taken pursuant to this Article or, where the national regulatory authority has a duty to consult, concerning the proposed tariffs and methodologies, may, at the latest within two months, or a shorter time period as provided by Member States, following publication of the decision or proposal for a decision, submit a complaint for review. Such a complaint shall not have suspensive effect.
10. Member States shall create appropriate and efficient mechanisms for▐ control and transparency so as to avoid any abuse of a dominant position, in particular to the detriment of consumers, and any predatory behaviour. These mechanisms shall take account of the provisions of the Treaty, and in particular Article 82 thereof.
11. The national regulatory authorities shall put in place independent complaints services and alternative redress schemes such as an independent energy ombudsman or a consumer body. Those services or schemes shall be responsible for the efficient treatment of complaints and shall comply with best practice criteria. The national regulatory authorities shall set standards and guidelines on how complaints will be handled by producers and network operators.
12. Member States shall ensure that the appropriate measures are taken, including administrative action or criminal proceedings inconformity with their national law, against the natural or legal persons responsible where confidentiality rules imposed by this Directive have not been respected.
13. Complaints referred to in paragraphs 8 and 9 shall be without prejudice to the exercise of rights of appeal under Community and national law.
14. Decisions taken by national regulatory authorities shall be fully reasoned and available to the public to allow for legal scrutiny.
15. Member States shall ensure that suitable mechanisms exist at national level under which a party affected by a decision of the national regulatory authority has a right of appeal national judicial body or other independent national authority independent of the parties involved and of any government.
▐
Article 24d Regulatory regime for cross-border issues 1. National regulatory authorities shall closely cooperate and consult with each other, and shall provide each other and the Agency with any information necessary for the fulfilment of their tasks under this Directive. In respect of the information exchanged, the receiving authority shall ensure the same level of confidentiality as that required of the originating authority. C 294 E/176 EN Official Journal of the European Union 3.12.2009
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2. In order to ensure that where regional gas markets occur integration is mirrored by adequate regulatory structures, the national regulatory authorities concerned shall ensure, in close cooperation with and under the guidance of the Agency, that at least the following regulatory tasks are performed in relation to their regional markets:
(a) cooperation at least at a regional level to foster the creation of operational arrangements in order to ensure an optimal management of the network, develop joint gas exchanges and the allocation of cross-border capacity, and to ensure an adequate level of interconnection capacity including through new interconnection, within the region and between regions to allow for the devel opment of effective competition and the improvement of security of supply;
(b) harmonisation at least at the relevant regional level of all technical and market codes for the relevant transmission system operators and other market actors;
(c) harmonisation of the rules governing the management of congestion;
(d) adoption of rules to ensure that the owners and/or managers of gas exchange(s) which operate the relevant regional pool markets are fully independent of the owners and/or managers of production assets.
National regulatory authorities shall have the right to enter into agreements with each other to foster regulatory cooperation and the actions referred to in first subparagraph shall be carried out, as appropriate, in close consultation with other relevant national authorities and without prejudice to their specific competencies.
3. The Agency shall decide upon the regulatory regime for infrastructure connecting at least two Member States:
(a) upon a joint request from the competent national regulatory authorities; or ║
(b) where the competent national regulatory authorities have not been able to reach an agreement on the appropriate regulatory regime within six months from the date that the file was brought before the last of those regulatory authorities.
▐
Article 24e Compliance with Guidelines 1. The Commission or any national regulatory authority ║ may request the opinion of the Agency on the compliance of a decision taken by a national regulatory authority with guidelines referred to in this Directive or in Regulation (EC) No 1775/2005.
2. The Agency shall provide its opinion to the Commission or the national regulatory authority which has requested it ║ and to the national regulatory authority which has taken the decision in question within two months.
3. Where the national regulatory authority which has taken the disputed decision fails to comply with the Agency's opinion within four months from the date of its receipt, the Agency shall inform the Commission accordingly.
4. Any national regulatory authority may inform the Commission where it considers that a decision taken by a national regulatory authority does not comply with guidelines referred to in this Directive or in Regulation (EC) No 1775/2005 within two months from the date of that decision. 3.12.2009 EN Official Journal of the European Union C 294 E/177
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5. Where the Commission ║ finds that the decision of a national regulatory authority raises serious doubts as to its compatibility with guidelines referred to in this Directive or in Regulation (EC) No 1775/2005, either within two months of being informed of the failure to comply with the Agency's opinion in accordance with paragraph 3 or of the failure to comply with guidelines in accordance with paragraph 4, or, on its own initiative, within three months from the date of the disputed decision, the Commission may decide to initiate proceedings. In such a case, the Commission shall invite the national regulatory authority and the parties to the proceedings before the national regulatory authority to submit comments.
6. Where the Commission has decided to initiate proceedings, it shall, within ║four months of the date of such decision, issue a final decision:
(a) not to raise objections against the decision of the national regulatory authority; or
(b) requiring the national regulatory authority concerned to amend or revoke its decision if it considers that guidelines have not been complied with.
7. Where the Commission has not taken a decision to initiate proceedings or a final decision within the time-limits set in paragraphs 5 and 6 respectively, it shall be deemed not to have raised objections against the decision of the national regulatory authority.
8. The national regulatory authority shall comply with the Commission decision to amend or revoke its decision within a period of two months and shall inform the Commission accordingly.
9. The Commission shall adopt guidelines setting out the details of the procedure to be followed for the application of this Article. This measure designed to amend non-essential elements of this Directive by supplementing it shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 30(3).
Article 24f Record keeping 1. Member States shall require supply undertakings to keep at the disposal of the competent authorities, to enable them to fulfil their duties, for at least five years, the relevant data relating to all transactions in gas supply contracts and gas derivatives with wholesale customers and transmission system operators as well as storage and LNG operators.
2. The data may include details on the characteristics of the relevant transactions such as duration, delivery and settlement rules, the quantity, the dates and times of execution and the transaction prices and means of identifying the wholesale customer concerned, as well as specified details of all unsettled gas supply contracts and gas derivatives.
3. The national regulatory authority may decide to make available to market participants elements of this information provided that commercially sensitive information on individual market players or individual transactions is not released. This paragraph shall not apply to information about financial instruments which fall within the scope of Directive 2004/39/EC.
▐
4. The provisions of this Article shall not create additional obligations vis-à-vis the authorities mentioned in paragraph 1 for entities falling within the scope of Directive 2004/39/EC. C 294 E/178 EN Official Journal of the European Union 3.12.2009
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5. In the event that the authorities mentioned in paragraph 1 need access to data kept by entities falling within the scope of Directive 2004/39/EC, the authorities responsible under that Directive shall provide the authorities mentioned in paragraph 1 with the required data. ______(*) OJ L 1, 4.1.2003, p. 1.’
(19) Article 25 shall be deleted.
(20) The following article shall be inserted after Article 26:
‘Article 26a Exemption of industrial sites 1. Member States may exempt industrial sites from Articles 4 and Article 7, Article 8(1) and (2), Article 11, Article 12(5), Articles 13, 17 and 18, Article 23(1), and/or Article 24 of this Directive.
2. Third-party access shall not be affected by the exemptions referred to in paragraph 1. Customers on industrial sites shall be able freely to choose their gas supplier, having resort to the national regulatory authorities in the event of a disagreement with the network operator.’
(21) Article 30 shall be replaced by the following:
‘Article 30 Committee 1. The Commission shall be assisted by a committee.
2. Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
3. Where reference is made to this paragraph, Article 5a(1) to (4), and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.’
(22) ▐ Annex A, shall be replaced by the following:║
‘Without prejudice to Community rules on consumer protection, in particular Directive 97/7/EC of the European Parliament and of the Council and Council Directive 93/13/EEC, the measures referred to in Article 3 are to ensure that customers:
(a) have a right to a contract with their gas service provider that specifies:
— the identity and address of the supplier;
— the services provided, the service quality levels offered, as well as the time for the initial connection;
— the types of maintenance service offered;
— the means by which up-to-date information on all applicable tariffs and maintenance charges may be obtained;
— the duration of the contract, the conditions for renewal and termination of services and of the contract, the existence of any right of withdrawal without charge;
— any compensation and the refund arrangements which apply if contracted service quality levels are not met including inaccurate and delayed billing; 3.12.2009 EN Official Journal of the European Union C 294 E/179
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— the method of initiating procedures for settlement of disputes in accordance with point (f);
— information on consumer rights, including all of the above, clearly communicated through billing and natural gas undertaking web sites; and
— details concerning the competent appeals authority and of the procedure to be followed by customer in case of dispute.
Conditions shall be fair and well-known in advance. In any event, the information referred to in this point should be provided prior to the conclusion or confirmation of the contract. Where contracts are concluded through intermediaries, that information shall also be provided prior to the conclusion of the contract;
(b) are given adequate notice of any intention to modify contractual conditions and are informed about their right of withdrawal when the notice is given. Service providers shall notify their subscribers directly of any increase in charges, at an appropriate time no later than one normal billing period after the increase comes into effect in a transparent and comprehensible manner. Member States shall ensure that customers are free to withdraw from contracts if they do not accept the new conditions notified to them by their gas service provider;
(c) receive transparent information on applicable prices and tariffs and on standard terms and conditions, in respect of access to and use of gas services;
(d) are offered a wide choice of payment methods, which shall not discriminate between customers. Any difference in terms and conditions shall reflect the costs to the supplier of the different payment systems. General terms and conditions shall be fair and transparent. They shall be given in clear and comprehensible language. Customers shall be protected against unfair or misleading selling methods including non-contractual barriers imposed by the trader, for example excessive contractual documentation;
(e) are not charged for changing supplier;
(f) benefit from transparent, simple and inexpensive procedures for dealing with their complaints. In particular, all consumers shall have the right to service delivery and complaint handling by their gas service provider. Such procedures shall enable disputes to be settled fairly and promptly, and within three months, with provision, where warranted, for a system of reim bursement and/or compensation. They should follow, wherever possible, the principles set out in Commission Recommendation 98/257/EC of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes (*);
(g) where they are already connected to the gas system, are informed about their rights to be supplied, under the national legislation applicable, with natural gas of a specified quality at reasonable prices;
(h) are easily able to switch to a new supplier and have at their disposal their consumption data, and shall be able to, by explicit agreement and free of charge, give any authorised supply undertaking▐ access to its metering data. The party responsible for data management is obliged to give that data to the undertaking. Member States shall define a format for the data and a procedure for suppliers and consumers to have access to the data. No additional costs can be charged to the consumer for this service;
(i) are properly informed at least quarterly of actual gas consumption and costs. No additional costs can be charged to the consumer for this service. The Member States shall ensure that roll-out of smart meters is completed with minimum disruption to consumers by … (**) which shall be the responsibility of the distribution system operator or supply undertakings. National regulatory authorities shall be responsible for monitoring the process of such development and for laying down common standards for that purpose. Member States shall ensure that standards estab lishing the minimum technical design and operational requirements for meters address inter operability issues to provide maximum benefit at minimum cost to consumers; C 294 E/180 EN Official Journal of the European Union 3.12.2009
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(j) receive a final closure account bill following switching of supply undertaking no later than one month after informing the relevant supply undertaking. ______(*) OJ L 115, 17.4.1998, p. 31. (**) Ten years after entry into force of Directive …/…EC [amending the Directive 2003/55/EC].’
Article 2 Transposition 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by … (*) ║. They shall ║ communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive forthwith.
They shall apply these provisions from … (*) ║.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accom panied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
3. Member States shall repeal any laws, regulations and administrative provisions which prevent any natural gas undertaking, regulatory or other authority from complying with their duties or fulfilling their powers or obligations under this Directive.
4. The Commission shall report annually to the European Parliament and the Council on the formal and practical implementation of this Directive in each Member State.
5. Where a publicly controlled entity is directly or indirectly involved in the acquisition of parts of a vertically integrated undertaking, the price in relation to the arrangement of such a transaction shall be notified to the Commission. Such notification shall include certification of the underlying asset value by an international auditing company. The Commission shall use such information solely to exercise control over State aid.
Article 3 Entry into force This Directive shall enter into force on the […] day following that of its publication in the Official Journal of the European Union.
Article 4 Addressees This Directive is addressed to the Member States.
Done at ║
For the European Parliament For the Council The President The President
(*) 18 months after entry into force of this Directive. 3.12.2009 EN Official Journal of the European Union C 294 E/181
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Coordination of social security systems ***I P6_TA(2008)0348 European Parliament legislative resolution of 9 July 2008 on the proposal for a regulation of the European Parliament and of the Council laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (COM(2006)0016 — C6- 0037/2006 — 2006/0006(COD)) (2009/C 294 E/49) (Codecision procedure: first reading)
The European Parliament,
— having regard to the Commission proposal to the European Parliament and the Council (COM(2006)0016),
— having regard to Article 251(2) and Articles 42 and 308 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0037/2006),
— having regard to Rule 51 of its Rules of Procedure,
— having regard to the report of the Committee on Employment and Social Affairs and the opinion of the Committee on Women's Rights and Gender Equality (A6-0251/2008),
1. Approves the Commission proposal as amended;
2. Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;
3. Instructs its President to forward its position to the Council and the Commission.
P6_TC1-COD(2006)0006 Position of the European Parliament adopted at first reading on 9 July 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems and repealing Regulation (EEC) No 574/72 (Text with relevance for the EEA and for Switzerland)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 42 and 308 thereof,
Having regard to Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems ( 1), and in particular Article 89 thereof,
Having regard to the proposal from the Commission ║,
Having regard to the opinion of the European Economic and Social Committee ( 2 ),
( 1 ) OJ L 166, 30.4.2004, p. 1, as corrected by OJ L 200, 7.6.2004, p. 1. ( 2 ) OJ C 324, 30.12.2006, p. 59. C 294 E/182 EN Official Journal of the European Union 3.12.2009
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Acting in accordance with the procedure laid down in Article 251 of the Treaty ( 1 ),
Whereas:
(1) Regulation (EC) No 883/2004 modernises the rules on the coordination of Member States’ social security systems, specifying the measures and procedures for implementing it and simplifying them for all players involved. Implementing rules should be laid down.
(2) Closer and more effective cooperation between social security institutions is a key factor in allowing the persons covered by Regulation (EC) No 883/2004 to access their rights as quickly as possible and under optimum conditions.
(3) Electronic communication is a suitable means of rapid and reliable data exchange between Member States’ institutions. Processing ║ data electronically should help to speed up the procedures for everyone involved. The persons concerned must also benefit from all of the guarantees provided for in the Community provisions on the protection of natural persons with regard to the processing and free movement of personal data. Member States should therefore take the necessary measures to ensure that data relating to national social security legislation covered by Regulation (EC) No 883/2004 is adequately dealt with in accordance with the protection of individuals with regard to the processing of personal data and its exchange in the context of this Regulation.
(4) Availability of the details (including electronic details) of those national bodies likely to be involved in implementing Regulation (EC) No 883/2004, in a form which allows them to be updated in real time, should facilitate exchanges between Member States’ institutions. This approach, which focuses on the relevance of purely factual information and its immediate accessibility to citizens, is a valuable simplification which is to be introduced by this Regulation.
(5) Achieving the smoothest possible operation and efficient management of the complex procedures implementing the rules on the coordination of social security systems requires a system for the immediate updating of Annex IV. The preparation and application of provisions to that effect calls for close cooperation between the Member States and the Commission and their implementation should be carried out rapidly, in view of the consequences of delays for citizens and administrative authorities alike. The Commission should therefore be empowered to establish and manage a database and ensure that it is operational at least from the date of entry into force of this Regulation. The Commission should, in particular, take the necessary steps to integrate into that database the information listed in Annex IV.
(6) Strengthening certain procedures should ensure greater legal certainty and transparency for the users of Regulation (EC) No 883/2004. For example, setting common deadlines for fulfilling certain obligations or completing certain administrative tasks should assist in clarifying and structuring relations between insured persons and institutions.
(7) ║Member States, their competent authorities and the social security institutions must have the option of agreeing among themselves on simplified procedures and administrative arrangements which they consider to be more effective and suitable to the circumstances of their respective social security systems. However, such arrangements must not affect the rights of those covered by Regulation (EC) No 883/2004.
(8) The inherent complexity of the field of social security requires all institutions of the Member States to make a particular effort to support insured persons in order to avoid penalising those who have not submitted their claim or certain information to the institution responsible for processing this appli cation in accordance with the rules and procedures set out in Regulation (EC) No 883/2004 and in this Regulation.
( 1 ) Position of the European Parliament of 9 July 2008. 3.12.2009 EN Official Journal of the European Union C 294 E/183
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(9) To determine the competent institution, namely the one whose legislation applies or which is liable for the payment of certain benefits, the circumstances of the insured person and those of the family members must be examined by the institutions of one or more Member States. To ensure that the person concerned is protected for the duration of the necessary communication between institutions, provision should be made for provisional membership of a social security system.
(10) Member States should cooperate to determine the place of residence of persons to whom this Regulation and Regulation (EC) No 883/2004 apply and, in the event of a dispute, should take into consideration all relevant criteria to resolve the matter. To this end, Member States may take into account the relevant provisions of this Regulation.
(11) Many measures and procedures provided for in this Regulation are intended to ensure greater trans parency concerning the criteria which the institutions of the Member States must apply under Regu lation (EC) No 883/2004. They are the result of the case-law of the Court of Justice of the European Communities, the decisions of the Administrative Commission and the experience of more than thirty years of application of the coordination of social security systems in the context of the fundamental freedoms enshrined in the Treaty.
(12) This Regulation provides for measures and procedures to promote the mobility of employees and unemployed persons. Frontier workers who have become wholly unemployed may make themselves available to the employment services in both their country of residence and the Member State where they were last employed. However, they should be entitled to benefits only from their Member State of residence.
(13) Extending the scope of Regulation (EC) No 883/2004 to all insured persons, including the non- working population, requires certain specific rules and procedures for these persons, notably to define the legislation applicable for taking account of periods which persons who have never been employed or self-employed in the various Member States in which they have been resident have devoted to bringing up children.
(14) Certain procedures must also reflect the need for a balanced sharing of costs between Member States. In particular in the area of sickness, these procedures must take account of the position of Member States which bear the costs of allowing insured persons access to their healthcare system and the position of Member States whose institutions bear the cost of benefits in kind received by their insured persons in a Member State other than that in which they are resident.
(15) In the specific context of Regulation (EC) No 883/2004, it is necessary to clarify the conditions for meeting the costs of sickness benefits in kind as part of scheduled treatments, namely treatments for which an insured person goes to a Member State other than that in which he/she is insured or resident. The obligations of the insured person with regard to the application for prior authorisation should be specified, as should the institution's obligations towards the patient with regard to the conditions of authorisation. The consequences for the chargeability of the costs of care received in another Member State on the basis of an authorisation should also be clarified.
(16) More binding procedures to reduce the time needed for payment of these claims between Member States’ institutions are essential in order to maintain confidence in the exchanges and meet the need for sound management of Member States’ social security systems. Procedures for the processing of claims relating to sickness and unemployment benefits must therefore be strengthened.
(17) Because the social security schemes covered by Regulation (EC) No 883/2004 are based on solidarity between all insured persons, provision should be made for mechanisms to ensure more effective recovery of claims relating to benefits not due or contributions not paid. Procedures for mutual assistance between institutions must be clarified in line with the provisions laid down in Council Directive 2008/55/EC of 26 May 2008 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures ( 1) so as to better protect the financial interests of the Member States by organising cooperation, especially between tax authorities.
( 1 ) OJ L 150, 10.6.2008, p. 28. C 294 E/184 EN Official Journal of the European Union 3.12.2009
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(18) Informing insured persons of their rights and obligations is a crucial component of a relationship of trust with the competent authorities and the Member States’ institutions.
(19) Given that the objective of this Regulation, namely the adoption of coordination measures to guarantee the effective exercise of free movement of persons, cannot be sufficiently achieved by the Member States and can therefore ║, be better achieved at Community level, the Community may take action in accordance with the subsidiarity principle enshrined in Article 5 of the Treaty. In accordance with the proportionality principle set out in the above Article, this Regulation does not go beyond what is necessary to achieve the objective.
(20) This Regulation should replace Council Regulation (EEC) No 574/72 of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community ( 1 ).
HAVE ADOPTED THIS REGULATION:
TITLE I GENERAL PROVISIONS
Chapter I Definitions
Article 1 Definitions 1. For the purposes of this Regulation:
(a) ‘the basic Regulation’ shall mean Regulation (EC) No 883/2004;
(b) ‘the implementing Regulation’ shall mean this Regulation; and
(c) the definitions set out in the basic Regulation shall apply.
2. In addition to the definitions referred to in paragraph 1, for the purposes of this Regulation:
(a) ‘access point’ shall mean any body designated as an electronic contact point ║by the competent authority of a Member State for one or more branches of social security referred to in Article 3 of the basic Regulation to send and receive electronically the data necessary for the application of the basic Regulation and the implementing Regulation via the joint network ▐ between the ▐ Member States;
(b) ‘liaison body’ shall mean any body designated by the competent authority of a Member State for one or more branches of social security referred to in Article 3 of the basic Regulation to respond to requests for information and assistance for the purposes of the application of the basic Regulation and the implementing Regulation and which has to fulfil the tasks assigned to it under Title IV of the implementing Regulation;
(c) ‘document’ shall mean a set of data, irrespective of the medium used, structured in such a way that it can be exchanged electronically and which must be communicated to enable the operation of the basic Regulation and the implementing Regulation;
(d) ‘standardised electronic message’ shall mean any structured document in a format designed for the electronic exchange of information between Member States;
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(e) ‘transmission by electronic means’ shall mean transmission using electronic equipment for processing (including digital compression) of data and employing wires, radio transmission, optical technologies or any other electromagnetic means;
(f) ‘Technical Commission’ shall mean the body referred to in Article 73 of the basic Regulation;
(g) ‘Audit Board’ shall mean the body referred to in Article 74 of the basic Regulation.
Chapter II Provisions concerning cooperation and exchanges of data
Article 2 Scope and rules for exchanges between institutions 1. For the purposes of the implementing Regulation, exchanges between Member States’ authorities and institutions and persons covered by the basic Regulation shall be based on the principles of public service, objectivity, cooperation, active assistance, efficiency, accessibility for disabled people and rapid delivery.▐
2. The ▐ institutions shall provide or exchange, within the deadlines prescribed by the social security legislation of the Member State in question, all data necessary for establishing and determining the rights and obligations of persons to whom the basic Regulation applies. Such data shall be transferred between Member States directly by the institutions themselves or indirectly via the liaison bodies.
3. Where a person has mistakenly submitted information, documents or claims to an institution in the territory of a Member State other than that in which the institution designated in accordance with the implementing Regulation is situated, the information, documents or claims shall be resubmitted without delay by the former institution to the institution designated in accordance with the implementing Regu lation, indicating the date on which they were initially submitted. This date shall be binding on the latter institution. Member States’ institutions shall not, however, be held liable, or be deemed to have taken a decision by virtue of their failure to act, where this is a result of the late transmission of information, documents or claims by other Member States’ institutions.
▐
4. Where data are transferred indirectly via the access point or the liaison body, this access point or liaison body shall be regarded as fulfilling the role and function of the competent institution in this Member State with regard to time-limits for responding to claims submitted.
Article 3 Scope and rules for exchanges between beneficiaries and institutions 1. Persons covered by the basic Regulation shall be required to forward to the relevant institution the information, documents or supporting evidence necessary to establish their situation or that of their families, to establish or maintain their rights and obligations and to determine the applicable legislation and their obligations under it.
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2. When collecting, transmitting or processing personal data pursuant to its legislation for the purposes of implementing the basic Regulation, each Member State shall ensure that the persons concerned are able fully to exercise their rights regarding personal data protection, in accordance with Community provisions on the protection of individuals with regard to the processing of personal data and the free movement of such data. C 294 E/186 EN Official Journal of the European Union 3.12.2009
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In particular, Member States shall guarantee that such personal data is not used for purposes other than those of social security except where expressly so authorised by the person concerned. Member States shall also, upon request, provide the persons concerned with specific and adequate information on the processing of their personal data required for the purposes of this Regulation.
The persons concerned shall be able to exercise their rights as data subjects in the areas covered by this Regulation through the competent institution, irrespective of the origin of the data.
The list and contact details of the personal data protection officers, who are appointed in each Member State in accordance with Article 18 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data ( 1) , and who deal with data related to social security legislation covered under the basic Regulation shall constitute part of Annex IV to the imple menting Regulation.
3. To the extent necessary for the application of the basic Regulation and the implementing Regu lation, the relevant institutions shall forward ▐ the information and issue the ▐ documents to the persons concerned within the deadlines prescribed by the social security legislation of the Member State in question.
4. The competent institution of a Member State which directly sends a document containing a decision on the rights of a person residing or staying in the territory of another Member State shall request an acknowledgement of receipt, irrespective of the medium or the method of dispatch used. The acknowl edgement of receipt may be given using any medium and in any form.
5. In the absence of proof that the decision referred to in paragraph 4 has been sent, the time-limits relating to the forfeiture or limitation of rights acquired under the basic Regulation shall not be invoked against the beneficiaries.
6. Where the date on which the decision referred to in paragraph 4 was sent is duly established, the decision of the competent institution shall be held to be invoked against the person concerned within a month of that date. However, if the legislation of the Member State which made the decision provides for a longer time-limit, that time-limit shall apply.
7. In any event, the person concerned shall be entitled to the remedies and procedures provided for in the legislation applied by the institution responsible for the decision.
▐
Article 4 Format and method of exchanging data 1. The Administrative Commission shall lay down the structure, content, format and methods of exchange of ║ documents and▐ standardised electronic messages.
2. The transmission of data between the institutions, the access points or the liaison bodies shall be carried out by electronic means under a common secure framework that can guarantee the confidentiality and protection of exchanges of data.
3. In their communications with the persons concerned, the relevant institutions shall use the modalities appropriate to each case, favouring the use of electronic means as far as possible. The Administrative Commission shall lay down the practical arrangements for sending information, documents or decisions by electronic means to the person concerned.
( 1 ) OJ L 281, 23.11.1995, p. 31. 3.12.2009 EN Official Journal of the European Union C 294 E/187
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Article 5 Legal value of documents and supporting documents issued in another Member State 1. Documents issued by the institution of a Member State ║and showing the position of a person for the purposes of the application of the basic Regulation and of the implementing Regulation, and supporting documents issued by the authorities of another Member State, including the taxation authorities, shall be accepted by the institutions of the other Member States provided they have not been withdrawn or declared to be invalid by the competent authority or institution of the Member State in which they were issued.
2. Where there is doubt about the validity of a document or the accuracy of the facts on which the particulars contained therein are based, the receiving institution shall ask the issuing institution ║for the necessary clarification and, where appropriate, the withdrawal of that document. The issuing institution shall reconsider the grounds for issuing the document and, if necessary, withdraw it.
3. Where no agreement is reached between the institutions concerned one month after the date on which the receiving institution ║ submitted its request, the matter may be brought before the Administrative Commission in accordance with Article 76(6) of the basic Regulation in order to reconcile the points of view within six months of the date on which the matter was brought before it.
Article 6 Provisional application of legislation and provisional payment of benefits 1. Unless otherwise provided for in the implementing Regulation, where there is a difference of views between the institutions or authorities of two or more Member States concerning the determination of the applicable legislation, ▐ the person concerned shall be made provisionally subject to the legislation of one of those Member States, the order of priority being determined as follows:
(a) the legislation of the Member State where the person actually pursues his/her employment or self- employment if the employment or self-employment is pursued in only one Member State; or
(b) the legislation of the Member State of residence when the person concerned performs part of his/her activity/activities there or when the person is not employed or self employed; or
(c) the legislation of the Member State concerned the application of whose legislation was first requested, where the person pursues an activity or activities in two or more Member States.
2. Where there is a difference of views between the competent institutions or authorities of two or more Member States about which institution should provide the benefits, the person concerned who could claim benefits if there was no dispute shall be entitled, on a provisional basis, to the benefits foreseen by the legislation applied by the institution of his/her place of residence or, if that person does not reside on the territory of one of the Member States concerned, to the benefits foreseen by the legislation applied by the institution to which the application was first submitted.
3. Where no agreement is reached between the institutions or authorities concerned, the matter may be brought before the Administrative Commission by the competent authorities no earlier than one month after the date on which the difference of views as mentioned in paragraph 1 or 2 arose. The Adminis trative Commission shall seek to reconcile the points of views within six months of the date on which the matter was brought before it.
4. Where it is established either that the applicable legislation is not that of the Member State of provisional membership, or ║the institution which provisionally granted the benefits║ was not the competent institution, the institution identified as being competent shall be deemed retroactively to have been so, as if that difference of views had not existed, at the latest from either the date of provisional membership or of the first provisional granting of the benefits concerned. C 294 E/188 EN Official Journal of the European Union 3.12.2009
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5. If necessary, the competent institution shall settle the financial situation of the person concerned as regards contributions and cash benefits paid provisionally, where appropriate, on the basis of the arrangements laid down in Articles 71 to 81 of the implementing Regulation.
Provisional benefits in kind granted under paragraph 2 shall be reimbursed by the competent institution in accordance with Title IV of the implementing Regulation.
Article 7 Obligation of provisional award 1. Unless otherwise provided for in the implementing Regulation, where a person is either eligible for a benefit or liable to pay a contribution in accordance with the basic Regulation, and the competent institution does not have all the information concerning the situation in another Member State that is necessary to calculate definitively the amount of that benefit or contribution, that institution shall award this benefit on request of the person concerned or calculate this contribution on a provisional basis, if such a calculation is possible on the basis of the information at the disposal of the institution.
2. The benefit or the contribution concerned shall be recalculated as soon as the documentary evidence is provided to the institution concerned.
Chapter III Other general provisions for the application of the basic Regulation
Article 8 Administrative arrangements between two or more Member States 1. The provisions of this Regulation shall replace ║the arrangements for the application of the conventions referred to in Article 8 (1) of the basic Regulation, except the provisions concerning the arrangements for the conventions referred to in Annex II of the basic Regulation, provided that the provisions of the said arrangements are included in Annex I of the implementing Regulation.
2. The Member States may conclude among themselves, if necessary, arrangements pertaining to the application of conventions referred to in Article 8(2) of the basic Regulation provided that these arrangements do not adversely affect the rights and obligations of the persons concerned and are included in Annex I to the implementing Regulation.
Article 9 Other procedures between institutions 1. Two or more Member States, or their competent authorities, ▐ may agree ║procedures other than those foreseen by the implementing Regulation, provided that these procedures do not adversely affect the rights or obligations of the persons concerned.
2. Any agreements concluded to that end shall be notified to the Administrative Commission and listed in Annex I to this Regulation.
Article 10 Prevention of overlapping of benefits When benefits due under the legislation of two or more Member States are mutually reduced, suspended or withdrawn, any amounts that would not be paid in the event of strict application of the rules concerning reduction, suspension or withdrawal laid down by the legislation of the Member States concerned shall be divided by the number of benefits subjected to reduction, suspension or withdrawal. 3.12.2009 EN Official Journal of the European Union C 294 E/189
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Article 11 Elements for determining residence 1. Where there is a difference of views between the institutions of two or more Member States about the determination of the residence of a person to whom the basic Regulation applies, these institutions shall establish by common accord the centre of interests of the person concerned, based on an overall assessment of all available and relevant information, which may include, as appropriate:
(a) the duration and continuity of presence on the territory of the Member States concerned;
(b) personal circumstances, including:
(i) the nature and the specific characteristics of any activity pursued, in particular the place where such activity is habitually pursued, the stability of the activity, and the duration of any work contract;
(ii) his/her family status and family ties;
(iii) the exercise of any non-remunerated activity;
(iv) in the case of students, the source of their income;
(v) his/her housing situation, in particular how permanent it is;
(vi) the Member State in which the person is deemed to reside for taxation purposes.
2. Where consideration of the various criteria based on relevant facts as set out in paragraph 1 does not lead to agreement between the institutions concerned, the person's intention, as appears from the facts and circumstances of the case, especially the reasons that led the person to move, shall be considered to be decisive for establishing his/her actual place of residence.
Article 12 Aggregation of periods 1. For the purposes of applying Article 6 of the basic Regulation, the competent institution shall contact the institutions of the Member States to whose legislation the person concerned has also been subject, in order to determine all the periods▐ completed under this legislation
2. The periods of insurance, employment, self-employment or residence completed under the legislation of a Member State shall be added to those completed under the legislation of any other Member State, insofar as it is necessary for the purposes of applying Article 6 of the basic Regulation, provided that these periods do not overlap.
3. Where a period of compulsory insurance or residence ║completed║ under the legislation of a Member State coincides with a period of voluntary or continued optional insurance ║ under the legislation of another Member State, only the period of compulsory insurance shall be taken into account.
4. Where a period of insurance or residence other than an equivalent period completed under the legislation of a Member State coincides with an equivalent period on the basis of the legislation of another Member State, only the period other than an equivalent period shall be taken into account.
5. Any period regarded as equivalent under the legislation of two or more Member States shall be taken into account only by the institution of the Member State to whose legislation the insured person was last compulsorily subjected before the said period. In the event that the insured person was not compulsorily subjected to the legislation of a Member State before the said period, the latter shall be taken into account by the institution of the Member State to whose legislation the insured person was compulsorily subjected for the first time after the said period. C 294 E/190 EN Official Journal of the European Union 3.12.2009
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6. In the event that ║certain periods of insurance or residence ║completed under the legislation of a Member State cannot be determined precisely, it shall be presumed that these periods do not overlap with periods of insurance or residence completed under the legislation of another Member State, and account shall be taken thereof, where advantageous to the person concerned, insofar as they can reasonably be taken into consideration.
7. Where periods of insurance or residence are not taken into account under this Article because other periods that do not qualify for the benefit concerned take precedence, the periods not taken into account shall not lose their effect under national legislation, as regards the acquisition, retention or recovery of the right to benefits.
Article 13 Rules for conversion of periods of insurance Where periods of insurance completed under the legislation of a Member State are expressed in ║units different to those ║ of another Member State, the conversion needed for the purpose of aggregation shall be carried out under the following rules:
(a) one day shall be equivalent to eight hours, and vice versa;
(b) five days shall be equivalent to one week, and vice versa;
(c) 22 days shall be equivalent to one month, and vice versa;
(d) three months or thirteen weeks or sixty-six days shall be equivalent to one quarter, and vice versa;
(e) for the conversion of weeks into months and vice versa, weeks and months shall be converted into days;
(f) the application of points (a) to (e) may not lead to the admission, for all the periods of insurance completed in a calendar year, of a total exceeding 264 days or 52 weeks or 12 months or four quarters.
Where the periods of insurance completed under the legislation of a Member State are expressed in months, the days that correspond to a fraction of a month, in accordance with the conversion rules set out in the first subparagraph, shall be considered to be a full month.
TITLE II DETERMINATION OF THE LEGISLATION APPLICABLE
Article 14 Details relating to Articles 12 and 13 of the basic Regulation 1. For the purposes of the application of Article 12(1) of the basic Regulation, a ‘person who pursues an activity as an employed person in a Member State on behalf of an employer … and who is posted by that employer to another Member State’ shall include a person who is recruited with a view to being posted to another Member State, provided that, immediately before commencing his/her employment, the person concerned is already subject to the legislation of the Member State in which his/her employer is established.
2. For the purposes of the application of Article 12(1) of the basic Regulation, the words ‘which normally carries out its activities there’ shall refer to an employer that ordinarily performs substantial activities, other than purely internal management activities, in the territory of the Member State in which it is established, taking account of all criteria characterising the activities carried out by the undertaking in question. The relevant criteria must be suited to the specific characteristics of each employer and the real nature of the activities carried out. 3.12.2009 EN Official Journal of the European Union C 294 E/191
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3. For the purposes of the application of Article 12(2) of the basic Regulation, the words ‘who normally pursues an activity as a self-employed person’ shall refer to a person who habitually carries out substantial activities in the territory of the Member State in which he/she is established. In particular, that person must have already pursued his/her activity for some time before the date when he/she wishes to take advantage of the provisions of that Article and, during any period of temporary activity in another Member State, must continue to maintain, in the Member State where he/she is established, the requirements for the pursuit of his/her activity in order to be able to pursue it on his/her return.
4. For the purposes of the application of Article 12(2) of the basic Regulation, the criterion for deter mining whether the activity that a self-employed person goes to pursue in another Member State is ‘similar’ to the self-employed activity normally pursued, shall be that of the actual nature of the activity, rather than of the designation of employed or self-employed activity that may be given to this activity by the other Member State.
5. For the purposes of the application of Article 13(1) of the basic Regulation, a person who ‘normally pursues an activity as an employed person in two or more Member States’ shall refer, in particular, to a person who:
(a) while maintaining an activity in one Member State, simultaneously exercises a separate activity in one or more other Member States, irrespective of the duration or nature of that separate activity;
(b) continuously pursues activities in alternation, with the exception of marginal activities, in two or more Member States, irrespective of the frequency or regularity of the alternation.
6. For the purposes of the application of Article 13(2) of the basic Regulation a person who ‘normally pursues an activity as a self-employed person in two or more Member States’ shall refer, in particular, to a person who simultaneously or in alternation pursues one or more separate self-employed activities, irrespective of the nature of those activities, in two or more Member States.
7. For the purpose of distinguishing the activities under paragraphs 5 and 6 from the situations described in Article 12(1) and (2) of the basic Regulation, the duration of the activity in one or more other Member States (whether it is permanent or of an ad hoc or temporary nature) shall be decisive. For these purposes, an overall assessment shall be made of all the relevant facts including in particular, in the case of an employed person, the place of work as defined in the employment contract.
8. For the purposes of the application of Article 13(1) and (2) of the basic Regulation, ▐ a ‘substantial part of employed or self-employed activity’ pursued in a Member State shall mean a quantitatively substantial part of all the activities of the employed or self-employed worker▐ pursued there, without this necessarily being the principal part of these activities.
To determine whether a substantial part of the activities is pursued in a Member State, the following indicative criteria shall be taken into account:
(a) in the case of an employed activity, the working time and/or remuneration; and
(b) in the case of a self-employed activity, the turnover, working time, number of services rendered and/or income.
In the framework of an overall assessment, a total of less than 25 % in respect of the criteria mentioned above shall indicate that a substantial part of the activities is not pursued in the relevant Member State.
9. For the purposes of the application of Article 13(2)(b) of the basic Regulation (, the ‘centre of interest’ of the activities of a self-employed person shall be determined by taking account of all the aspects of that person's occupational activities, notably the place where the person's fixed and permanent place of business is located, the habitual nature or the duration of the activities pursued, the Member State in which the person concerned is subject to taxation on all his/her income, irrespective of the source, and the intention of the person concerned as revealed by all the circumstances. C 294 E/192 EN Official Journal of the European Union 3.12.2009
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10. For the determination of the applicable legislation under paragraphs 8 and 9, the institutions concerned shall take into account the situation projected for the following 12 calendar months.
11. If a person pursues his activity as an employed person in two or more Member States on behalf of an employer established outside the territory of the Union, and if this person resides in a Member State without pursuing substantial activity there, he/she shall be subject to the legislation of the Member State of residence.
▐
Article 15 Procedures for the application of Article 11(3)(b) and (d), Article 11(4) and Article 12 of the basic Regulation (on the provision of information to the institutions concerned) 1. Unless otherwise provided for by Article 16 of the implementing Regulation, where a person pursues his/her activity in a Member State other than the Member State competent under Title II of the basic Regulation, the employer or, in the case of a person who does not pursue an activity as an employed person, the person concerned, shall inform the competent institution of the Member State whose legislation is applicable thereof, whenever possible in advance. That institution shall, without delay, make information concerning the legislation applicable to the person concerned pursuant to Article 11(3)(b) or Article 12 of the basic Regulation available to the institution designated by the competent authority of the Member State in which the activity is pursued.
2. The provisions of paragraph 1 shall apply mutatis mutandis to persons covered by Article 11(3)(d) of the basic Regulation.
3. An employer within the meaning of Article 11(4) of the basic Regulation who has an employee on board a vessel flying the flag of another Member State, shall inform the competent institution of the Member State whose legislation is applicable, whenever possible in advance. That institution shall, without delay, make information concerning the legislation applicable to the person concerned, pursuant to Article 11(4) of the basic Regulation, available to the institution designated by the competent authority of the Member State whose flag, the vessel on which the employee is to perform the activity, is flying.
▐
Article 16 Procedure for the application of Article 13 of the basic Regulation 1. A person who pursues activities in two or more Member States shall inform the institution designated by the competent authority of the Member State of residence. This institution shall forward this information to the designated institution of each Member State in which an activity is pursued.
2. The institution designated by the competent authority of the Member State of residence shall without delay determine▐ the legislation applicable to the person concerned, having regard to the provisions of Article 13 of the basic Regulation and Article 14 of the implementing Regulation. That determination shall be provisional. The institution shall inform the institutions designated by the competent authorities of each Member State in which an activity is pursued of its provisional deter mination.
3. The provisional determination of the applicable legislation, as provided for in paragraph 2, shall become definitive within two months of▐ the designated institution in the Member States where the activity is pursued being informed of the provisional determination, unless the legislation has already been definitively determined on the basis of paragraph 4, or at least one of the institutions concerned informs the institution designated by the competent authority of the Member State of residence by the end of the two-month period that it cannot yet accept the determination or that it takes a different view on this 3.12.2009 EN Official Journal of the European Union C 294 E/193
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4. Where uncertainty about the determination of the applicable legislation requires contacts between the institutions or authorities of two or more Member States, at the request of one or more of the institutions designated by the competent authorities of the Member States concerned or of the competent authorities themselves, the legislation applicable to the person concerned shall be determined by common accord, having regard to the provisions of Article 13 of the basic Regulation and the relevant provisions of Article 14 of the implementing Regulation.
Where there is a difference of views between the institutions or competent authorities concerned, those bodies shall seek agreement in accordance with the conditions set out above, and the provisions of Article 6 of the implementing Regulation shall apply.
5. The competent institution of the Member State whose legislation is determined to be applicable either provisionally or definitively shall, without delay, inform the person concerned.
6. If the person concerned fails to provide the information referred to in paragraph 1, the provisions of this Article shall be applied at the initiative of the institution designated by the competent authority of the Member State of residence as soon as it becomes aware of that person's situation, possibly via another institution concerned.
Article 17 Procedure for the application of Article 15 of the basic Regulation Auxiliary staff shall exercise the right of option foreseen in Article 15 of the basic Regulation at the time of conclusion of the contract of employment. The authority authorised to conclude this contract shall inform the designated institution of the Member State for whose legislation the member of auxiliary staff has opted.
Article 18 Procedure for the application of Article 16(1) of the basic Regulation A request by the employer or the person concerned for an exemption from Articles 11 to 15 of the basic Regulation, shall be submitted, whenever possible in advance, to the competent authority or the body designated by the authority of the Member State, whose legislation the employer or person concerned requests be applied.
Article 19 Provision of information to ▐ persons concerned and employers 1. The competent institution of the Member State whose legislation becomes applicable by virtue of Title II of the basic Regulation shall inform the person concerned and, where appropriate, his/her employer(s) of the obligations pursuant to this legislation. It shall provide them with the necessary assistance to complete the formalities required by that legislation.
2. The competent institution of the Member State whose legislation is applicable by virtue of a provision of Title II of the basic Regulation shall issue to the person concerned a certificate of applicable legislation ║ and shall indicate where appropriate, until what date and under what conditions. The certificate shall indicate the wages stated by the employer.
Article 20 Cooperation between institutions 1. The relevant institutions▐ shall communicate to the competent institution of the Member State, whose legislation is applicable to a person by virtue of Title II of the basic Regulation, the necessary information required to establish the date on which this legislation becomes applicable and the contributions which he/she and his/her employer(s) are liable to pay under this legislation. C 294 E/194 EN Official Journal of the European Union 3.12.2009
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2. The competent institution of the Member State whose legislation becomes applicable to a person shall inform the institution of the Member State to whose legislation that person was last subject, indicating the date on which the application of this legislation takes effect.
Article 21 Obligations of the employer 1. An employer║ who has his registered office or place of business outside the competent Member State shall be obliged to fulfil all the obligations laid down by the legislation applicable to the employee, in particular the obligation to pay the contributions provided for by this legislation, as if he had his registered office or place of business in the competent Member State.
2. An employer that does not have a place of business in the Member State whose legislation is applicable and his/her employee may agree that the latter may fulfil the employer's obligations on its behalf as regards the payment of contributions without prejudice to the employer's underlying obligations. The employer shall ║send notice of such an arrangement to the competent institution of this Member State.
TITLE III SPECIAL PROVISIONS CONCERNING THE VARIOUS CATEGORIES OF BENEFITS
Chapter I Sickness, maternity and equivalent paternity benefits
Article 22 General implementing provisions 1. The competent authorities or institutions shall ensure that any necessary information is made available to insured▐ persons regarding the procedures and conditions for the granting of benefits in kind▐ where these benefits are received in the territory of a Member State other than that of the competent institution▐ .
2. Articles 25 and 26 of the implementing regulation shall not affect the application of the national provisions of a Member State that allow for a greater part of the cost of benefits in kind in the situations referred to in paragraph 1 to be borne, than under the terms of the basic Regulation
3. Two or more Member States, or their competent authorities, may agree between themselves on other procedures and arrangements for the application of Articles 25, 26 and 27 of the implementing regulation. However, the agreements concluded to this end may not have unfavourable effects on the conditions and amounts for the chargeability of the benefits in kind of the persons concerned that would stem from the application of this Regulation. These agreements shall be notified to the Administrative Commission.
4. Notwithstanding Article 5(a) of the basic Regulation, a Member State may become responsible for the cost of benefits in accordance with Article 22 of the basic Regulation only if either the insured person has made a claim for a pension under the legislation of that Member State or in accordance with Articles 23 to 30 of the basic Regulation he/she receives a pension under the legislation of that Member State.
Article 23 Regime applicable in the event of the existence of several regimes in the Member State of residence or stay If the legislation of the place of residence or stay comprises several schemes of sickness, maternity and paternity insurance, the provisions applicable under Articles 17, 19(1), 20, 22, 24, 26 and 27 of the basic Regulation shall be those of the legislation on the general scheme for employed persons. 3.12.2009 EN Official Journal of the European Union C 294 E/195
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Article 24 Residence in a Member State other than the competent Member State 1. For the purposes of the application of Article 17 of the basic Regulation, an insured person or members of his/her family shall be obliged to register with the institution of the place of residence, sending a document showing their right to the benefits in kind payable by the competent Member State.
This document shall be issued by the competent institution, where appropriate in the light of the information provided by the employer. If the insured person or the members of his/her family do not send the said document, the institution of the place of residence shall request the necessary information from the competent institution.
2. The document referred to in paragraph 1 shall remain valid until the competent institution informs the institution of the place of residence of its cancellation.
The institution of the place of residence shall inform the competent institution of any registration under paragraph 1 and of any change or cancellation of that registration.
3. This Article shall apply mutatis mutandis to the persons referred to in Articles 22, 24, 25 and 26 of the basic Regulation.
Article 25 Stay in a Member State other than the competent Member State A) Procedure and scope of right 1. For the purposes of the application of Article 19 of the basic Regulation, the insured person shall present a document issued by his/her competent institution demonstrating his/her entitlement to benefits in kind. to the health care provider in the Member State of stay If the insured person does not have such a document, the institution of the place of stay, upon request or if otherwise necessary, shall contact the competent institution to obtain one.
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2. That document shall demonstrate that the insured person is entitled to benefits in kind under the conditions laid down in Article 19 of the basic Regulation on the same terms as those applicable to persons insured under the legislation of the Member State of stay.
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3. The benefits in kind referred to in Article 19(1) of the basic Regulation shall refer to the benefits in kind ║provided in the Member State of stay, in accordance with its national legislation, and which become necessary on medical grounds in order to prevent an insured person from being required to return, before the end of the planned duration of stay, to the competent Member State to obtain the necessary treatment ║.
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B) Procedure and arrangements for meeting the costs and providing reimbursement of benefits in kind. 4. If the insured person has actually borne the costs of all or part of the benefits in kind provided within the framework of Article 19 of the basic Regulation and if the legislation applied by the institution of the place of stay enables reimbursement of those costs to an insured person, he/she may send his/her application for reimbursement to the institution of the place of stay. In that case, that institution shall reimburse directly to that person the amount of the costs corresponding to these benefits within the limits and under the conditions of the reimbursement rates in its legislation. C 294 E/196 EN Official Journal of the European Union 3.12.2009
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5. If the reimbursement of these costs has not been requested directly from the institution of the place of stay, the costs incurred shall be reimbursed to the person concerned by the competent institution in accordance with the reimbursement rates administered by the institution of the place of stay or, if Article 61 of the implementing Regulation had applied in the case concerned, the amounts which would have been subject to reimbursement to the institution of the place of stay.
The institution of the place of stay shall ║provide the competent institution, upon request, with all necessary information about these rates or amounts.▐
6. By way of derogation from paragraph 5, the competent institution may reimburse the costs incurred within the limits of and at the rates laid down in its legislation, provided that the insured person has agreed to this provision being applied to him/her.
7. The reimbursement to the insured person shall not, in any event, exceed the amount of costs actually incurred by him/her.
8. In the case of significant expenditure, the competent institution may pay the insured person an appropriate advance as soon as that person submits his/her application for reimbursement to it.
C) Family Members 9. Paragraphs 1-8 shall apply mutatis mutandis to the members of the family of the insured person.
Article 26 Scheduled treatment A) Authorisation procedure 1. For the purposes of the application of Article 20(1) of the basic Regulation, the insured person shall present a document issued by the competent institution to the institution of the place of stay. For the purposes of this Article, the competent institution shall mean the institution which bears the cost of the scheduled treatment; in the cases referred to in Article 20(4) and 27(5) of the basic Regulation, in which the benefits in kind provided in the Member State of residence are reimbursed by fixed amounts, the competent institution shall mean the institution of the place of residence.
2. If an insured person does not reside in the competent Member State, he/she shall request auth orisation from the institution of the place of residence, which shall forward it to the competent institution without delay.
In that event, the institution of the place of residence shall certify whether the conditions set out in the second sentence of Article 20(2) of the basic Regulation are met in the Member State of residence.
The competent institution may refuse authorisation only if, in accordance with the assessment of the institution of the place of residence, the conditions set out in the second sentence of Article 20(2) of the basic Regulation are not met in the Member State of residence of the insured person, or if the same treatment can be provided in the competent Member State itself, within a time-limit which is medically justifiable, taking into account the current state of health and the prognosis of the person concerned.
The competent institution shall inform the institution of the Member State of residence of its decision.
In the absence of a reply within fifteen ‘calendar days’ of the date on which the request was sent, the authorisation shall be considered to have been granted by the competent institution.
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3. If an insured person who does not reside in the competent Member State is in need of an urgent and vitally necessary treatment, the authorisation cannot be refused under the second sentence of Article 20(2) of the basic Regulation. In such circumstances, the authorisation shall be granted by the institution of the place of residence on behalf of the competent institution, which shall be immediately informed by the institution of the place of residence.
The competent institution shall be obliged to accept the findings made and the treatment options given by the doctors approved by the institution of the place of residence that issues the authorisation concerning the need for urgent and vitally necessary treatment that is decided ║
4. The competent institution shall retain the right to have the insured person examined by a doctor of its own choice in the Member State of stay or residence at any time during the procedure granting the authorisation.
5. The institution of the place of stay shall, without prejudice to any decision regarding authorisation, inform the competent institution if it appears medically appropriate to supplement the treatment covered by the existing authorisation.
B) Meeting the cost of benefits in kind incurred by the insured person 6. Without prejudice to paragraph 7, Article 25(5) and (6) of the implementing Regulation shall apply mutatis mutandis.
7. If the insured person has actually borne all or part of the costs for the authorised medical treatment, and the costs which the competent institution is obliged to reimburse to the institution of the place of stay or to the insured person pursuant to paragraph 6 (actual cost) are lower than the costs which it would have had to assume for the same treatment in the competent Member State (notional cost), the competent institution shall reimburse, upon request, the cost of treatment incurred by the insured person up to the amount by which the notional cost exceeds the actual cost. The reimbursed sum may not, however, exceed the costs actually incurred by the insured person and may take account of the amount which the insured person would have had to pay if the treatment had been delivered in the competent Member State.
C) Meeting the costs of travel and stay as part of scheduled treatment. 8. ▐ The costs of travel and stay that are inseparable from the treatment of the insured person and, if necessary, the costs of travel and stay for a person who must accompany him/her, shall be assumed by this institution when an authorisation is granted in the case of treatment in another Member State. In the event of the insured person being a person with disabilities, the travel and stay of an accompanying person shall be considered necessary.
D) Family members 9. The provisions of paragraphs 1-8 shall apply mutatis mutandis to the members of the family of the insured persons.
Article 27 Cash benefits relating to incapacity for work in the event of a stay or residence in a Member State other than the competent Member State A) Procedure to be followed by the insured person 1. If the legislation of the competent Member State requires that the insured person present a certificate in order to be entitled to cash benefits relating to incapacity for work pursuant to Article 21(1) of the basic Regulation, the insured person shall ask the doctor of the Member State of residence who established his/her state of health to▐ certify his/her incapacity for work and its probable duration. C 294 E/198 EN Official Journal of the European Union 3.12.2009
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2. The insured person shall send the certificate to the competent institution within the time-limit laid down in the legislation of the competent Member State.
3. Where doctors providing treatment in the Member State of residence do not issue certificates of incapacity for work, and where such certificates are required under the legislation of the competent Member State, the person concerned shall apply directly to the institution of the place of residence. That institution shall immediately arrange for a medical assessment of the person's incapacity for work and for the certificate referred to in paragraph 1 to be drawn up. The certificate shall be forwarded to the competent institution forthwith.
4. The forwarding of the document referred to paragraphs 1, 2 and 3 shall not exempt the insured person from fulfilling the obligations provided for by the applicable legislation, in particular with regard to his/her employer. Where appropriate the employer and/or the competent institution may call upon the employee to participate in activities designed to promote and assist his/her return to employment.
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B) Procedure to be followed by the institution of the Member State of residence 5. At the request of the competent institution or in the cases referred to in paragraph 3, the institution of the place of residence shall have the medical condition of the insured person checked, where necessary, as if that person were insured by it. The information in the report of the examining doctor concerning, in particular, the probable duration of the incapacity for work, shall be forwarded by the institution of the place of residence to the competent institution within three working days of the date of the examination.
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C) Procedure to be followed by the competent institution 6. The competent institution shall retain the right to have the insured person examined by a doctor of its choice.
7. Without prejudice to the second sentence of Article 21(1) of the basic Regulation, the competent institution shall pay the cash benefits directly to the person concerned and shall, where necessary, inform the institution of the place of residence thereof.
8. For the purposes of the application of Article 21(1) of the basic Regulation, the particulars of the certificate of incapacity for work of an insured person drawn up in another Member State on the basis of the medical findings of the examining doctor must be accepted by the competent institution unless there has been any abusive conduct.
9. If the competent institution decides to refuse the cash benefits, it shall notify the insured person of its decision and simultaneously notify the institution of the place of residence thereof.
D) Procedure in the event of a stay in a Member State other than the competent Member State. 10. The provisions of paragraphs 1-9 shall apply mutatis mutandis when the insured person stays in a Member State other than the competent Member State. 3.12.2009 EN Official Journal of the European Union C 294 E/199
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Article 28 Long-term care benefits in cash in the event of a stay or residence in a Member State other than the competent Member State A) Procedure to be followed by the insured person 1. In order to be entitled to cash benefits relating to long-term care pursuant to Article 21(1) of the basic Regulation, the insured person shall apply to the competent institution. The competent institution shall, where necessary, inform the institution of the place of residence thereof.
B) Procedure to be followed by the institution of the place of residence 2. At the request of the competent institution, the institution of the place of residence shall examine the condition of the insured person with respect to his/her need for long-term care. The competent institution shall provide the institution of the place of residence with all the information necessary for such an examination.
C) Procedure to be followed by the competent institution 3. In order to determine the degree of need for long-term care, the competent institution shall have the right to have the insured person examined by a doctor or any other expert of its choice.
4. Article 27(7) of the implementing Regulation shall apply mutatis mutandis.
D) Procedure in the event of a stay in a Member State other than the competent Member State 5. Paragraphs 1-4 shall apply mutatis mutandis when the insured person stays in a Member State other than the competent Member State.
E) Family members 6. Paragraphs 1-5 shall apply mutatis mutandis to the members of the family of the insured person.
Article 29 Application of Article 28 of the basic Regulation If the Member State where the former frontier worker last pursued his/her activity is no longer the competent Member State, and the former frontier worker or a member of his/her family travels there with the purpose of receiving benefits in kind by virtue of Article 28 of the basic Regulation, he/she shall submit to the institution of the place of stay a document issued by the competent institution.
Article 30 Contributions by pensioners ▐
If a person receives a pension from more than one Member State, the amount of contributions deducted from all the pensions paid shall under no circumstances be greater than the amount deducted from a person with the same amount of pension obtained from the competent Member State. C 294 E/200 EN Official Journal of the European Union 3.12.2009
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Article 31 Application of Article 34 of the basic Regulation A) Procedure to be followed by the competent institution ▐ 1. The competent institution shall ▐ inform the person concerned of the provision contained in Article 34 of the basic Regulation regarding the prevention of overlapping of benefits. The application of such rules shall ensure that the person not residing in ▐ the competent Member State is entitled to benefits of at least the same total amount or value as those to which he/she would be entitled if he/she resided in that Member State.
2. The competent institution shall also inform the institution of the place of residence or stay of the payment of long-term care cash benefits where the legislation applied by the latter institution provides for long-term care benefits in kind included in the list referred to in Article 34(2) of the basic Regu lation.
B) Procedure to be followed by the institution of the place of residence or stay 3. Having received the information provided for in paragraph 2, the institution of the place of residence or stay shall, without delay, inform the competent institution of any long-term care benefit in kind intended for the same purpose granted under its legislation to the person concerned and of the rate of reimbursement applicable thereto.
4. The Administrative Commission shall lay down implementing measures for this Article where necessary.
Article 32 Special implementing measures 1. For the Member States referred to in Annex II, the provisions of Title III, Chapter I, of the basic Regulation ▐ relating to benefits in kind shall apply to persons entitled to benefits in kind solely on the basis of a special scheme for civil servants only to the extent specified therein. The institution of another Member State shall not, on those grounds alone, become responsible for bearing the costs of benefits in kind or in cash provided to those persons or to members of their family.
2. Notwithstanding the provisions of paragraph 1, Article 23 of the basic Regulation shall apply to persons who are entitled to both a pension under a civil servants’ scheme in one of the Member States referred to in Annex 2 and a pension under the legislation of another Member State.
3. Practical implementing measures for paragraphs 1 and 2 shall be taken by the Administrative Commission.
Chapter II Benefits in respect of accidents at work and occupational diseases
Article 33 Right to benefits in kind and in cash in the event of residence or stay in a Member State other than the competent Member State For the purposes of applying Article 36(1) of the basic Regulation, the procedures laid down in Articles 24 to 27 of the implementing Regulation shall apply mutatis mutandis.
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Article 34 Cooperation between institutions in the event of an accident at work or occupational disease which occurs in a Member State other than the competent Member State 1. If the accident at work or occupational disease is diagnosed for the first time in a Member State other than the competent Member State, the declaration of the occupational accident or disease shall be carried out in accordance with the legislation of the competent State, without prejudice, where appropriate, to the legal provisions in force in the Member State in which the occupational accident occurred or in which the first medical diagnosis of the occupational disease was made, which remain applicable in such cases. This declaration shall be addressed to the competent institution and a copy shall be sent to the institution in the place of residence or stay.
2. The institution of the Member State in the territory of which the occupational accident occurred or in which the occupational disease was first diagnosed, shall notify the competent institution of medical certificates drawn up in the territory of that State and, at the request of that institution, shall provide any appropriate information.
3. Where, as a result of a commuting accident which occurs in the territory of a Member State other than the competent Member State, an inquiry is necessary in the territory of the first Member State, an investigator may be appointed for this purpose by the competent institution, which shall inform the authorities of that Member State. The authorities shall assist the investigator, in particular by appointing a person responsible for helping to consult the reports and any other documents relating to the accident.
4. Following treatment, a detailed report accompanied by medical certificates relating to the permanent consequences of the accident or illness, in particular the victim's present state and the recovery or stabili sation of injuries, shall be sent to the competent institution. The relevant fees shall be paid by the institution in the place of residence or by the institution in the place of stay, where appropriate, at the rate applied by that institution to the charge of the competent institution.
5. At the request of the institution in the place of residence or the institution in the place of stay, where appropriate, the competent institution shall notify it of the decision setting the date for the recovery or stabilisation of injuries and, where appropriate, the decision concerning the granting of a pension.V
Article 35 Contestation of the occupational nature of the accident or disease 1. Where the competent institution contests application of the legislation relating to accidents at work or occupational diseases under Article 36(2) of the basic Regulation, it shall immediately inform the institution in the place of residence or stay which provided the benefits in kind, which will then be considered as sickness insurance benefits.
2. When a final decision has been taken on this subject, the competent institution shall immediately inform the institution in the place of residence or stay which provided the benefits in kind. The latter institution shall continue to pay benefits in kind as sickness insurance benefits if the employed or self- employed person is entitled to them and an occupational accident or disease is not involved. If that is not the case, benefits in kind paid to the beneficiary as sickness insurance shall be considered as occupational accident or disease benefits from the date on which the occupational accident or disease was first diagnosed. C 294 E/202 EN Official Journal of the European Union 3.12.2009
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Article 36 Procedure in the event of exposure to the risk of an occupational disease in several Member States 1. In the case referred to in Article 38 of the basic Regulation, the declaration of the occupational disease shall be sent either to the competent institution for occupational diseases of the last Member State under the legislation of which the victim pursued an activity likely to cause the said disease, or to the institution in the place of residence, which shall forward the declaration to the ║competent institution.
If the latter institution establishes that an activity likely to cause the occupational disease in question was last pursued under the legislation of another Member State, it shall send the declaration and the accom panying certificates to the equivalent institution in that Member State.
2. Where the institution of the last Member State under the legislation of which the victim pursued an activity likely to cause the occupational disease in question establishes that the victim or his/her survivors do not meet the requirements of that legislation, that institution shall forward immediately to the institution of the previous Member State under the legislation of which the victim pursued an activity likely to cause the occupational disease in question the declaration and all accompanying certificates, including the findings and reports of medical examinations performed by the first institution, as well as a copy of the decision referred to in the second paragraph.
It shall also inform the insured person of its decision, indicating in particular the reasons for refusing benefits, the remedies and periods allowed for appeals, as well as the date on which the dossier was sent to the institution of the Member State under the legislation of which the insured person previously pursued an activity likely to cause the occupational disease in question.
3. It is advisable, where appropriate, to go back under the same procedure ║as far as the equivalent institution in the Member State under whose legislation the victim first pursued an activity likely to cause the occupational disease in question.
Article 37 Exchange of information between institutions and advance payments in the event of an appeal against rejection 1. In the event of an appeal against a decision to refuse benefits taken by the institution of one of the Member States under the legislation of which the victim pursued an activity likely to cause the occupational disease in question, that institution shall inform the institution to which the declaration was sent, in accordance with the procedure provided for in Article 36(2) of the implementing regulation, and shall subsequently inform it of the final decision.
2. Where a person is entitled to benefits under the legislation applied by the institution to which the declaration was sent, that institution shall make the advance payments, the amount of which shall be determined, where appropriate, after consulting the institution which made the decision against which the appeal was lodged. The latter institution shall reimburse the advance payments made if, as a result of the appeal, it is obliged to provide these benefits. That amount will then be deducted from the benefits due to the person concerned, in accordance with the procedure provided for in Article 71 of the imple menting regulation.
Article 38 Aggravation of an occupational disease In the cases covered by Article 39 of the basic Regulation, the claimant must give the institution in the Member State from which he/she is claiming entitlement to benefits all the details concerning benefits previously granted for the occupational disease in question. That institution may contact any other previously competent institution in order to obtain the information it considers necessary. 3.12.2009 EN Official Journal of the European Union C 294 E/203
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Article 39 Assessment of the degree of incapacity in the event of occupational accidents or diseases which occurred previously or subsequently. For the purposes of applying Article 40(3) of the basic Regulation, where a previous or subsequent incapacity for work was caused by an accident which occurred when the person concerned was subject to the legislation of a Member State which makes no distinction according to the origin of the incapacity to work, the competent institution in the case of the previous or subsequent incapacity for work or the body designated by the competent authority of the Member State in question shall be obliged, when requested to do so by the competent institution of another Member State, to provide information concerning the degree of the previous or subsequent incapacity for work, and, where possible, information making it possible to determine whether the incapacity is the result of an accident at work within the meaning of the legislation applied by the institution in the other Member State.
In such cases, the competent institution shall take into account the degree of incapacity caused by these previous or subsequent cases when determining the right to benefits and the amount, in accordance with the applicable legislation.
Article 40 Submission and investigation of claims for pensions or supplementary allowances 1. In order to receive a pension or supplementary allowance under the legislation of a Member State, the employed or self-employed person or his/her survivors residing in the territory of another Member State shall submit a claim either to the competent institution or to the institution in the place of residence, which shall send it to the competent institution. The claim shall be accompanied by the necessary supporting documents and be drawn up in accordance with the legislation applied by the competent institution.
2. The competent institution shall notify the claimant of its decision directly or through the liaison body of the competent State. It shall send a copy of this decision to the liaison body of the Member State in which the claimant resides.
Article 41 Special implementing measures The provisions of Title III, Chapter 2 of the basic Regulation covering benefits in kind shall not apply to persons entitled to benefits in kind solely on the basis of a special scheme for civil servants in one of the Member States referred to in Annex II to the implementing Regulation.
Chapter III Death grants
Article 42 Claim for death grants For the purposes of applying Articles 42 and 43 of the basic Regulation, the claim for death grants shall be sent to the institution in the claimant's place of residence. C 294 E/204 EN Official Journal of the European Union 3.12.2009
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Chapter IV Invalidity benefits and old-age and survivors’ pensions
Article 43 Calculation of benefit 1. For the purposes of calculating the theoretical amount and the actual amount of the benefit in accordance with Article 52(1)(b) of the basic Regulation, ▐ the rules provided for in Article 12(3), (4), (5) and (6) of the implementing Regulation shall apply.
2. Where periods of voluntary or optional continued insurance have not been taken into account under Article 12(3) of the implementing Regulation, the institution of the Member State under whose legislation these periods were completed shall calculate the amount corresponding to these periods under the legis lation it applies. The actual amount of the benefit, calculated in accordance with Article 52(1)(b) of the basic Regulation, shall be increased by the amount corresponding to periods of voluntary or optional continued insurance.
3. The institution of each Member State shall calculate, under the legislation it applies, the amount due corresponding to periods of voluntary or optional continued insurance which, under Article 53(3)(c) of the basic Regulation, shall not be subject to another Member State's rules relating to withdrawal, reduction or suspension.
Where the legislation applied by the competent institution does not allow it to determine this amount directly on the grounds that that legislation allocates different values to insurance periods, a notional amount may be established. The Administrative Commission shall lay down the modalities for the determination of that notional amount.
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Article 44 Taking into account of child-raising periods 1. For the purposes of this Article, ‘child-raising period’ shall mean any period which is credited under the pension legislation of a Member State or which provides a supplement to a pension explicitly for the reason that a person has raised a child, irrespective of the method used to calculate those periods and whether they accrue during the time of child-raising or are acknowledged retroactively.
2. Where, under the legislation of the Member State which is competent under Title II of the basic Regulation, no child-raising period is taken into account, the institution of the Member State whose legislation was applicable to the person concerned, in accordance with Title II of the basic Regulation, on the grounds that he or she was pursuing an activity as an employed or self-employed person at the date when, under that legislation, the child-raising period started to be taken into account for the child concerned, shall remain responsible for taking into account that period as a child-raising period under its own legislation, as if such child-raising had taken place in its own territory.
3. Paragraph 2 shall not apply if the person concerned is/or becomes subject to the legislation of another Member State due to the pursuit of an employed or self-employed activity there. 3.12.2009 EN Official Journal of the European Union C 294 E/205
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Article 45 Claim for benefits A) Submission of the claim for benefits under Article 44(2) of the basic Regulation 1. In order to receive benefits under type A legislation under Article 44(2) of the basic Regulation, the claimant shall submit a claim to the institution of the Member State ║ whose legislation was applicable at the time when the incapacity for work occurred followed by invalidity or the aggravation of this invalidity, or to the institution of the place of residence, which shall forward the claim to the former institution.
2. If sickness benefits in cash have been awarded, the expiry date of the period for awarding these benefits shall, where appropriate, be considered as the date of submission of the pension claim.
3. In the case referred to in Article 47(1)(b) of the basic Regulation, the institution with which the person concerned was last insured shall inform the institution which initially paid the benefits of the amount and the date of commencement of the benefits under the applicable legislation. From that date benefits due before aggravation of the invalidity shall be withdrawn or reduced to the supplement referred to in Article 47(2) of the basic Regulation.
B) Submission of other claims for benefits 4. In situations other than those referred to in paragraph 1, the claimant shall submit a claim to the institution of his/her place of residence or to the institution of the last Member State whose legislation was applicable. If the person concerned was not, at any time, subject to the legislation applied by the institution of the place of residence, that institution shall forward the claim to the institution of the last Member State whose legislation was applicable.
5. The date of submission of the claim shall apply in all the institutions concerned.
6. By way of derogation from paragraph 5, if the claimant does not specify all the periods of insurance or residence which were subject to the legislation of other Member States, despite being specifically asked to do so, the date on which the claimant completes his/her initial claim or submits a new claim for the missing periods shall be considered as the date of submission of the claim to the institution applying the legislation in question, subject to more favourable provisions of that legislation.
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Article 46 Certificates and information to be submitted with the claim by the claimant 1. The claim shall be submitted by the claimant in accordance with the provisions of the legislation applied by the institution referred to in Article 45(1) or (4) of the implementing Regulation and be accom panied by the supporting documents required by that legislation. In particular, the claimant shall supply all available relevant information and supporting documents relating to periods of insurance (institutions, identification numbers), employment (employers) or self-employment (nature and place of activity) and residence (addresses) which may have been completed under other legislation, as well as the length of those periods.
2. Where, in accordance with Article 50(1) of the basic Regulation, the claimant requests deferment of the award of old-age benefits ▐ under the legislation of one or more Member States, he/she shall state that in his/her claim and specify under which legislation the deferment ▐ is requested. In order to enable the claimant to exercise that right, the institutions concerned shall, upon the request of the claimant, notify him/her of all the information available to them so that he/she can assess the consequences of concurrent or successive awards of benefits which he/she might claim. C 294 E/206 EN Official Journal of the European Union 3.12.2009
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3. Should the claimant withdraw a claim for benefits provided for under the legislation of a particular Member State, that withdrawal shall not be considered as a concurrent withdrawal of claims for benefits under the legislation of other Member States.
Article 47 Investigation of claims by the institutions A) Investigating institution 1. The institution to which the claim for benefits shall be submitted or forwarded in accordance with the provisions of Article 45(1) or (4) of the implementing Regulation shall be referred to hereinafter as the ‘contact institution’. The institution of the place of residence shall not be referred to as the contact institution if the person concerned has not, at any time, been subject to the legislation which that institution applies.
In addition to investigating the claim for benefits under the legislation which it applies, the contact institution shall promote the exchange of data, communication of decisions and operations necessary for the investigation of the claim by the institutions concerned, supply the claimant, upon request, with any information relevant to the Community aspects of the investigation and keep him/her informed of its progress.
B) Investigation of claims for benefits under Article 44 of the basic Regulation 2. In the case referred to in Article 44(3) of the basic Regulation, the investigating institution shall send all the documents of the person concerned to the institution with which he/she was previously insured, which shall in turn examine the case.
3. Articles 48 to 52 shall not be applicable to the investigation of claims referred to in Article 44 of the basic Regulation.
C) Investigation of other claims for benefits 4. In situations other than those referred to in paragraph 2, the contact institution shall, without delay, send claims for benefits and all the documents which it has available and, where appropriate, the relevant documents supplied by the claimant to all the institutions in question so that they can all start the investigation of the claim concurrently. The contact institution shall notify the other institutions of periods of insurance or residence subject to its legislation. It shall also indicate which documents will be submitted at a later date and supplement the claim as soon as possible.
5. Each of the ▐ institutions in question shall notify the contact institution and the other institutions in question, as soon as possible, of the periods of insurance or residence subject to their legislation.▐
6. Each of the institutions in question shall calculate the amount of benefits in accordance with Article 52 of the basic Regulation▐ and shall notify the contact institution and the other institutions concerned of its decision, of the amount of benefits due and of any information required for the purposes of Articles 53 to 55 of the basic Regulation.
7. Should an institution establish, on the basis of the information referred to in paragraphs 4 and 5 of this Article, that Article 46(2) or Article 57(2) or (3) of the basic Regulation is applicable, it shall inform the contact institution and the other institutions concerned.
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Article 48 Notification of decisions to the claimant 1. Each institution shall notify the claimant of the decision it has taken in accordance with the applicable legislation. Each decision shall specify the remedies and periods allowed for appeals. Once the contact institution has been notified of all decisions taken by each institution , it shall send the claimant and the other institutions concerned a summary of those decisions. A model summary shall be drawn up by the Administrative Commission. The summary shall be sent to the claimant in the language of the institution or, at the request of the claimant, in any language of his/her choice recognised as an official language of the Community institutions in accordance with Article 290 of the Treaty.
2. Where it appears to the claimant, following receipt of the summary, that his/her rights may have been adversely affected by the interaction of decisions taken by two or more institutions, the claimant shall have the right to a review of the decisions by the institutions concerned within the time limits laid down in the respective national legislation. The time limits shall start to run on the date of receipt of the summary. The claimant shall be notified of the result of the review in writing.
Article 49 Determination of the degree of invalidity 1. Where the provisions of Article 46(3) of the basic Regulation are applicable, the investigating insti tution alone shall be authorised to take the decision concerning the degree of invalidity of the claimant. It shall take this decision as soon as it is in a position to determine whether the conditions for eligibility laid down in the applicable legislation are met, taking into account, where appropriate, the provisions of Articles 6 and 51 of the basic Regulation. It shall immediately notify the other institutions in question of this decision.
Where the eligibility criteria, other than those relating to the degree of invalidity, laid down in the applicable legislation are not met, taking into account the provisions of Articles 6 and 51 of the basic Regulation, the investigating institution shall immediately inform the competent institution of the last Member State to whose legislation the claimant was subject. The latter institution shall be authorised to take the decision concerning the degree of invalidity of the claimant if the conditions for eligibility laid down in the applicable legislation are met. It shall immediately notify the other institutions involved of this decision.
2. When determining eligibility it is advisable, where appropriate, ║, to go back under the same procedure as far as the competent institution for invalidity in the Member State to whose legislation the claimant was first subject.
3. Where the provisions of Article 46(3) of the basic Regulation are not applicable, each institution, shall, in accordance with its legislation have the possibility of having the claimant examined by a medical doctor or other expert of its choice to determine the degree of invalidity. However, the institution of a Member State shall take into consideration documents, medical reports and administrative information collected by the institution of any other Member State as if they had been drawn up in its own Member State.
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Article 50 Provisional instalments and advance payment of benefits 1. Notwithstanding Article 7 of this Regulation, any institution which establishes while investigating a claim for benefits that the claimant is entitled to an independent benefit under the applicable legislation, in accordance with Article 52(1)(a) of the basic Regulation, shall pay this benefit immediately. This payment shall be considered provisional if the amount may be affected by the result of the claim investigation procedure. C 294 E/208 EN Official Journal of the European Union 3.12.2009
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2. Where no provisional benefit can be paid to the claimant under paragraph 1 but it is evident from the information received that the claimant is eligible under Article 52(1)(b) of the basic Regulation, the inves tigating institution shall make a recoverable advance payment, the amount of which shall be as close as possible to the amount which will probably be paid under Article 52(1)(b) of the basic Regulation.
3. Each institution which is obliged to pay the provisional benefits or advance payment under paragraphs 1 or 2 shall inform the claimant without delay, specifically drawing his/her attention to the provisional nature of the measure and any rights of appeal in accordance with its legislation.
Article 51 New calculation of benefits 1. Where there is a new calculation of benefits in accordance with Articles 48(3) and (4), 50(4) and 59(1) of the basic Regulation, Article 50 of the implementing Regulation shall be applicable mutatis mutandis.
2. Where there is a new calculation, withdrawal or suspension of the benefit, the institution which took the decision shall inform the person concerned immediately in accordance with the procedure provided for in Article 3(4) to (7) of the implementing Regulation and shall inform each of the institutions in respect of which the person concerned has an entitlement.
Article 52 Measures intended to accelerate the pension calculation process 1. In order to facilitate and accelerate the investigation of claims and the payment of benefits, the institutions to whose legislation a person has been subject shall:
(a) exchange with or make available to institutions of other Member States the elements for identifying persons who change from one applicable national legislation to another, and together ensure that those identification elements are retained and correspond, or, failing that, provide those persons with the means to access their identification elements directly;
(b) sufficiently prior to the minimum age for commencing pension rights or an age to be determined, by the institutions to whose legislation a person has been subject, exchange with or make available to the person concerned and to institutions of other Member States information (periods completed or other important elements) on the pension entitlements of persons who have changed from one applicable legislation to another or, failing that, inform those persons of, or provide them with, the means of familiarising themselves with their prospective benefit entitlement.
2. For the purposes of applying paragraph 1, the Administrative Commission shall determine the elements of information to be exchanged or made available and shall establish the appropriate procedures and mechanisms, taking account of the characteristics, administrative and technical organisation, and the technological means at the disposal of national pension schemes. The Administrative Commission shall ensure the implementation of those pension schemes by organising a follow-up to the measures taken and their application.
3. For the purposes of applying paragraph 1, the institution in the first Member State where a person is allocated a Personal Identification Number (PIN) for the purposes of social security administration should be provided with the information mentioned above.
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Article 53 Coordination measures in a Member State 1. Without prejudice to Article 51 of the basic Regulation, where national legislation includes rules for determining the institution responsible or the scheme applicable or for designating periods of insurance to a specific scheme, those rules shall be applied, taking into account only periods of insurance completed under the legislation of the Member State concerned.
2. Where national legislation includes rules for the coordination of special schemes for civil servants and the general scheme for employed persons, those rules shall not be affected by the provisions of the basic Regulation and of the implementing Regulation.
Chapter V Unemployment benefits
Article 54 Aggregation of periods and calculation of benefits 1. Article 12(1) of the implementing Regulation shall apply mutatis mutandis to Article 61 of the basic Regulation. Without prejudice to the underlying obligations of the institutions involved, the person concerned may submit to the competent institution a document issued by the institution of the Member State to whose legislation he/she was subject in respect of his/her last activity as an employed or self- employed person specifying the periods completed under that legislation.
2. For the purposes of applying Article 62(3) of the basic Regulation, the competent institution of the Member State to whose legislation the person concerned was subject in respect of his/her last activity as an employed or self-employed person shall, at the request of the institution in the place of residence, provide it with all the information necessary to calculate unemployment benefits, in particular the salary or profes sional income received.
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3. For the purposes of applying Article 62 of the basic Regulation and notwithstanding Article 63 of that Regulation, the competent institution of a Member State whose legislation provides that the calculation of benefits varies with the number of members of the family shall also take into account the members of the family of the person concerned residing in another Member State as if they resided in the competent Member State. This provision shall not apply where, in the Member State of residence of members of the family, another person is entitled to unemployment benefits calculated on the basis of the number of members of the family.
Article 55 Conditions and restrictions on the retention of the entitlement to benefits for unemployed persons going to another Member State 1. In order to be covered by the provisions of Article 64 of the basic Regulation, the unemployed person going to another Member State shall inform the competent institution prior to his/her departure and request a document certifying that he/she retains entitlement to benefits under the conditions laid down in Article 64(1)(b) of the basic Regulation.
That institution shall inform the person concerned of his/her obligations and shall provide the abovemen tioned document which includes the following information:
(a) the date on which the unemployed person ceased to be available to the employment services of the competent State;
(b) the period granted in accordance with Article 64(1)(b) of the basic Regulation in order to register as a person seeking work in the Member State to which the unemployed person has gone; C 294 E/210 EN Official Journal of the European Union 3.12.2009
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(c) the maximum period during which the entitlement to benefits may be retained in accordance with Article 64(1)(c) of the basic Regulation;
(d) circumstances likely to affect the entitlement to benefits.
2. The unemployed person shall register as a person seeking work with the employment services of the Member State to which he/she goes in accordance with the provisions of Article 64(1)(b) of the basic Regulation and shall send the document referred to in paragraph (1) to the institution of that Member State. If he/she fails to do this, the institution in the place to which the unemployed person has gone shall contact the competent institution in order to obtain the necessary information.
3. The employment services in the Member State to which the unemployed person has gone to seek employment shall inform the unemployed person of his/her obligations.
4. The institution in the place to which the unemployed person has gone shall immediately send a document to the competent institution containing the date on which the unemployed person registered with the employment services and his/her new address.
If, throughout the period during which the unemployed person retains entitlement to benefits, any circum stance likely to affect the entitlement to benefits arises, the institution in the place to which the unemployed person has gone shall send immediately to the competent institution and to the person concerned a document containing the relevant information.
At the request of the competent institution, the institution in the place to which the unemployed person has gone shall provide relevant information on a monthly basis concerning the follow-up of the unem ployed person's situation, in particular whether the latter is still registered with the employment services and is complying with organised checking procedures.
5. The institution in the place to which the unemployed person has gone shall carry out or arrange for checks to be carried out as if the person concerned were an unemployed person obtaining benefits under its own legislation. It shall immediately inform the competent institution of the occurrence of any circumstance referred to in paragraph 1(d).
6. The competent authorities or competent institutions of two or more Member States may agree amongst themselves a set of measures to promote the job-seeking activities of unemployed persons who go to one of those Member States under Article 64 of the basic Regulation.
Article 56 Unemployed persons who resided in a Member State other than the competent Member State 1. Where the unemployed person decides, in accordance with Article 65(2) of the basic Regulation, to register as a person seeking work in the Member State in which he/she resides as well as in the Member State in which he/she pursued his/her last activity as an employed or self-employed person, he/she shall inform as a priority the institution and employment services of his/her place of residence.
At the request of the employment services of the Member State in which he/she pursued his/her last activity as an employed or self-employed person, the employment services in the place of residence shall send the relevant information concerning the unemployed person's registration and search for employment.
2. Where the legislation applicable in the Member States concerned requires the fulfilment of certain obligations and/or job-seeking activities by the unemployed person, the obligations and/or job-seeking activities by the unemployed person in the Member State of residence shall have priority.
The non-fulfilment by the unemployed person of all the obligations and/or job-seeking activities in the Member State in which he/she pursued his/her last activity shall not affect the benefits awarded in the Member State of residence. 3.12.2009 EN Official Journal of the European Union C 294 E/211
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3. For the purposes of applying Article 65(5)(b) of the basic Regulation, the institution of the Member State to whose legislation the worker was last subject shall inform the institution in the place of residence, when requested to do so by the latter, whether the worker is entitled to benefits under Article 64 of the basic Regulation ║.
Chapter VI Family benefits
Article 57 Priority rules in the event of overlapping For the purposes of applying Article 68(1)(b)(i) and (ii) of the basic Regulation, where the order of priority cannot be established on the basis of the children's place of residence, each Member State concerned shall calculate the amount of benefits including the children not resident within its own territory. When applying Article 68(1)(b)(i), the competent institution of the Member State whose legislation provides for the highest level of benefits shall pay the full amount of such benefits and be reimbursed half this sum by the competent institution of the other Member State up to the limit of the amount provided for in the legislation of the latter Member State.
Article 58 Rules applicable where the applicable legislation and/or the competence to grant family benefits changes 1. Where the applicable legislation and/or the competence to grant family benefits change between Member States during a calendar month, irrespective of the payment dates of family benefits under the legislation of those Member States, the institution which has paid the family benefits by virtue of the legislation under which the benefits have been granted at the beginning of this month shall continue to do so until the end of the month in progress.
2. It shall inform the institution of the other Member State or Member States concerned of the date on which it ceases to pay the family benefits in question. Payment of benefits from the other Member State or Member States concerned shall take effect from that date.
Article 59 Procedure for applying Articles 67 and 68 of the basic Regulation 1. The application for family benefits shall be addressed ▐ to the competent institution. For the purposes of applying Articles 67 and 68 of the basic Regulation, the situation of the whole family shall be taken into account as if all persons involved were subject to the legislation of the Member State concerned and residing there, in particular as regards a person's entitlement to claim such benefits. Where a parent entitled to claim the benefits does not exercise his/her right, an application for family benefits submitted by the other parent, a person treated as a parent, or a person or institution acting as guardian of the child or children, shall be taken into account by the competent institution of the Member State whose legislation is applicable.
2. The institution to which an application is made in accordance with paragraph 1 shall examine the application on the basis of the detailed information supplied by the applicant, ▐ taking into account the overall de facto and legal situation of the applicant's family.
If that institution concludes that its legislation is applicable by priority right in accordance with Article 68(1) and (2) of the basic Regulation, it shall provide the family benefits according to the legislation it applies.
If it appears to that institution that there may be an entitlement to a differential supplement by virtue of the legislation of another Member State in accordance with Article 68(2) of the basic Regulation, that institution shall forward the application, without delay, to the competent institution of the other Member State and inform the person concerned; moreover it shall inform the institution of the other Member State of its decision on the application and the amount of family benefits paid. C 294 E/212 EN Official Journal of the European Union 3.12.2009
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3. Where the institution to which application is made concludes that its legislation is applicable, but not by priority right in accordance with Article 68(1) and (2) of the basic Regulation, it shall take a provisional decision, without delay, on the priority rules to be applied and shall forward the application, in accordance with Article 68(3) of the basic Regulation to the institution of the other Member State, also informing the applicant thereof. That institution shall have two months to take a position on the provisional decision taken.
If the institution to which the application was forwarded does not take a position within two months of receipt of the application, the provisional decision referred to above shall apply and the institution shall pay the benefits provided for under its legislation and inform the institution to which the application was made of the amount of benefits paid.
4. Where there is a difference of views between the institutions concerned about which legislation is applicable by priority, Article 6(2) to (5) of the implementing Regulation shall apply. For this purpose, the institution of the place of residence referred to in Article 6(2) shall be the institution of the child or children's place of residence.
5. If the institution which has supplied benefits on a provisional basis has paid more than the amount for which it is ultimately responsible, it shall claim reimbursement of the excess from the institution with primary responsibility in accordance with the procedure laid down in Article 71.
Article 60 Procedure for applying Article 69 of the basic Regulation For the purposes of applying Article 69 of the basic Regulation, the Administrative Commission shall draw up a list of the additional or special family benefits for orphans covered by that Article. If there is no provision for the institution competent to grant, by priority right, such additional or special family benefits for orphans under the legislation it applies, it shall without delay forward any application for family benefits, together with all relevant documents and information, to the institution of the Member State to whose legislation the person concerned has been subject for the longest period of time and which provides such additional or special family benefits for orphans. In some cases, this may mean referring back, under the same conditions, to the institution of the Member State under whose legislation the person concerned has completed the shortest of his or her insurance or residence periods.
TITLE IV FINANCIAL PROVISIONS
Chapter I Reimbursement of the cost of benefits in application of Article 35(1) and Article 41 of the basic Regulation
SECTION 1 Reimbursement on the basis of actual expenditure Article 61 Principles 1. For the purposes of applying Article 35(1) and Article 41 of the basic Regulation, the actual amount of benefits in kind, as shown in the accounts of the institution that provided them, shall be reimbursed to that institution by the competent institution, except where Article 62 of the implementing Regulation is applicable.
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2. If any or part of the actual amount of the benefits referred to in paragraph 1 is not shown in the accounts of the institution that provided them, the amount to be refunded shall be determined on the basis of a lump-sum payment calculated from all the appropriate references obtained from the data available. The Administrative Commission shall assess the bases to be used for calculation of the lump-sum payment and shall decide the amount thereof.
3. Higher rates than those applicable to the benefits in kind provided to insured persons subject to the legislation applied by the institution providing the benefits referred to in paragraph 1 may not be taken into account in the reimbursement.
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SECTION 2 Reimbursement of benefits on a lump-sum basis
Article 62 Identification of the Member States concerned 1. The Member States referred to in Article 35(2) of the basic Regulation whose legal or administrative structures are such that the use of reimbursement on the basis of actual expenditure is not appropriate are indicated in Annex III to the implementing Regulation.
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2. In the case of the Member States indicated in Annex III to the implementing Regulation, the amount of benefits in kind supplied to family members who do not reside in the same Member State as the insured person, as provided for in Article 17 of the basic Regulation, and to pensioners and members of their family, as provided for in Article 22, Article 24(1) and Articles 25 and 26 of the basic Regulation, shall be reimbursed by the competent institutions to the institutions providing the said benefits, on the basis of a fixed amount established for each calendar year. This fixed amount shall be as close as possible to actual expenditure.
Article 63 Calculation method of the monthly fixed amounts and the total fixed amount
1. For each creditor Member State, the monthly fixed amount per person (F i) for a calendar year shall be determined by dividing the annual average cost per person(Yi ) , broken down by age group (i), by 12 and by applying a reduction (X) to the result in accordance with the following formula:
F i = Yi * 1/12 * (1 – X)
Where:
— the ▐ index (i = 1, 2 and 3) represents the three age groups used for calculating the fixed amounts:
i = 1: persons aged under 20
i = 2: persons aged from 20 to 64
i = 3: persons aged 65 and over
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— Y i represents the annual average cost for persons in age group i, as defined in paragraph 2.
— the coefficient X (0,20 or 0,15) represents the reduction as defined in paragraph 3.
2. The annual average cost per person (Y i ) in age group i shall be obtained by dividing the annual expenditure on all benefits in kind provided by the institutions of the creditor Member State to all persons in the age group concerned subject to its legislation and residing within its territory by the average number of persons concerned in that age group in the calendar year in question. The calculation shall be based on the expenditure under the schemes referred to in Article 23 of the implementing Regulation.
3. The reduction to be applied to the monthly fixed amount shall, in principle, be equal to 20 % (X = 0,20). It shall be equal to 15 % (X = 0,15) for pensioners and members of their family where the competent Member State is not listed in Annex IV to the basic Regulation.
4. For each debtor Member State, the total fixed amount for a calendar year shall be the sum of the products obtained by multiplying, in each age group i, the determined monthly fixed amounts per person by the number of months completed by the persons concerned in the creditor Member State in that age group.
The number of months completed by the persons concerned in the creditor Member State shall be the sum of the calendar months in a calendar year during which the persons concerned were, because of their residence in the territory of the creditor Member State, eligible to receive benefits in kind in that territory at the expense of the debtor Member State. Those months shall be determined from an inventory kept for that purpose by the institution of the place of residence, based on documentary evidence of the entitlement of the beneficiaries supplied by the competent institution.
5. No later than … ( 1 ) , the Administrative Commission shall present a specific report on the appli cation of this Article and in particular on the reductions referred to in paragraph 3. On the basis of that report, the Administrative Commission may present a proposal containing any amendments that prove necessary in order to ensure that the calculation of fixed amounts comes as close as possible to the actual expenditure incurred and the reductions referred to in paragraph 3 do not result in unbalanced payments or double payments for the Member States.
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6. The Administrative Commission shall establish the methods for determining the elements for calcu lating the fixed amounts referred to in the above paragraphs.
7. Notwithstanding paragraphs 1 to 4, Member States may continue to apply Articles 94 and 95 of Regulation (EEC) No 574/72 for the calculation of the fixed amount until … (*) , provided that the reduction referred to in paragraph 3 is applied.
Article 64 Notification of annual average costs The annual average cost per person in each age group for a specific year shall be notified to the Audit Board by the end of the second year following the year in question at the latest. If the notification is not made by this deadline, the annual average cost per person which the Administrative Commission has last determined for a previous year will be taken.
The annual average costs shall be published in the Official Journal of the European Union.
( 1 ) Five years after the entry into force of the implementing Regulation. 3.12.2009 EN Official Journal of the European Union C 294 E/215
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SECTION 3 Common provisions
Article 65 Procedure for reimbursement between institutions 1. The reimbursements between the Member States concerned shall be made as promptly as possible. Every institution concerned shall be obliged to reimburse claims before the deadlines mentioned in this Article, as soon as it is in a position to do so. A dispute concerning a particular claim must not hinder the reimbursement of another or other claims.
2. The reimbursements between the institutions of the Member States, provided for in Articles 35 and 41 of the basic Regulation, shall be made via the liaison body. There may be a separate liaison body for reimbursements under Articles 35 and 41 of the basic Regulation.
Article 66 Deadlines for the introduction and settlement of claims 1. Claims based on actual expenditure shall be introduced to the liaison body of the debtor Member State within twelve months of the end of the calendar half-year during which those claims were recorded in the accounts of the creditor institution.
2. Claims of fixed amounts for a calendar year shall be introduced to the liaison body of the debtor Member State within the six-month period following the month during which the average costs for the year concerned were published in the Official Journal of the European Union. The inventories provided for in Article 63(4) of the implementing Regulation shall be presented by the end of the year following the reference year.
3. Claims introduced after the deadlines specified in paragraphs 1 and 2 shall not be considered.
4. The claims shall be paid to the liaison body of the creditor Member State referred to in Article 65 of the implementing Regulation by the debtor institution within six months of the end of the month during which they were introduced to the liaison body of the debtor Member State. This does not apply to claims which the debtor institution has rejected for a relevant reason within that period.
5. Any disputes concerning a claim shall be settled, at the latest, within one year of the month in which the claim was introduced.
6. The Audit Board shall facilitate the final closing of accounts in cases where a settlement cannot be reached within the period referred to in paragraph 5, and, upon a reasoned request by one of the parties, shall give its opinion on a dispute within six months of the month in which the matter was referred to it.
Article 67 Interest on late payments and down payments 1. From the end of the six-month period referred to in Article 66(4) of the implementing Regulation, interest may be charged by the creditor institution on outstanding claims, unless the debtor institution has made, within six months of the end of the month during which the claim was introduced, a down payment of at least 90 % of the total claim introduced pursuant to Article 66(1) or (2) of the imple menting Regulation. For those parts of the claim not covered by the down payment, interest may be charged only from the end of the one-year period referred to in Article 66(5) of the implementing Regulation. C 294 E/216 EN Official Journal of the European Union 3.12.2009
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2. The interest shall be calculated on the basis of the reference rate applied by the European Central Bank to its main refinancing operations. The reference rate applicable shall be that in force on the first day of the month on which the payment is due.
3. No liaison body shall be obliged to accept a down payment as provided for in paragraph 1. However, if a liaison body declines such an offer the creditor institution shall no longer be entitled to charge interest on late payments related to the claims in question other than under the second sentence of paragraph 1.
Article 68 Statement of annual accounts 1. The Administrative Commission shall establish the claims situation for each calendar year in accordance with Article 72(g) of the basic Regulation, on the basis of the Audit Board's report. To this end, the liaison bodies shall notify the Audit Board, by the deadlines and according to the procedures laid down by the latter, of the amount of the claims introduced, settled or contested (creditor position) and the amount of claims received, settled or contested (debtor position).
2. The Administrative Commission may perform any appropriate checks on the statistical and accounting data used as the basis for drawing up the annual statement of claims provided for in paragraph 1 in order, in particular, to ensure that they comply with the rules laid down under this Title.
Chapter II Reimbursement of unemployment benefits pursuant to Article 65 of the basic Regulation
Article 69 Reimbursement of unemployment benefits If there is no agreement in accordance with Article 65(8) of the basic Regulation, ▐ the institution of the place of residence shall request reimbursement of unemployment benefits by virtue of Article 65(6) and (7) of the basic Regulation from the institution of the Member State to whose legislation the beneficiary was last subject. The request shall be made within six months of the end of the calendar half-year during which the last payment of unemployment benefit, for which reimbursement is requested, was made. The request shall indicate the amount of benefit paid during the three or five month-period referred to in Article 65(6) and (7) of the basic Regulation, ▐ the period for which the benefits were paid and the identification data of the unemployed person. The claims shall be introduced and paid via the liaison bodies of the Member States concerned.
There is no requirement to consider requests introduced after the time limit referred to in the first paragraph.
The provisions of Article 65(1) and Article 66(4) to (6) of the implementing Regulation shall apply mutatis mutandis.
From the end of the six-month period referred to in Article 66(4) of the implementing Regulation, interest may be charged by the creditor institution on outstanding claims. That interest shall be calculated in accordance with Article 67(2) of the implementing Regulation. 3.12.2009 EN Official Journal of the European Union C 294 E/217
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The maximum amount of the reimbursement referred to in the third sentence of Article 65(6) of the basic Regulation is, in each individual case, the amount of the benefit to which a person concerned would be entitled according to the legislation of the Member State that he/she was last subject if registered with the employment services of that Member State. However, in relations between Member States listed in Annex XY, the competent institutions of one of those Member States to whose legislation the person concerned was last subject shall determine the maximum amount in each individual case on the basis of the average amount of unemployment benefits provided under the legislation of that Member State in the preceding calendar year.
Chapter III Recovery of benefits paid in excess, recovery of provisional payments, compensation, assistance with recovery
SECTION 1 Principles
Article 70 1. For the purposes of applying Article 84 of the basic Regulation and within the framework defined therein, recovery of claims shall, wherever possible, be by way of compensation either between the creditor institutions (hereinafter referred to as ‘the applicant parties’), and the debtor institutions (hereinafter referred to as ‘the requested parties’), or vis-à-vis the insured person in accordance with Articles 71 and 72 of the implementing Regulation.
If it has not been possible to recover all or any of the claim via the compensation procedure referred to in the previous paragraph, the remainder of the amount payable by the beneficiary shall be recovered in accordance with the provisions of Articles 73 to 82 of the implementing Regulation.
2. The liaison body shall be considered as the requested party in respect of the claims addressed to it.
SECTION 2 Compensation
Article 71 Cash benefits received unduly or in excess 1. If the institution of a Member State has paid benefits to a recipient in excess of his or her entitlement, that institution shall, within the terms and limits laid down in the legislation it applies, request the institution of any other Member State responsible for paying benefits to that beneficiary to deduct the amount paid in excess from further sums owed to the beneficiary. The latter institution shall deduct the amount concerned subject to the conditions and limits applying to this kind of compensation system by the legislation it applies in the same way as if it had made the overpayments itself, and shall transfer the amount deducted to the creditor institution.
2. In connection with Article 6, within two months at the latest after the applicable legislation has been determined or the institution responsible for paying the benefits identified, the institution that provisionally paid the cash benefits shall draw up a statement of the amount owed to it by the competent institution. Where contributions have been paid provisionally by the beneficiary and/or his or her employer, these shall be taken into account in establishing the amount owed. C 294 E/218 EN Official Journal of the European Union 3.12.2009
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The competent institution responsible for paying the benefits shall deduct the amount due in respect of the provisional payment from the amounts it owes to the beneficiary. The debtor institution shall deduct this amount subject to the conditions and limits applying to this kind of compensation system under the legislation it applies and transfer the amount deducted immediately to the creditor institution.
3. If an insured person has received social welfare assistance in one Member State during a period in which he/she was entitled to benefits under the legislation of another Member State, the body which provided the assistance may, if it is legally entitled to reclaim the benefits due to the said person, request the institution of any other Member State responsible for paying benefits in favour of that person to deduct the amount of assistance paid from the amounts which the latter pays to the said person.
This provision shall apply mutatis mutandis to any family member of an insured person who has received assistance in the territory of a Member State during a period in which the insured person was entitled to benefits under the legislation of another Member State in respect of the family member concerned.
The creditor institution shall send a statement of the amount due to the debtor institution, which shall then deduct the amount subject to the conditions and limits laid down for this kind of compensation system by the legislation it applies and transfer the amount immediately to the creditor body.
4. In the cases specified in paragraphs 2 and 3, the competent institution shall address a statement to the person concerned showing the amounts still due or paid in excess according to the legislation it applies.
Article 72 Contributions paid unduly or in excess In the terms of Article 6, an institution which has provisionally received contributions from an insured person and/or his/her employer shall not reimburse the amounts in question to the persons who paid them until it has ascertained from the competent institution the sums due to it under Article 6(4).
SECTION 3 Recovery
Article 73 Requests for information 1. The requested party shall provided the applicant party at the latter's request with all relevant information for recovery of a claim.
In order to obtain such information, the requested party shall make use of the powers conferred under the laws, regulations or administrative provisions applicable to the recovery of similar claims arising in its own Member State.
2. The request for information shall indicate the name, address, and any other information to which the applicant party normally has access with regard to the person to whom the information to be provided relates and the nature and amount of the claim in respect of which the request is being made.
3. The requested party shall not be obliged to transmit information it would not be able to obtain for the purposes of recovering similar claims arising in its own Member State.
4. The requested party shall inform the applicant party of any reasons preventing the information requested from being supplied. 3.12.2009 EN Official Journal of the European Union C 294 E/219
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Article 74 Notification 1. At the request of the applicant party, the requested party shall notify the addressee, in accordance with the rules of law in force on the notification of similar acts in its own Member State, of all instruments and decisions, including those of a judicial nature, relating to a claim or its recovery, emanating from the Member State of the applicant party.
2. The request for notification shall indicate the name and address of the addressee and any other information concerning the latter to which the applicant party would normally have access, the nature and the subject of the instrument or decision to be notified and, where applicable, the name, address and any other information to which the applicant party would normally have access on the debtor and the claim to which the instrument or decision relates, and any other useful information.
3. The requested party shall inform the applicant party immediately of the action taken in response to the request for notification and, more particularly, of the date on which the decision or instrument was forwarded to the addressee.
Article 75 Request for recovery 1. The request for recovery of contributions or of benefits paid unduly or in excess, addressed by the applicant party to the requested party, shall be accompanied by an official or certified copy of the instrument permitting its enforcement, issued in the Member State of the applicant party and, where applicable, the original or a certified copy of other documents needed for recovery.
2. The applicant body may make a request for recovery only if:
(a) the claim and/or the instrument permitting its enforcement are not contested in the Member State, except where the second subparagraph of Article 78(2) is applied;
(b) it has, in its own Member State, applied the recovery procedure available to it on the basis of the instrument referred to in paragraph 1, and the measures taken will not result in the payment in full of the claim.
3. The recovery request shall indicate:
(a) the name, address and any other relevant information relating to the identification of the person concerned and/or to the third party holding his or her assets;
(b) any information relevant for identifying the requested party;
(c) the instrument permitting enforcement, issued in the Member State of the applicant party;
(d) the nature and amount of the claim, including the principal, the interest and any other penalties, fines and costs due, indicated in the currencies of both parties’ Member States;
(e) the date of notification of the instrument to the addressee by the applicant party and/or the requested party;
(f) the date from which and the period during which enforcement is possible under the laws in force in the Member State of the applicant party;
(g) any other relevant information.
4. The request for recovery shall also contain a statement by the applicant party confirming that the conditions laid down in paragraph 2 have been fulfilled.
5. As soon as any relevant information relating to the matter which gave rise to the request for recovery comes to the knowledge of the applicant party, the latter shall forward it to the requested party. C 294 E/220 EN Official Journal of the European Union 3.12.2009
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Article 76 Instrument permitting enforcement of the recovery 1. The instrument permitting enforcement of recovery of the claim shall be directly recognised and treated automatically as an instrument permitting the enforcement of a claim of the requested party.
2. Notwithstanding paragraph 1, the instrument permitting enforcement of the claim may, where appro priate and in accordance with the provisions in force in the Member State of the requested body, be accepted, recognized, supplemented, or replaced by an instrument authorising enforcement in the territory of that Member State.
Within three months of the date of receipt of the request for recovery, the competent authorities shall endeavour to complete the formalities for such acceptance, recognition, supplementing or replacement, except where the provisions of the third subparagraph are applied. They may not ║refuse to complete such formalities, if the instrument permitting enforcement is properly drawn up. If the three-month deadline is exceeded, the requested party shall inform the applicant party of the reasons for the delay.
If any of these formalities should give rise to contestation concerning the claim and/or the instrument permitting enforcement issued by the applicant party, Article 78 shall apply.
Article 77 Payment arrangements and deadlines 1. Claims shall be recovered in the currency of the Member State of the requested party. The requested party shall transfer the entire amount of the recovered claim to the applicant party.
2. Where the laws, regulations or administrative provisions in force in its own Member State so permit, and after consulting the applicant party, the requested party may allow the debtor time to pay or authorise payment by instalment. Any interest charged by the requested party in respect of such extra time to pay shall also be remitted to the applicant party.
From the date on which the instrument permitting enforcement is directly recognised or accepted, recognised, supplemented or replaced in accordance with Article 76, interest shall be charged for late payment under the laws, regulations and administrative provisions in force in the Member State of the requested party and ║ remitted to the applicant party.
Article 78 Contestation of the claim or of the instrument permitting enforcement of its recovery 1. If, in the course of the recovery procedure, the claim and/or the instrument permitting its enforcement issued in the Member State of the applicant party are contested by the party concerned, the action shall be brought by the latter before the competent body of the Member State of the applicant party in accordance with the laws in force in that Member State. The applicant party shall notify the requested party of this action. The requested party may also be notified of it by the party concerned.
2. As soon as the requested party has received the notification referred to in paragraph 1 either from the applicant party or from the party concerned, it shall suspend the enforcement procedure pending the decision of the body competent in the matter, unless a request to the contrary is made by the applicant party in accordance with the second subparagraph. Should the requested party deem it necessary, it may take precautionary measures to guarantee recovery in as far as the laws or regulations of its own Member State allow such action for similar claims. 3.12.2009 EN Official Journal of the European Union C 294 E/221
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Notwithstanding the first subparagraph ║, the applicant party may, in accordance with the laws, regulations and administrative practices in force in its own Member State, request the requested party to recover a contested claim, provided that the laws, regulations and administrative practices in the requested party's Member State so permit. If the contestation is settled in favour of the debtor, the applicant party shall be liable to reimburse any sums recovered, together with any compensation due in accordance with the legislation in force in the requested party's Member State.
3. Where the contestation concerns enforcement measures taken in the Member State of the requested party, the action shall be brought before the competent body of that Member State in accordance with its laws and regulations.
4. Where the competent body before which the action is brought in accordance with paragraph 1 is a judicial or administrative tribunal, the decision of that tribunal, if favourable to the applicant party and permitting recovery of the claim in the Member State of the applicant party, shall constitute the ‘instrument permitting enforcement’ and recovery of the claim shall proceed on the basis of that decision.
Article 79 Limits applying to assistance The applicant party shall not be obliged:
(a) to grant the assistance provided for in Articles 73 to 78 of the implementing regulation if recovery of the claim may, because of the situation of the debtor, create serious economic or social difficulties in the debtor's Member State, in as far as the laws, regulations or administrative practices in the Member State of the applicant party allow such action for similar national claims;
(b) to grant the assistance provided for in Articles 73 to 78 of the implementing regulation, if the initial request under Articles 73 to 75 of the implementing regulation, applies to claims more than five years old, counted from the time the instrument permitting enforcement is established in accordance with the laws, regulations or administrative practices of the Member State of the applicant party up to the date of the request. However, if the claim or instrument is contested, the time limit shall start to run from the moment that the applicant state establishes that the claim or the instrument may no longer be contested.
Article 80 Precautionary measures Upon reasoned request by the applicant party, the requested party shall take precautionary measures to ensure recovery of a claim in as far as the laws and regulations in force in the Member State of the requested party so permit.
For the purposes of implementing the above paragraph, the provisions and procedures laid down in Articles 73 to 75 and Article 77 of the implementing Regulation shall apply mutatis mutandis.
Article 81 Costs 1. No enforcement costs are payable where the debt is recovered via the compensation method provided for in Articles 71 and 72 of the implementing Regulation.
2. The requested party shall also recover from the person concerned any costs linked to recovery pursuant to Articles 73 to 77 and Article 81 of the implementing regulation, and retain them, in accordance with the laws and regulations of that party's Member State applicable to similar claims. C 294 E/222 EN Official Journal of the European Union 3.12.2009
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3. The Member States shall waive all claims upon each other for reimbursement of costs arising from the mutual assistance afforded under the basic Regulation or the implementing Regulation.
4. Where recovery poses a specific problem or concerns a very large amount in costs, the requesting and requested parties may agree reimbursement arrangements specific to the case in question.
5. The competent authority of the applicant party's Member State shall remain liable to the competent authority of the requested party's Member State for any costs and losses incurred as a result of actions deemed to be unfounded as far as the substance of the claim or the validity of the instrument issued by the applicant party is concerned.
TITLE V MISCELLANEOUS, TRANSITIONAL AND FINAL PROVISIONS
Article 82 Administrative checks and medical examination 1. Without prejudice to the provisions of Article 27, where a recipient of benefits as referred to in Chapters I, II and IV of Title III is staying or residing within the territory of a Member State other than that in which the debtor institution is located, the medical examination shall be carried out, at the request of the debtor institution, by the institution of the beneficiary's place of stay or residence as provided for in the legislation applied by that institution. In such case, the debtor institution shall be bound by the findings of the institution of the place of stay or residence.
If, by virtue of Article 82 of the basic Regulation, the institution of the place of stay or residence is called upon to perform a medical examination, it shall follow the procedures laid down by the legislation it applies. If no such procedures have been specified, it shall consult the debtor institution on the procedures to be followed.
The debtor institution shall reserve the right to have the beneficiary examined subsequently by a doctor of its choice. However, the beneficiary may be asked to return to the Member State of the debtor institution only if he or she is able to make the journey without prejudice to his/her health and the cost of travel and accommodation is paid for by the debtor institution.
2. Where a recipient of benefits as referred to in Chapters I, II and IV of Title III is staying or residing in the territory of a Member State other than that in which the debtor institution is located, the administrative check shall, at the request of the debtor institution, be performed by the institution of the beneficiary's place of stay or residence. The debtor institution shall inform the institution of the place of stay or residence of the points to be covered by the administrative check. If this information is not provided, the institution of the place of stay or residence shall undertake the check in accordance with its own legislation.
The institution of the place of stay or residence shall forward a report to the debtor institution that requested the check.
Article 83 Notifications 1. The Member States shall notify the ║Commission of the details of the bodies defined in Article 1(m), (q) and (r) of the basic Regulation ▐ and Article 1(2)(a) and (b) of the implementing Regulation, and the institutions designated in accordance with the implementing Regulation.
2. The bodies specified in paragraph 1 shall be provided with an electronic identity in the form of an identification code and electronic address. 3.12.2009 EN Official Journal of the European Union C 294 E/223
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3. The Administrative Commission shall establish the structure, content and modalities, including the common format and model, for notification of the details specified in paragraph 1.
4. Annex IV to the implementing Regulation gives details of the public data base containing the information specified in paragraph 1. The database shall be established and managed by the Commission. The Member States shall, however, be responsible for the input of their own national contact information into this database. Moreover, the Member States shall ensure the accuracy of the input of the national contact information required under paragraph 1.
5. The Member States shall be responsible for keeping the information specified in paragraph 1 up to date.
▐
Article 84 Information 1. The Administrative Commission shall prepare the information needed to ensure that the parties concerned are aware of their rights and the administrative formalities required to assert them. This information shall, where possible, be disseminated electronically via publication on line on sites accessible to the public. The Administrative Commission shall ensure that the information is regularly updated.
2. The Advisory Committee referred to in Article 75 of the basic Regulation may issue opinions and recommendations on improving the information and its dissemination.
3. The Member States shall ensure that the necessary information is made available to the persons covered by the basic Regulation in order to inform them of the changes introduced by the basic Regulation and by the implementing Regulation to enable them to assert their rights.
4. The competent authorities shall ensure that their institutions are aware of and apply all the Community provisions, legislative or otherwise, including the decisions of the Administrative Commission, in the areas covered by and within the terms of the basic Regulation and the implementing Regulation.
Article 85 Currency conversion For the purposes of applying the basic Regulation and the implementing Regulation, the exchange rate between two currencies shall be the reference rate published by the European Central Bank.
Article 86 Statistics The competent authorities shall compile statistics on the application of the basic Regulation and the imple menting Regulation and forward them to the secretariat of the Administrative Commission. These data shall be collected and organised according to the plan and method defined by the Administrative Commission. The Commission shall be responsible for disseminating the information.
Article 87 Amendment of the Annexes Annexes I, II, III and IV to the implementing Regulation and Annexes I, VI, VII, VIII and IX of the basic Regulation may be amended by Commission Regulation at the request of the Member State(s) concerned or their competent authorities, subject to the unanimous agreement of the Administrative Commission. C 294 E/224 EN Official Journal of the European Union 3.12.2009
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Article 88 Transitional provisions The provisions of Article 87 of the basic Regulation shall apply to the situations covered by the implementing Regulation.
Article 89 Repeal 1. ║Regulation (EEC) No 574/72 is repealed with effect from … (*) ║
However, Regulation (EEC) No 574/72 shall remain in force and continue to have legal effect for the purposes of:
(a) Council Regulation (EC) No 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by those provisions solely on the grounds of their nationality ( 1) until such time as the said Regulation is repealed or amended;
(b) Council Regulation (EEC) No 1661/85 of 13 June 1985 laying down the technical adaptations to the Community rules on social security for migrant workers with regard to Greenland ( 2), until such time as the said Regulation is repealed or amended;
(c) the Agreement on the European Economic Area ( 3), the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons ( 4) and other agreements containing a reference to Regulation (EEC) No 574/72, until such time as the said agreements are amended on the basis of this Regulation.
2. In Council Directive 98/49/EC of 29 June 1998 on safeguarding the supplementary pension rights of employed and self-employed persons moving within the Community ( 5 ) the references to Regulation (EEC) No 574/72 shall be understood as referring to this Regulation.
Article 90 Final provisions This Regulation shall enter into force six months after the day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at ║,
For the European Parliament For the Council The President The President
(*) The date of entry into force of this Regulation. ( 1 ) OJ L 124, 20.5.2003, p. 1. ( 2 ) OJ L 160, 20.6.1985, p. 7. ( 3 ) OJ L 1, 3.1.1994, p. 1. ( 4 ) OJ L 114, 30.4.2002, p. 6. ( 5 ) OJ L 209, 25.7.1998, p. 46. 3.12.2009 EN Official Journal of the European Union C 294 E/225
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ANNEX I
Implementing provisions for bilateral agreements remaining in force and new implementing provisions for bilateral agreements (Article 8(1) and Article 9(2))
ANNEX II
Special schemes for civil servants (Articles 32 and 41) A. Special schemes for civil servants not covered by the provisions of Title III, Chapter 1 of Regulation (EC) No 883/2004 concerning benefits in kind 1. Germany Versorgungssystem für Beamte (sickness scheme for civil servants) 2. Spain Mutualismo administrativo (special scheme for civil servants, the armed forces and court administrative officials) B. Special schemes for civil servants not covered by the provisions of Title III, Chapter 2 of Regulation (EC) No 883/2004 concerning benefits in kind 1. Germany Unfallfürsorge für Beamte (accident scheme for civil servants)
ANNEX III
Member States reimbursing the cost of benefits on a lump-sum basis (Article 62(1))
ANNEX IV
Competent authorities and institutions, institutions of the place of residence and stay, access points, institutions and bodies designated by the competent authorities (Article 83(4)) C 294 E/226 EN Official Journal of the European Union 3.12.2009
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Coordination of social security systems ***I P6_TA(2008)0349 European Parliament legislative resolution of 9 July 2008 on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 883/2004 on the coordination of social security systems, and determining the content of Annex XI (COM(2006)0007 — C6-0029/2006 — 2006/0008(COD)) (2009/C 294 E/50) (Codecision procedure: first reading)
The European Parliament,
— having regard to the Commission proposal to the European Parliament and the Council (COM(2006)0007),
— having regard to the Commission proposal to the European Parliament and the Council (COM(2007)0376),
— having regard to Article 251(2) and Articles 42 and 308 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0029/2006),
— having regard to Rules 42 and 51 of its Rules of Procedure,
— having regard to the report of the Committee on Employment and Social Affairs (A6-0229/2008),
1. Approves the Commission proposal COM(2006)0007 as amended;
2. Considers procedure 2007/0129(COD) to have lapsed as a result of the incorporation into procedure 2006/0008(COD) of the contents of the Commission proposal COM(2007)0376;
3. Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposals substantially or replace them with other texts;
4. Instructs its President to forward its position to the Council and the Commission.
P6_TC1-COD(2006)0008 Position of the European Parliament adopted at first reading on 9 July 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council amending Regulation (EC) No 883/2004 on the coordination of social security systems, and determining the content of its annexes (Text with relevance for the EEA and for Switzerland)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 42 and 308 thereof,
Having regard to the proposal from the Commission ║, 3.12.2009 EN Official Journal of the European Union C 294 E/227
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Having regard to the opinion of the European Economic and Social Committee ( 1 ),
Having regard to the opinion of the Committee of the Regions ( 2),
Acting in accordance with the procedure laid down in Article 251 of the Treaty ( 3 ),
Whereas:
(1) Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems ( 4 ) provides for the content of Annexes II, X and XI to that Regulation to be determined before the date of its application.
(2) Annexes I, III, IV, VI, VII, VIII and IX to Regulation (EC) No 883/2004 should be adapted to take into account both the requirements of the Member States that have acceded to the European Union since that Regulation was adopted and recent developments in other Member States.
(3) Article 56(1) and Article 83 of Regulation (EC) No 883/2004 ▐ provide for special provisions concerning the application of the legislation of the Member States to be set out in Annex XI to that Regulation. Annex XI is intended to take into account the particularities of the various social security systems of Member States in order to facilitate the application of the rules on coordination.
(4) A number of Member States have requested for entries concerning the application of their social security legislation to be included in Annex XI and have provided the Commission with legal and practical explanations of their legislation and systems.
(5) In accordance with the need for rationalisation and simplification of the new Regulation, a common approach is needed in order to ensure that entries in respect of different Member States which are of a similar nature or pursue the same objective are, in principle, dealt with in a similar manner.
(6) As the aim of Regulation (EC) No 883/2004 is to coordinate social security legislation, for which Member States are exclusively responsible, entries that are not compatible with its purpose or objectives ║, and entries seeking only to clarify the interpretation of national legislation, should not be included in that Regulation.
(7) Some of the Member States’ requests have raised issues that are common to several Member States. It is ║ appropriate to deal with those issues at a more general level, either by clarification in the body of Regulation (EC) No 883/2004 or in another of its annexes, which should ║ be amended accordingly, or through ║ provisions in the implementing regulation referred to in Article 89 of that Regulation, rather than by inserting similar entries in Annex XI for several Member States.
(8) It is also appropriate to deal with certain specific issues in annexes other than Annex XI, in accordance with their purpose and content ║ in order to ensure that the annexes to║ Regulation (EC) No 883/2004 are coherent internally and between each other.
(9) In order to facilitate the use of ║ Regulation (EC) No 883/2004 by citizens ║ asking for information or making claims to the institutions of the Member States, references to the legislation of the Member States concerned should also be made ║ in the original language wherever necessary in order to avoid any possible misunderstanding.
(10) Regulation (EC) No 883/2004 should therefore be amended accordingly.
(11) Regulation (EC) No 883/2004 provides that it is to apply from the date of entry into force of the implementing regulation. This Regulation should therefore apply from the same date.
( 1 ) OJ C 161, 13.7.2007, p. 61. ( 2 ) OJ C … ( 3 ) Position of the European Parliament of 9 July 2008. ( 4 ) OJ L 166, 30.4.2004, p. 1. Corrected version at OJ L 200, 7.6.2004, p. 1. C 294 E/228 EN Official Journal of the European Union 3.12.2009
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HAVE ADOPTED THIS REGULATION:
Article 1 Regulation (EC) No 883/2004 is hereby amended as follows:
1. The following recital is inserted after Recital 5:
‘(5a) Some of the Member States’ entries in Annex VI of Regulation (EEC) No 1408/71 are now covered by certain general provisions in Regulation (EC) No 883/2004. Under the title “Equal treatment of benefits, income, facts or events”, for example, Article 5 of Regulation (EC) No 883/2004 provides that where, under the legislation of the competent Member State, legal effects are attributed to the occurrence of certain facts or events, such legal effects must be attributed to equivalent facts or events occurring in another Member State. Consequently, a number of entries in Annex VI of Regulation (EEC) No 1408/71 have become otiose.’
2. The following recital is inserted after Recital 8:
‘(8a) The family members of former frontier workers should be able to continue medical treatment in the former country of employment of the insured person after his or her retirement.’
3. The following recital is inserted after Recital 17:
‘(17a) When legislation becomes applicable to a person under Title II of this Regulation, the conditions for affiliation and entitlement to benefits should be defined by the legislation of the competent Member State, while respecting Community law.’
4. The following recital is inserted after Recital 18:
‘(18a) The principle of unity of the applicable legislation is of great importance and should be enhanced. This should not mean, however, that the grant of a benefit alone, in accordance with this Regulation and comprising the payment of insurance contributions or insurance coverage for the beneficiary, renders the legislation of the Member State whose institution has granted that benefit the applicable legislation for that person (*). ______(*) Joined cases C-502/01 and C-31/02, Gaumain-Cerri and Barth, ECR [2004] I-6483.’
5. In Article 1, the following point is inserted after point (v):
‘(va) “benefits in kind” means those benefits in kind provided for under the legislation of a Member State that are intended to supply, make available, pay directly or reimburse the cost of medical care or products and services ancillary to such care, including long-term care benefits in kind.’
6. Article 3(5) is replaced by the following:
‘5. This Regulation shall not apply to:
(a) social and medical assistance; or
(b) benefits in regard to which a Member State assumes the liability for damages to persons and provides compensation, such as those for victims of war and military action or their conse quences; victims of crime, assassination or terrorist acts; victims of damage occasioned by agents of the Member State in the course of their duties; or victims who have suffered a disadvantage for political or religious reasons or for reasons of descent.’
7. ║ Article 14(4) is replaced by the following:
‘4. Where the legislation of a Member State makes admission to voluntary insurance or optional continued insurance conditional upon residence in that Member State or upon previous activity as an employed or self-employed person, Article 5(b) shall apply only to persons who have been subject, at some earlier stage, to the legislation of that Member State on the basis of an activity as an employed or self-employed person. 3.12.2009 EN Official Journal of the European Union C 294 E/229
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5. Where the legislation of a Member State makes admission to a voluntary insurance or optional continued insurance scheme conditional upon a person having completed insurance periods, such admission shall ║ be granted only to persons who have previously completed insurance periods in that Member State under the same scheme.’
8. Article 18(2) is replaced by the following:
‘2. The members of the family of a frontier worker shall be entitled to benefits in kind during their stay in the competent Member State. For so long as Annex III remains in force, however, where the competent Member State is listed in Annex III, the members of the family of a frontier worker who reside in the same Member State as the frontier worker shall be entitled to benefits in kind in the competent Member State only under the conditions laid down in Article 19(1).’
9. Article 28(1) is replaced by the following:
‘1. A frontier worker who has retired because of old age or invalidity is entitled in the event of sickness to continue to receive benefits in kind in the Member State where he or she last pursued his or her activity as an employed or self-employed person, in so far as this constitutes the continuation of treatment which began in that Member State. The words “continuation of treatment” mean the continued investigation, diagnosis and treatment of an illness for its entire duration.
The first subparagraph shall apply mutatis mutandis to the members of the family of the retired frontier worker.’
10. ║ Article 51(3) is replaced by the following:
‘3. Where the legislation or specific scheme of a Member State makes the acquisition, retention or recovery of the right to benefits conditional upon the person concerned being insured at the time of the materialisation of the risk, this condition shall be regarded as having been satisfied if that person has been previously insured under the legislation or specific scheme of that Member State and if he or she is, at the time of the materialisation of the risk, insured under the legislation of another Member State for the same risk or, failing that, a benefit is due under the legislation of another Member State for the same risk. The latter condition shall, however, be deemed to be fulfilled in the cases referred to in Article 57.’
11. ║ Article 52(4) is replaced by the following:
‘4. Where the calculation pursuant to paragraph 1(a) in one Member State invariably results in the independent benefit being equal to or higher than the pro rata benefit, calculated in accordance with paragraph 1(b), the competent institution shall waive the pro rata calculation, on condition that:
(a) such a situation is set out in part 1 of Annex VIII;
(b) no legislation containing rules against overlapping, referred to in Articles 54 and 55, is applicable unless the conditions laid down in Article 55(2) are fulfilled; and
(c) Article 57 is not applicable in relation to periods completed under the legislation of another Member State in the circumstances set out in this specific case.’
12. In Article 52, the following paragraph is added:
‘4a. Notwithstanding the provisions of paragraphs 1, 2 and 3, the pro rata calculation shall not apply to schemes providing benefits in respect of which periods of time are of no relevance to the calculation, subject to such schemes being listed in part 2 of Annex VIII. In such cases, the person concerned shall be entitled to the benefit calculated in accordance with the legislation of the Member State concerned.’
13. In Article 56(1)(c), the words ‘where necessary’ are inserted before the words ‘in accordance with the procedures laid down in Annex XI ║’. C 294 E/230 EN Official Journal of the European Union 3.12.2009
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14. In Article 56, the following paragraph is inserted after paragraph 1:
‘1a. In the event that paragraph 1(c) is not applicable because the legislation of a Member State provides for the benefit to be calculated on the basis of elements other than periods of insurance or residence which are not linked to time, the competent institution shall take into account, in respect of each period of insurance or residence completed under the legislation of any other Member State, the amount of the capital accrued, the capital which is considered as having been accrued or any other element for the calculation under the legislation it administers divided by the corresponding units of periods in the pension scheme concerned.’
15. In Article 57, the following paragraph is added:
‘3a. This Article shall not apply to schemes listed in part 2 of Annex VIII.’
16. Article 62(3) is replaced by the following:
‘3. By way of derogation from paragraphs 1 and 2, as far as the unemployed persons covered by Article 65(5)(a) are concerned, the institution of the place of residence shall take into account the salary or professional income received by the person concerned in the Member State to whose legislation he or she was subject during his or her last activity as an employed or self-employed person, in accordance with the Implementing Regulation.’
17. The following article is inserted after Article 68:
‘Article 68a Provision of benefits In the event that family benefits are not used by the person to whom they should be provided for the maintenance of the members of the family, the competent institution shall discharge its legal obligations by providing the said benefits to the natural or legal person in fact maintaining the members of the family, at the request and through the agency of the institution in their Member State of residence or of the designated institution or body appointed for that purpose by the competent authority of their Member State of residence.’
18. In Article 87, the following paragraph is inserted after paragraph 10:
‘10a. Annex III shall be repealed five years after the date of application of this Regulation.’
19. The Annexes are amended in accordance with the Annex to this Regulation.
Article 2 This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.
It shall apply from the date of entry into force of the implementing regulation referred to in Article 89 of Regulation (EC) No 883/2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at ║,
For the European Parliamen For the Council The President The President 3.12.2009 EN Official Journal of the European Union C 294 E/231
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ANNEX
The Annexes to Regulation (EC) No 883/2004 are amended as follows.
1. Annex I, Part I is amended as follows:
(a) after the entry under the heading ‘A. BELGIUM’, the following entry is inserted:
‘Aa. BULGARIA Maintenance payments made by the state under Article 92 of the Family Code;’
(b) after the entry ‘C. GERMANY’, the following entries are inserted:
‘Ca. ESTONIA Maintenance allowances under the Maintenance Allowance Act of 21 February 2007
Cb. SPAIN Advances of maintenance payments under the Royal Decree 1618/2007 of 7 December 2007;’
(c) after the entry under the heading ‘D. FRANCE’, the following entries are inserted:
‘Da. LITHUANIA Payments from the Children's Maintenance Fund under the Law on Children's Maintenance Fund
Db. LUXEMBOURG Advances and recovery of maintenance payments within the meaning of the Act of 26 July 1980;’
(d) after the entry under the heading ‘E. AUSTRIA’, the following entry is inserted:
‘Ea. POLAND Benefits from Alimony Fund under the Act of Assistance to the Persons Entitled to Alimony;’
(e) after the entry under the heading ‘F. PORTUGAL’, the following entries are inserted:
‘Fa. SLOVENIA Maintenance replacement in accordance with the Act of Public Guarantee and Maintenance Fund of the Republic of Slovenia of 25 July 2006
Fb. SLOVAKIA Substitute alimony benefit (substitute maintenance payment) pursuant to the Act No 452/2004 Coll. on substitute alimony benefit as amended by later regulations.’
2. Annex I, Part II is amended as follows:
(a) after the entry under the heading ‘A. BELGIUM’, the following entries are inserted:
‘Aa. BULGARIA Maternity lump sum allowance under the Law on Family Allowances for Children
Ab. CZECH REPUBLIC Childbirth allowance C 294 E/232 EN Official Journal of the European Union 3.12.2009
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Ac. ESTONIA Childbirth allowance
Adoption allowance;’
(b) the entry ‘B. SPAIN’ is replaced by the following:
‘B. SPAIN Single payment birth and adoption grants;’
(c) under the heading ‘C. FRANCE’ the following words are added:
‘, except when they are paid to a person who remains subject to French legislation pursuant to Article 12 or Article 16;’
(d) after the entry under the heading ‘C. FRANCE’, the following entries are inserted:
‘Ca. LATVIA Childbirth grant
Adoption allowance
Cb. LITHUANIA Child lump sum grant’
(e) after the entry under the heading ‘D. LUXEMBOURG’, the following entries are inserted:
‘Da. HUNGARY Maternity grant
Db POLAND Single payment birth grant under the Act on Family Benefits
Dc. ROMANIA Childbirth allowance
Layettes for newborn children
Dd. SLOVENIA Childbirth grant
De. SLOVAKIA Childbirth allowance
Supplement to childbirth allowance.’ 3.12.2009 EN Official Journal of the European Union C 294 E/233
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3. Annex II is replaced by the following:
‘ANNEX II
PROVISIONS OF CONVENTIONS WHICH REMAIN IN FORCE AND WHICH, WHERE APPLICABLE, ARE RESTRICTED TO THE PERSONS COVERED THEREBY [Article 8(1)]
General comments The provisions of bilateral conventions that do not fall within the scope of this Regulation or that remain in force between Member States are not listed in this Annex. Such provisions include obligations between Member States arising from conventions providing, for example, for provisions regarding the aggregation of insurance periods fulfilled in a third country.
Provisions of social security conventions remaining applicable
(a) BELGIUM-GERMANY Articles 3 and 4 of the final protocol of 7 December 1957 to the general convention of the same date, as set out in the complementary protocol of 10 November 1960 (reckoning of insurance periods completed in some border regions before, during and after the Second World War).
(b) BELGIUM-LUXEMBOURG Convention on social security for frontier workers of 24 March 1994 (relating to the comple mentary flat-rate reimbursement).
(c) BULGARIA-GERMANY Article 28(1)(b) of the convention on social security of 17 December 1997 (maintenance of conventions concluded between Bulgaria and the former German Democratic Republic for persons who received a pension before 1996).
(d) BULGARIA-AUSTRIA Article 38(3) of the convention on social security of 14 April 2005 (reckoning of periods of insurance completed before 27 November 1961); the application of this point is restricted to the persons to whom that convention applies.
(e) BULGARIA-SLOVENIA Article 32(2) of the convention on social security of 18 December 1957 (reckoning of periods of insurance completed until 31 December 1957).
(f) CZECH REPUBLIC-GERMANY Article 39(1)(b) and (c) of the agreement on social security of 27 July 2001 (maintenance of the convention concluded between the former Czechoslovak Republic and the former German Democratic Republic for persons who received a pension before 1996; reckoning of periods of insurance completed in one of the contracting states for persons who received a pension for these periods on 1 September 2002 from the other contracting state, while residing in the territory of that other contracting state).
(g) CZECH REPUBLIC-CYPRUS Article 32(4) of the convention on social security of 19 January 1999 (determining competence for the calculation of periods of employment completed under the relevant convention of 1976); the application of this point is restricted to the persons to whom that convention applies. C 294 E/234 EN Official Journal of the European Union 3.12.2009
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(h) CZECH REPUBLIC-LUXEMBOURG Article 52(8) of the convention of 17 November 2000 (reckoning of pension insurance periods for political refugees).
(i) CZECH REPUBLIC-AUSTRIA Article 32(3) of the convention on social security of 20 July 1999 (reckoning of periods of insurance completed before 27 November 1961); the application of this point is restricted to the persons to whom that convention applies.
(j) CZECH REPUBLIC-SLOVAKIA Articles 12, 20 and 33 of the convention on social security of 29 October 1992 (Article 12 determines competence for a grant of survivor's benefits; Article 20 determines competence for calculation of insurance periods completed until the day of dissolution of the Czech and Slovak Federal Republic; Article 33 determines competence for payment of pensions awarded before to the day of the dissolution of the Czech and Slovak Federal Republic).
(k) DENMARK-FINLAND Article 7 of the Nordic convention on social security of 18 August 2003 (coverage of extra travel expenses in case of sickness during a stay in another Nordic country, which makes expensive return travel to the country of residence necessary).
(l) DENMARK-SWEDEN Article 7 of the Nordic convention on social security of 18 August 2003 (coverage of extra travel expenses in case of sickness during a stay in another Nordic country, which makes expensive return travel to the country of residence necessary).
(m) GERMANY-SPAIN Article 45(2) of the convention on social security of 4 December 1973 (representation by diplomatic and consular authorities).
(n) GERMANY-FRANCE (i) Complementary agreement No 4 of 10 July 1950 to the general convention of the same date, as set out in supplementary agreement No 2 of 18 June 1955 (reckoning of periods of insurance completed between 1 July 1940 and 30 June 1950); (ii) Title I of that supplementary agreement No 2 (reckoning of periods of insurance completed before 8 May 1945); (iii) points 6, 7 and 8 of the general protocol of 10 July 1950 to that general convention (administrative arrangements); (iv) Titles II, III and IV of the agreement of 20 December 1963 (social security in the Saar).
(o) GERMANY-LUXEMBOURG Articles 4 to 7 of the convention of 11 July 1959 (reckoning of insurance periods completed between September 1940 and June 1946).
(p) GERMANY-HUNGARY Article 40(1)(b) of the convention on social security of 2 May 1998 (maintenance of the convention concluded between the former German Democratic Republic and Hungary for persons who received a pension before 1996).
(q) GERMANY-NETHERLANDS Articles 2 and 3 of complementary agreement No 4 of 21 December 1956 to the Convention of 29 March 1951 (settlement of rights acquired under the German social insurance scheme by Dutch workers between 13 May 1940 and 1 September 1945). 3.12.2009 EN Official Journal of the European Union C 294 E/235
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(r) GERMANY-AUSTRIA (i) Article 1(5) and Article 8 of the convention on unemployment insurance of 19 July 1978 and Article 10 of the final protocol to that convention (grant of unemployment allowance to frontier workers by the previous state of employment) shall continue to apply to persons who have exercised an activity as a frontier worker on or before 1 January 2005 and who have become unemployed before 1 January 2011;
(ii) Article 14(2)(g), (h), (i) and (j) of the convention on social security of 4 October 1995 concerning the division of competencies between both countries with regard to past insurance cases and acquired insurance periods (determination of competencies between both countries with regard to former insurance cases and acquired insurance periods); the application of this point is restricted to the persons to whom that convention applies.
(s) GERMANY-POLAND (i) Convention of 9 October 1975 on old-age and work-injury provisions, under the conditions and the scope defined by Article 27(2), (3) and (4) of the Convention on Social Security of 8 December 1990 (maintenance of legal status, on the basis of the convention of 1975, of the persons who established their residence in the territory of Germany or Poland before 1 January 1991 and who continue to reside there);
(ii) Articles 27(5) and 28(2) of the convention on social security of 8 December 1990 (maintenance of entitlement to a pension paid on the basis of the convention of 1957 concluded between the former German Democratic Republic and Poland; reckoning of periods of insurance completed by Polish employees under the convention of 1988 concluded between the former German Democratic Republic and Poland).
(t) GERMANY-ROMANIA Article 28(1)(b) of the convention on social security of 8 April 2005 (maintenance of the convention concluded between the former German Democratic Republic and Romania for persons who received a pension before 1996).
(u) GERMANY-SLOVENIA Article 42 of the convention on social security of 24 September 1997 (settlement of rights acquired before 1 January 1956 under the social security scheme of the other contracting state); the application of this point is restricted to the persons to whom that convention applies.
(v) GERMANY-SLOVAKIA The second and third subparagraphs of Article 29(1) of the Agreement of 12 September 2002 (maintenance of the convention concluded between the former Czechoslovak Republic and the former German Democratic Republic for persons who received a pension before 1996; reckoning of periods of insurance completed in one of the contracting states for persons who received a pension for those periods on 1 December 2003 from the other contracting state, while residing in the territory that other contracting state).
(w) GERMANY-UNITED KINGDOM (i) Article 7(5) and (6) of the convention on social security of 20 April 1960 (legislation applicable to civilians serving in the military forces);
(ii) Article 5(5) and (6) of the convention on unemployment insurance of 20 April 1960 (legislation applicable to civilians serving in the military forces).
(x) IRELAND-UNITED KINGDOM Article 19(2) of the agreement on social security of 14 December 2004 (transfer and reckoning of certain disability credits). C 294 E/236 EN Official Journal of the European Union 3.12.2009
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(y) SPAIN-PORTUGAL Article 22 of the general convention of 11 June 1969 (export of unemployment benefits). This entry shall remain valid for two years from the date of application of Regulation (EC) No 883/2004.
(z) ITALY-SLOVENIA (i) Agreement on regulation of mutual obligations in social insurance with reference to paragraph 7 of Annex XIV to the Peace Treaty (concluded by exchange of notes on 5 February 1959) (reckoning of periods of insurance completed before 18 December 1954); the application of this point is restricted to the persons to whom that agreement applies,
(ii) Article 45(3) of the convention on social security of 7 July 1997 concerning ex-Zone B of the Free Territory of Trieste (reckoning of periods of insurance completed before 5 October 1956); the application of this point is restricted to the persons to whom that convention applies.
(aa) LUXEMBOURG-PORTUGAL Agreement of 10 March 1997 (on the recognition of decisions by institutions in one contracting party concerning the state of invalidity of applicants for pensions from insti tutions in the other contracting party).
(ab) LUXEMBOURG-SLOVAKIA Article 50(5) of the convention on social security of 23 May 2002 (reckoning of pension insurance periods for political refugees).
(ac) HUNGARY-AUSTRIA Article 36(3) of the convention on social security of 31 March 1999 (reckoning of periods of insurance completed before 27 November 1961); the application of this point is restricted to the persons to whom that convention applies.
(ad) HUNGARY-SLOVENIA Article 31 of the convention on social security of 7 October 1957 (reckoning of periods of insurance completed before 29 May 1956); the application of this point is restricted to the persons to whom that convention applies.
(ae) HUNGARY-SLOVAKIA Article 34(1) of the convention on social security of 30 January 1959 (Article 34(1) of the convention provides that the insurance periods awarded before the day of signing the convention are the insurance periods of the contracting State on which territory the entitled person had a residence); the application of this point is restricted to the persons to whom that convention applies.
(af) AUSTRIA-POLAND Article 33(3) of the convention on social security of 7 September 1998 (reckoning of periods of insurance completed before 27 November 1961); the application of this point is restricted to the persons to whom that convention applies.
(ag) AUSTRIA-ROMANIA Article 37(3) of the convention on social security of 28 October 2005 (reckoning of periods of insurance completed before 27 November 1961); the application of this point is restricted to the persons to whom that convention applies. 3.12.2009 EN Official Journal of the European Union C 294 E/237
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(ah) AUSTRIA-SLOVENIA Article 37 of the convention on social security of 10 March 1997 (reckoning of periods of insurance completed before 1 January 1956); the application of this point is restricted to the persons to whom that convention applies.
(ai) AUSTRIA-SLOVAKIA Article 34(3) of the convention on social security of 21 December 2001 (reckoning of periods of insurance completed before 27 November 1961); the application of this point is restricted to the persons to whom that convention applies.
(aj) PORTUGAL-UNITED KINGDOM Article 2(1) of the protocol on medical treatment of 15 November 1978.
(ak) FINLAND-SWEDEN Article 7 of the Nordic convention on social security of 18 August 2003, concerning coverage of extra travel expenses in case of sickness during a stay in another Nordic country, which makes more expensive return travel to the country of residence necessary.’
4. Annex III is amended as follows:
(a) after the entry ‘DENMARK’, the entry ‘ESTONIA’ is inserted;
(b) after the entry ‘IRELAND’, the following entries are inserted:
‘LITHUANIA
HUNGARY.’
5. Annex IV is amended as follows:
(a) after the entry ‘BELGIUM’, the following entries are inserted:
‘BULGARIA
CZECH REPUBLIC;’
(b) after the entry ‘FRANCE’, the entry ‘CYPRUS’ is inserted;
(c) after the entry ‘LUXEMBOURG’, the following entries are inserted:
‘HUNGARY
THE NETHERLANDS;’
(d) after the entry ‘AUSTRIA’, the following entries are inserted:
‘POLAND
SLOVENIA.’
6. Annex VI is amended as follows:
(a) the following entries are inserted:
‘-A. CZECH REPUBLIC Full disability pension for persons whose total disability arose before reaching eighteen years of age and who were not insured for the required period (Section 42 of the Pension Insurance Act No 155/1995 Coll.). C 294 E/238 EN Official Journal of the European Union 3.12.2009
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-Aa. ESTONIA (i) Invalidity pensions granted before 1 April 2000 under the State Allowances Act and which are retained under the State Pension Insurance Act.
(ii) National pensions granted on the basis of invalidity according to the State Pension Insurance Act.
(iii) Invalidity pensions granted according to the Defence Forces Service Act, Police Service Act, Prosecutor's Office Act, Status of Judges Act, Members of the Riigikogu Salaries, Pensions and Other Social Guarantees Act and President of the Republic Official Benefits Act.;’
(b) the sequence of the entries for A. GREECE and B. IRELAND are reversed as follows: ‘A. IRELAND’ and ‘B. GREECE’;
(c) the entry under the heading ‘A. IRELAND’ is replaced by the following:
‘Part II, Chapter 17 of the Social Welfare Consolidation Act 2005;’
(d) after the entry under the heading ‘B. GREECE’, the following entry is inserted:
‘Ba. LATVIA Invalidity pensions (third group) under Article 16(1)(2) of the Law on State Pensions of 1 January 1996.;’
(e) the entries under the heading ‘C. FINLAND’ are amended as follows:
‘National Pensions to persons who are born disabled or become disabled at an early age (the National Pension Act, 568/2007);
Invalidity pensions determined according to transitional rules and awarded prior to 1 January 1994 (Act on Enforcement of the National Pensions Act, 569/2007).’
7. Annex VII is amended as follows:
(a) in the tables headed ‘BELGIUM’ and ‘FRANCE’, the rows relating to Luxembourg are deleted,
(b) the table headed ‘LUXEMBOURG’ is deleted.
8. Annex VIII is replaced by the following:
‘ANNEX VIII
CASES IN WHICH THE PRO RATA CALCULATION IS WAIVED OR DOES NOT APPLY [Article 52(4) and (5)]
Part 1: Cases in which the pro rata calculation is waived pursuant to Article 52(4)
A. DENMARK All applications for pensions referred to in the law on social pensions with the exception of those referred to in Annex IX.
B. IRELAND All applications for state pension (transition), state pension (contributory), widow's (contributory) pension and widower's (contributory) pension. 3.12.2009 EN Official Journal of the European Union C 294 E/239
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C. CYPRUS All applications for old age, invalidity, widow's and widower's pensions.
D. LATVIA (a) All applications for invalidity pensions (Law on State Pensions of 1 January 1996);
(b) All applications for survivor's pensions (Law on State Pensions of 1 January 1996; Law on State-Funded Pensions of 1 July 2001).
E. LITHUANIA All applications for state social insurance survivor's pensions calculated on the basis of the basic amount of survivor's pension (Law on State Social Insurance Pensions).
F. NETHERLANDS All applications for old-age pensions under the law on general old-age insurance.
G. AUSTRIA (a) All applications for benefits under the federal law of 9 September 1955 on general social insurance, the federal law of 11 October 1978 on social insurance for self-employed persons engaged in trade and commerce, the federal law of 11 October 1978 on social insurance for self-employed farmers and the federal law of 30 November 1978 on social insurance for the self-employed in the liberal professions;
(b) All applications for invalidity pensions based on a pension account pursuant to the general pensions act of 18 November 2004;
(c) All applications for survivor's pensions based on a pension account pursuant to the general pensions act of 18 November 2004, if no increase in benefits is to be applied in respect of additional months of insurance pursuant to Article 7(2) of the general pensions act;
(d) All applications for invalidity and survivor's pensions of the Landesärztekammern (provincial chambers of physicians) based on basic provision (basic and any supplementary benefit, or basic pension);
(e) All applications for permanent occupational invalidity support and survivor's support from the pension fund of the Österreichische Tierärztekammer (Austrian chamber of veterinary surgeons);
(f) All applications for benefits from occupational invalidity, widows and orphans pensions according to the statutes of the welfare institutions of the Rechtsanwaltskammern (bar associations), Part A.
H. POLAND All applications for disability pensions, old-age pensions under the defined benefits scheme and survivor's pensions.
I. PORTUGAL All applications for invalidity, old-age and survivor's pension claims, except for where the totalised periods of insurance completed under the legislation of more than one Member State are equal to or longer than 21 calendar years, the national periods of insurance are equal or inferior to 20 years, and the calculation is made under Article 11 of Decree-Law No 35/2002, 19 February 2002. C 294 E/240 EN Official Journal of the European Union 3.12.2009
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J. SLOVAKIA (a) All applications for survivor's pension (widow's, widower's and orphan's pension) calculated pursuant to the legislation in force before 1 January 2004 the amount of which is derived from a pension formerly paid to the deceased,
(b) All applications for pensions calculated pursuant to Act No 461/2003 Coll. on social security as amended.
K. SWEDEN All applications for guarantee pension in the form of old-age pension (Act 1998:702) and old-age pension in the form of supplementary pension (Act 1998:674).
L. UNITED KINGDOM
All applications for retirement pension, widow's and bereavement benefits, with the exception of those for which:
(a) during a tax year beginning on or after 6 April 1975:
(i) the party concerned completed periods of insurance, employment or residence under the legislation of the United Kingdom and another Member State; and
(ii) one (or more) of the tax years referred to in point (i) was not considered a qualifying year within the meaning of the legislation of the United Kingdom;
(b) the periods of insurance completed under the legislation in force in the United Kingdom for the periods prior to 5 July 1948 would be taken into account for the purposes of Article 52(1)(b) of this Regulation by application of the periods of insurance, employment or residence under the legislation of another Member State.
All applications for additional pension pursuant to the Social Security Contributions and Benefits Act 1992, section 44, and the Social Security Contributions and Benefits (Northern Ireland) Act 1992, section 44.
Part 2: Cases in which Article 52(5) applies: A. FRANCE Basic or supplementary schemes in which old-age benefits are calculated on the basis of retirement points.
B. LATVIA Old-age pensions (Law on state pensions of 1 January 1996 and Law on state-funded pensions of 1 July 2001).
C. HUNGARY Pension benefits based on the membership of private pension funds.
D. AUSTRIA (a) Old-age pensions based on a pension account pursuant to the general pensions act of 18 November 2004;
(b) Compulsory allowances under Article 41 of the Federal Law of 28 December 2001, BGBl I No 154 on the Pharmazeutische Gehaltskasse für Österreich (general salary fund of Austrian pharmacists). 3.12.2009 EN Official Journal of the European Union C 294 E/241
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(c) Retirement and early retirement pensions of the Landesärztekammern (provincial chambers of physicians) based on basic provision (basic and any supplementary benefit, or basic pension), and all pension benefits of the same body based on additional provision (additional or indi vidual pension).
(d) Old-age support from the pension fund of the Österreichische Tierärztekammer (Austrian chamber of veterinary surgeons).
(e) Benefits according to the statutes of the welfare institutions of the Austrian bar associations, Parts A and B, with the exception of applications for benefits from disability, widows and orphans pensions according to the statutes of the welfare institutions of the same body, Part A.
(f) Benefits by the welfare institutions of the federal chamber of architects and consulting engineers under the Ziviltechnikerkammergesetz 1993 (law on the chamber of civil engineers) and the statutes of the welfare institutions, with the exception of benefits on grounds of occupational invalidity and survivor's benefits deriving from the last-named benefits.
(g) Benefits according to the statute of the welfare institution of the federal chamber of profes sional accountants and tax advisors under the Wirtschaftstreuhandberufsgesetz (law on profes sional accountants and tax advisors).
E. POLAND Old-age pensions under the defined contribution scheme.
F. SLOVENIA Pension from compulsory supplementary pension insurance.
G. SLOVAKIA Mandatory old-age pension saving.
H. SWEDEN Income-based pension and premium pension (Act 1998:674).
I. UNITED KINGDOM Graduated retirement benefits paid pursuant to the National Insurance Act 1965, sections 36 and 37, and the National Insurance Act (Northern Ireland) 1966, sections 35 and 36.
J. BULGARIA Old-age pensions from the Supplementary Compulsory Pension Insurance, under Part II, Title II, of the social insurance code.
K. ESTONIA Mandatory funded old-age pension scheme.’
9. Annex IX is amended as follows:
(a) Part I is amended as follows:
(i) after the entry under the heading ‘F. IRELAND’ the following entry is inserted:
‘Fa. LATVIA Invalidity pensions (third group) under Article 16(1)(2) of the law on state pensions of 1 January 1996;’ C 294 E/242 EN Official Journal of the European Union 3.12.2009
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(ii) under the heading ‘G. NETHERLANDS’, the following words are added:
‘The law of 10 November 2005 on work and income according to labour capacity;’
(iii) the entry under the heading ‘H. FINLAND’ is replaced by the following:
‘National pensions to persons who are born disabled or become disabled at an early age (the National Pensions Act, 568/2007)
National pensions and spouse's pensions determined according to the transitional rules and awarded prior to the 1 of January 1994 (Act on Enforcement of the National Pensions Act, 569/2007)
The additional amount of children's pension when calculating independent benefit in accordance with the national pension act, 568/2007);’
(iv) the entry under the heading ‘I. SWEDEN’ is replaced by the following:
‘Swedish income-related sickness compensation and activity compensation (Act 1962:381)
Swedish guarantee pension and guaranteed compensation which replaced the full Swedish state pensions provided under the legislation on the state pension which applied before 1 January 1993, and the full state pension awarded under the transitional rules of the legislation applying from that date.’
(b) Part II is amended as follows:
(i) after the entry under the heading ‘C. ITALY’, the following entries are inserted:
‘Ca. LATVIA Survivor's pension calculated on the basis of assumed insurance periods (Article 23(8) of the Law on State Pensions of 1 January 1996)
Cb. LITHUANIA (a) State social insurance work incapacity pensions, paid under the Law on State Social Insurance Pensions
(b) State social insurance survivor's and orphan's pensions, calculated on the basis of the work incapacity pension of the deceased under the Law on State Social Insurance Pensions;’
(ii) after the entry under the heading ‘D. LUXEMBOURG’, the following entry is inserted:
‘Da. SLOVAKIA (a) Slovak invalidity pension and survivor's pension derived therefrom
(b) Invalidity pension for a person who became invalid as a dependent child and who is always deemed to have fulfilled the required period of insurance (Articles 70(2) and 72(3), and Article 73(3) and (4) of Act No 461/2003 on social insurance, as amended)’
(c) In Part III, the entry ‘Nordic Convention of 15 June 1992 on social security’ is replaced by the following:
‘Nordic Convention on Social Security of 18 August 2003.’ 3.12.2009 EN Official Journal of the European Union C 294 E/243
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10. Annex X is replaced by the following:
‘ANNEX X
SPECIAL NON-CONTRIBUTORY CASH BENEFITS [Article 70(2)(c)] A. BELGIUM (a) Income replacement allowance (Law of 27 February 1987)
(b) Guaranteed income for elderly persons (Law of 22 March 2001)
B. BULGARIA Social pension for old age (Article 89 of the Social Security Code)
C. CZECH REPUBLIC Social allowance (State Social Support Act No 117/1995 Sb)
D. DENMARK Accommodation expenses for pensioners (Law on individual accommodation assistance, consolidated by Law No 204 of 29 March 1995)
E. GERMANY Basic subsistence income for the elderly and for persons with reduced earning capacity under Chapter 4 of Book XII of the Social Code
Benefits to cover subsistence costs under the basic provision for jobseekers unless, with respect to those benefits, the eligibility requirements for a temporary supplement following receipt of unem ployment benefit (Article 24(1) of Book II of the Social Code) are fulfilled
F. ESTONIA (a) Disabled adult allowance (Social Benefits for Disabled Persons Act of 27 January 1999)
(b) State unemployment allowance (Labour Market Services and Support Act of 29 September 2005)
G. IRELAND (a) Jobseeker's allowance (Social Welfare Consolidation Act 2005, Part 3, Chapter 2)
(b) State pension (non-contributory) (Social Welfare Consolidation Act 2005, Part 3, Chapter 4)
(c) Widow's (non-contributory) pension and widower's (non-contributory) pension (Social Welfare Consolidation Act 2005, Part 3, Chapter 6)
(d) Disability allowance (Social Welfare Consolidation Act 2005, Part 3, Chapter 10)
(e) Mobility allowance (Health Act 1970, Section 61)
(f) Blind pension (Social Welfare Consolidation Act 2005, Part 3, Chapter 5)
H. GREECE Special benefits for the elderly (Law No 1296/82) C 294 E/244 EN Official Journal of the European Union 3.12.2009
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I. SPAIN (a) Minimum income guarantee (Law No 13/82 of 7 April 1982)
(b) Cash benefits to assist the elderly and invalids unable to work (Royal Decree No 2620/81 of 24 July 1981)
(c) The following pension benefits:
(i) non-contributory invalidity and retirement pensions as provided for in Article 38(1) of the Consolidated Text of the General Law on Social Security, approved by Royal Legislative Decree No 1/1994 of 20 June 1994 and
(ii) the benefits which supplement the pensions referred to in point i, as provided for in the legislations of the autonomous regions, where such supplements guarantee a minimum subsistence income having regard to the economic and social situation in the autonomous regions concerned
(d) Allowances to promote mobility and to compensate for transport costs (Law No 13/1982 of 7 April 1982)
J. FRANCE (a) Supplementary allowances of:
(i) the special invalidity fund, and
(ii) the old-age solidarity fund
in respect of acquired rights (Law of 30 June 1956, codified in Book VIII of the Social Security Code)
(b) Disabled adult's allowance (Law of 30 June 1975, codified in Book VIII of the Social Security Code)
(c) Special allowance (Law of 10 July 1952, codified in Book VIII of the Social Security Code) in respect of acquired rights
(d) Old-age solidarity allowance (ordinance of 24 June 2004, codified in Book VIII of the Social Security Code) as of 1 January 2006
K. ITALY (a) Social pensions for persons without means (Law No 153 of 30 April 1969)
(b) Pensions and allowances for the civilian disabled or invalids (Law No 118 of 30 March 1974, No 18 of 11 February 1980 and No 508 of 23 November 1988)
(c) Pensions and allowances for the deaf and dumb (Law No 381 of 26 May 1970 and No 508 of 23 November 1988)
(d) Pensions and allowances for the civilian blind (Law No 382 of 27 May 1970 and No 508 of 23 November 1988)
(e) Benefits supplementing the minimum pensions (Law No 218 of 4 April 1952, No 638 of 11 November 1983 and No 407 of 29 December 1990)
(f) Benefits supplementing disability allowances (Law No 222 of 12 June 1984)
(g) Social allowance (Law No 335 of 8 August 1995)
(h) Social increase (Article 1(1) and (12) of Law No 544 of 29 December 1988 and successive amendments) 3.12.2009 EN Official Journal of the European Union C 294 E/245
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L. CYPRUS (a) Social Pension (Social Pension Law of 1995 (Law 25(I)/95), as amended)
(b) Severe motor disability allowance (Council of Ministers’ Decisions No 38210 of 16 October 1992, No 41370 of 1 August 1994, No 46183 of 11 June 1997 and No 53675 of 16 May 2001)
(c) Special grant to blind persons (Special Grants Law of 1996 (Law 77(I)/96), as amended)
M. LATVIA (a) State social security benefit (Law on State Social Benefits of 1 January 2003)
(b) Allowance for the compensation of transportation expenses for disabled persons with restricted mobility (Law on State Social Benefits of 1 January 2003)
N. LITHUANIA (a) Social assistance pension (Article 5 of the Law of 2005 on State Social Assistance Benefits)
(b) Relief compensation (Article 15 of the Law of 2005 on State Social Assistance Benefits)
(c) Transport compensation for the disabled who have mobility problems (Article 7 of the Law of 2000 on Transport Compensation)
O. LUXEMBOURG Income for the seriously disabled (Article 1(2) of the Law of 12 September 2003), with the exception of persons recognised as being disabled workers and employed on the mainstream labour market or in a sheltered environment
P. HUNGARY (a) Invalidity annuity (Decree No 83/1987 (XII 27) of the Council of Ministers on invalidity annuity)
(b) Non-contributory old age allowance (Act III of 1993 on Social Administration and Social Benefits)
(c) Transport allowance (Government Decree No 164/1995 (XII 27) on Transport Allowances for Persons with Severe Physical Handicap)
Q. MALTA (a) Supplementary allowance (Section 73 of the Social Security Act (Cap. 318) 1987)
(b) Old-age pension (Social Security Act (Cap. 318) 1987)
R. NETHERLANDS (a) Wet Arbeidsongeschiktheidsvoorziening jonggehandicapten (Wajong) (Disability Assistance Act for Young Persons with a Disability) of 24 April 1997
(b) Toeslagenwet (TW) (Supplementary Benefits Act) of 6 November 1986
S. AUSTRIA Compensatory supplement (Federal Act of 9 September 1955 on General Social Insurance, Federal Act of 11 October 1978 on Social Insurance for Persons Engaged in Trade and Commerce, and Federal Act of 11 October 1978 on Social Insurance for Farmers C 294 E/246 EN Official Journal of the European Union 3.12.2009
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T. POLAND Social pension (Act of 27 June 2003 on social pensions)
U. PORTUGAL (a) Non-contributory State old-age and invalidity pension (Decree-Law No 464/80 of 13 October 1980)
(b) Non-contributory widowhood pension (Regulatory Decree No 52/81 of 11 November 1981)
(c) Solidarity supplement for the elderly (Decree-Law No 232/2005 of 29 December 2005, amended by Decree-Law No 236/2006 of 11 December 2006
V. SLOVENIA (a) State pension (Pension and Disability Insurance Act of 23 December 1999)
(b) Income support for pensioners (Pension and Disability Insurance Act of 23 December 1999)
(c) Maintenance allowance (Pension and Disability Insurance Act of 23 December 1999)
W. SLOVAKIA (a) Adjustment awarded before 1 January 2004 to pensions constituting the sole source of income
(b) Social pension which has been awarded before 1 January 2004
X. FINLAND (a) Housing allowance for pensioners (Act concerning the Housing Allowance for pensioners, 571/2007)
(b) Labour market support (Act on Unemployment Benefits 1290/2002)
(c) Special assistance for immigrants (Act on Special Assistance for Immigrants, 1192/2002)
Y. SWEDEN (a) Housing supplements for persons receiving a pension (Law 2001: 761)
(b) Financial support for the elderly (Law 2001: 853)
Z. UNITED KINGDOM (a) State Pension credit (State Pension Credit Act 2002 and State Pension Credit Act (Northern Ireland) 2002)
(b) Income-based allowances for jobseekers (Jobseekers Act 1995 and Jobseekers (Northern Ireland) Order 1995)
(c) Income Support (Social Security Contributions and Benefits Act 1992 and Social Security Contributions and Benefits (Northern Ireland) Act 1992)
(d) Disability Living Allowance mobility component (Social Security Contributions and Benefits Act 1992 and Social Security Contributions and Benefits (Northern Ireland) Act 1992)’ 3.12.2009 EN Official Journal of the European Union C 294 E/247
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11. Annex XI is replaced by the following:
‘ANNEX XI
SPECIAL PROVISIONS FOR THE APPLICATION OF THE LEGISLATION OF THE MEMBER STATES [Articles 51(3) and 56(1) and Article 83]
A. BELGIUM None
B. BULGARIA Article 33(1) of the Bulgarian Health Insurance Act shall apply to all persons for whom Bulgaria is the competent Member State under Chapter 1 of Title III of this Regulation.
C. CZECH REPBULIC None
D. DENMARK ▐
1. (a) For the purpose of calculating the pension under the lov om social pension (Social Pension Act), periods of activity as an employed or self-employed person completed under Danish legislation by a frontier worker or a worker who has gone to Denmark to do work of a seasonal nature are regarded as periods of residence completed in Denmark by the surviving spouse insofar as, during those periods, the surviving spouse was linked to the abovementioned worker by marriage without separation from bed and board or de facto separation on grounds of incom patibility and provided that during those periods the spouse resided in the territory of another Member State.
For the purposes of this paragraph, ‘work of a seasonal nature’ means work which, being dependent on the succession of the seasons, automatically recurs each year.
(b) For the purpose of calculating the pension under the lov om social pension (Social Pension Act), periods of activity as an employed or self-employed person completed in Denmark before 1 January 1984 by a person to whom paragraph 2(a) does not apply shall be regarded as periods of residence completed under Danish legislation by the surviving spouse, insofar as, during those periods, the surviving spouse was linked to the person by marriage without separation from bed and board or de facto separation on grounds of incompatibility, and provided that, during those periods, the spouse resided in the territory of another Member State.
(c) Periods to be taken into account under points (a) and (b) shall not be taken into consideration if they coincide with the periods taken into account for the calculation of the pension due to the person concerned under the legislation on compulsory insurance of another Member State or with the periods during which the person concerned received a pension under such legislation. Those periods shall, however, be taken into consideration if the annual amount of the said pension is less than half the basic amount of the social pension.
2. (a) Notwithstanding the provisions of Article 6, persons who have not been gainfully employed in one or more Member States are entitled to a Danish social pension only if they have been, or have previously been, permanent residents of Denmark for at least three years, subject to the age limits prescribed by Danish legislation. Subject to Article 4, Article 7 does not apply to a Danish social pension to which entitlement has been acquired by such persons.
(b) The abovementioned provisions do not apply to Danish social pension entitlement for the family members of persons who are or have been gainfully employed in Denmark, or for students or the members of their families. C 294 E/248 EN Official Journal of the European Union 3.12.2009
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3. The temporary benefit for unemployed persons who have been admitted to the ledighedsydelse (║ flexible job║ scheme) (Law No 455 of 10 June 1997) is covered by Title III, Chapter 6 of this Regulation. As regards unemployed persons going to another Member State, Articles 64 and 65 will be applicable when this Member State has similar employment schemes for the same category of persons.
4. Where the beneficiary of a Danish social pension is also entitled to a survivor's pension from another Member State, these pensions for the implementation of Danish legislation shall be regarded as benefits of the same kind within the meaning of Article 53(1), subject to the condition, however, that the person whose periods of insurance or of residence serve as the basis for the calculation of the survivor's pension had also acquired a right to a Danish social pension.
E. GERMANY ▐
1. Notwithstanding Article 5(a) of this Regulation and Article 5(4), point 1║ of the Sozialge setzbuch VI (SGB VI) (║ Social Code, Volume VI), a person who receives a full old-age pension under the legislation of another Member State if that person requests compulsory affiliation may request to be compulsorily insured under the German pension insurance scheme.
2. Notwithstanding Article 5(a) of this Regulation and Article 7(1) and (3) of the SGB VI, a person who is compulsorily insured in another Member State or receives an old-age pension under the legislation of another Member State may join the voluntary insurance scheme in Germany.
3. For the purpose of granting cash benefits under paragraph 47(1) of SGB V, paragraph 47(1) of SGB VII and paragraph 200(2) of the Reichsversicherungsordnung to insured persons who live in another Member State, German insurance schemes calculate net pay, which is used to assess benefits, as if the insured person lived in Germany, unless the insured person requests an assessment on the basis of the net pay which he or she in fact receives.
4. Nationals of other Member States whose place of residence or usual abode is outside Germany and who fulfil the general conditions of the German pension insurance scheme may pay voluntary contributions only if they have been voluntarily or compulsorily insured in the German pension insurance scheme at some time previously; this also applies to stateless persons and refugees whose place of residence or usual abode is in another Member State.
5. The pauschale Anrechnungszeit (fixed credit period) pursuant to Article 253 of the SGB VI ║ shall be determined exclusively with reference to German periods.
6. In cases to which the German pension legislation in force on 31 December 1991 is applicable for the recalculation of a pension, only the German legislation ║ applies for the purposes of crediting German Ersatzzeiten (substitute ║ periods).
7. The German legislation on accidents at work and occupational diseases to be compensated for under the law governing foreign pensions and for benefits for insurance periods which can be credited under the law governing foreign pensions in the territories named in paragraph 1(2)(3) of the Bundesvertriebenengesetz (Law on displaced persons and refugees) continues to apply within the scope of application of this Regulation notwithstanding the provisions of paragraph 2 of the Fremdrentengesetz (Law on foreign pensions).
8. For the calculation of the theoretical amount referred to in Article 52(1)(b)(i) of this Regu lation, in pension schemes for liberal professions, the competent institution shall take as a basis, in respect of each of the years of insurance completed under the legislation of any other Member State, the average annual pension entitlement acquired during the period of membership of the competent institution through the payment of contributions. 3.12.2009 EN Official Journal of the European Union C 294 E/249
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F. ESTONIA For the purpose of calculating parental benefit, periods of employment in Member States other than Estonia shall be considered to be based on the same average amount of Social Tax as paid during the periods of employment in Estonia with which they are aggregated. If during the reference year the person has been employed only in other Member States, the calculation of the benefit shall be considered to be based on the average Social Tax paid in Estonia between the reference year and the maternity leave.
G. GREECE 1. Law No 1469/84 concerning voluntary affiliation to the pension insurance scheme for Greek nationals and foreign nationals of Greek origin is applicable to nationals of other Member States, stateless persons and refugees, where the persons concerned, regardless of their place of residence or stay, have at some time in the past been compulsorily or voluntarily affiliated to the Greek pension insurance scheme.
2. Notwithstanding Article 5(a) of this Regulation and Article 34 of Law No 1140/81, a person who receives a pension in respect of accidents at work or occupational diseases under the legislation of another Member State may request to be compulsorily insured under the legislation applied by the agricultural insurance scheme, to the that extent he or she pursues an activity falling within the scope of that legislation.
H. SPAIN ▐
1. For the purposes of implementing Article 52(1)(b)(i) of this Regulation, the years which the worker lacks to reach the pensionable or compulsory retirement age as stipulated under Article 31(4) of the consolidated version of the Ley de clases pasivas del Estado (Law on State Pensioners) shall be taken into account as actual years of service to the State only if at the time of the event in respect of which invalidity or death pensions are due, the beneficiary was covered by Spain's special scheme for civil servants or was performing an activity assimilated under the scheme, or if, at the time of the event in respect of which the pensions are due, the beneficiary was performing an activity that would have required the person concerned to be included under the State's special scheme for civil servants, the armed forces or the judiciary, had the activity been performed in Spain.
2. (a) Under Article 56(1)(c), the calculation of the theoretical Spanish benefit shall be carried out on the basis of the actual contributions of the person during the years immediately preceding payment of the last contribution to Spanish social security. Where, in the calculation of the basic amount for the pension, periods of insurance and/or residence under the legislation of other Member States have to be taken into account, the contribution basis in Spain which is closest in time to the reference periods shall be used for the aforementioned periods, taking into account the development of the retail price index.
║ (b) The amount of the pension obtained shall be increased by the amount of the increases and revaluations calculated for each subsequent year for pensions of the same nature.
3. Periods completed in other Member States which must be calculated in the special scheme for civil servants, the armed forces and the judicial administration, will be treated in the same way, for the purposes of Article 56 of this Regulation, as the periods closest in time covered as a civil servant in Spain. C 294 E/250 EN Official Journal of the European Union 3.12.2009
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4. The additional amounts based on age referred to in the Second Transitional Provision of the General Law on Social Security shall be applicable to all beneficiaries of this Regulation who have contributions to their name under the Spanish legislation prior to 1 January 1967; it shall not be possible, by application of Article 5 of this Regulation, to treat periods of insurance credited in another Member State prior to the aforementioned date as being the same as contributions paid in Spain, solely for the present purposes. The date corresponding to 1 January 1967 shall be 1 August 1970 for the Special Scheme for Seafarers and 1 April 1969 for the Special Social Security Scheme for Coal Mining.
I. FRANCE 1. Nationals of other Member States whose place of residence or usual abode is outside France and who fulfil the general conditions of the French pension insurance scheme may pay voluntary contributions to it only if they had been voluntarily or compulsorily insured in the French pension insurance scheme at some time previously; this also applies to stateless persons and refugees whose place of residence or usual abode is in another Member State.
2. For persons receiving benefits in kind in France pursuant to Articles 17, 24 or 26 of this Regulation who are resident in the French departments of Haut-Rhin, Bas-Rhin or Moselle, benefits in kind provided on behalf of the institution of another Member State which is responsible for bearing their cost include benefits provided by both the general sickness insurance scheme and the obligatory supplementary local sickness insurance scheme of Alsace-Moselle.
3. French legislation applicable to a person engaged, or formerly engaged, in an activity as an employed or self-employed person for the application of Chapter 5 of Title III of this Regulation includes both the basic old-age insurance scheme(s) and the supplementary retirement scheme(s) to which the person concerned was subject.
J. IRELAND 1. Notwithstanding Article 21(2) and Article 62 of this Regulation, for the purposes of calcu lating the prescribed reckonable weekly earnings of an insured person for the grant of sickness ║ or unemployment benefit under Irish legislation, an amount equal to the average weekly wage ║ of employed persons in the relevant prescribed year shall ▐ be credited to that insured person in respect of each week of activity as an employed person under the legislation of another Member State during the said prescribed year.
2. Where Article 46 of this Regulation applies, if the person concerned suffers incapacity for work leading to invalidity while subject to the legislation of another Member State, Ireland shall, for the purposes of Section 118(1)(a) of the Social Welfare Consolidation Act 2005, take account of any periods during which, in respect of the invalidity that followed that incapacity for work, he or she would have been regarded as being incapable of work under Irish legislation.
K. ITALY None ║
L. CYPRUS For the purposes of applying the provisions of Articles 6, 51 and 61, for any period commencing on or after 6 October 1980, a week of insurance under the legislation of the Republic of Cyprus is determined by dividing the total insurable earnings for the relevant period by the weekly amount of the basic insurable earnings applicable in the relevant contribution year, provided that the number of weeks so determined shall not exceed the number of calendar weeks in the relevant period. 3.12.2009 EN Official Journal of the European Union C 294 E/251
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M. LATVIA None ║
N. LITHUANIA None ║
O. LUXEMBOURG None ║
P. HUNGARY None ║
Q. MALTA Special provisions for civil servants:
(a) For the purposes of the application of Articles 49 and 60 of this Regulation only, persons employed under the Armed Forces Act (Chapter 220 of the Laws of Malta), the Police Act (Chapter 164 of the Laws of Malta) and the Prisons Act (Chapter 260 of the Laws of Malta) shall be treated as civil servants.
(b) Pensions payable under the above Acts and under the Pensions Ordinance (Chapter 93 of the Laws of Malta) shall, for the purposes of Article 1(e) of this Regulation alone, be deemed to be ‘special schemes for civil servants’
R. NETHERLANDS 1. Health care insurance (a) As regards entitlement to benefits in kind under Dutch legislation, persons entitled to benefits in kind for the purpose of the implementation of Chapters 1 and 2 of Title III of this Regulation shall comprise:
(i) persons who, under Article 2 of the Zorgverzekeringswet (Health Care Insurance Act), are obliged to take out insurance under a health care insurer; and
(ii) insofar as they are not already included under point (i), members of the family of active military personnel who are living in another Member State and persons who are resident in another Member State and who, under this Regulation are entitled to health care in their state of residence, the costs being borne by the Netherlands.
(b) The persons referred to in paragraph 1(a)(i) shall, in accordance with the provisions of the Zorgverzekeringswet (Health Care Insurance Act) take out insurance with a health care insurer, and the persons referred to in paragraph 1(a)(ii) shall register with the College voor zorgverze keringen (Health Care Insurance Board).
(c) The provisions of the Zorgverzekeringswet (Health Care Insurance Act) and the Algemene Wet Bijzondere Ziektekosten (▐General Act on Exceptional Medical Expenses) concerning liability for the payment of contributions shall apply to the persons referred to under paragraph 1(a) and the members of their families. In respect of family members, the contributions shall be levied on the person from whom the right to health care is derived with exception of the members of the family of military personnel who are living in another Member State who shall be levied directly.
(d) The provisions of the Zorgverzekeringswet (Health Care Insurance Act) concerning late insurance shall apply mutatis mutandis in the event of late registration with the College voor zorgverze keringen (Health Care Insurance Board) in respect of the persons referred to in paragraph 1(a)(ii). C 294 E/252 EN Official Journal of the European Union 3.12.2009
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(e) Persons entitled to benefits in kind by virtue of the legislation of a Member State other than the Netherlands who reside in the Netherlands or stay temporarily in the Netherlands shall be entitled to benefits in kind in accordance with the policy offered to insured persons in the Netherlands by the institution of the place of residence or the place of stay, taking into account Article 11(1), (2) and (3) and Article 19(1) of the Zorgverzekeringswet (Health Care Insurance Act), as well as to benefits in kind provided for by the Algemene wet bijzondere ziektekosten (General Act on Exceptional Medical Expenses).
(f) For the purposes of Articles 23 to 30, the following benefits (in addition to pensions covered by Title III, Chapters 4 and 5) shall be treated as pensions due under Dutch legislation:
— pensions awarded under the Algemene burgerlijke pensioenwet of 6 January 1966 (Law on pensions for civil servants and their survivors ║);
— pensions awarded under the Algemene militaire pensioenwet of 6 October 1966 (Law on pensions for military personnel and their survivors ║);
— benefits for incapacity for work awarded under the Wet arbeidsongeschiktheidsvoorziening militairen of 7 June 1972 (Law on benefits for incapacity for work for military personnel ║);
— pensions awarded under the Law of 15 February 1967 on pensions for employees of the NV Nederlandse Spoorwegen (Dutch Railway Company) and their survivors (Spoorwegpensioenwet) (Railway Pensions Act);
— pensions awarded under the Reglement Dienstvoorwaarden Nederlandse Spoorwegen (Regu lation governing conditions of employment of the Dutch Railway Company);
— benefits awarded to retired persons before reaching the pensionable age of 65 years under a pension designed to provide income for former employed persons in their old age, or benefits provided in the event of premature exit from the labour market under a scheme set up by the state or by an industrial agreement for persons aged 55 or over▐.
— benefits awarded to military personnel and civil servants under a scheme applicable in the event of redundancy, superannuation and early retirement.
(g) For the purposes of Chapters 1 and 2 of Title III of this Regulation, the no-claims refund provided for in the Dutch scheme in the event of limited use of health-care facilities shall be deemed to be a sickness benefit in cash.
▐
2. Application of the Algemene Ouderdomswet (AOW) (Law on general old-age insurance) (a) The reduction referred to in Article 13(1) of the ║ AOW ║ shall not be applied for calendar years before 1 January 1957 during which a recipient not satisfying the conditions for having such years treated as periods of insurance:
— resided in the Netherlands between the ages of 15 and 65, or
— while residing in another Member State, worked in the Netherlands for an employer established in the Netherlands, or
— worked in another Member State during periods regarded as periods of insurance under the Dutch social security system.
By way of derogation from Article 7 of the AOW, anyone who resided or worked in the Netherlands in accordance with the above conditions only prior to 1 January 1957 shall also be regarded as being entitled to a pension. 3.12.2009 EN Official Journal of the European Union C 294 E/253
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(b) The reduction referred to in Article 13(1) of the AOW shall not apply to calendar years prior to 2 August 1989 during which, between the ages of 15 and 65, a person who is or was married was not insured under the above legislation, whilst being resident in the territory of a Member State other than the Netherlands, if these calendar years coincide with periods of insurance completed by the person's spouse under that legislation or with calendar years to be taken into account under point 2(a), provided that the couple's marriage subsisted during that time.
By way of derogation from Article 7 of the AOW, such person shall be regarded as entitled to a pension.
(c) The reduction referred to in Article 13(2) of the AOW shall not apply to calendar years before 1 January 1957 during which a pensioner's spouse who fails to satisfy the conditions for having such years treated as periods of insurance:
— resided in the Netherlands between the ages of 15 and 65, or
— while residing in another Member State, worked in the Netherlands for an employer established in the Netherlands, or
— worked in another Member State during periods regarded as periods of insurance under the Dutch social security system.
(d) The reduction referred to in Article 13(2) of the AOW shall not apply to calendar years prior to 2 August 1989 during which, between the ages of 15 and 65, a pensioner's spouse resident in a Member State other than the Netherlands was not insured under the above legislation, if those calendar years coincide with periods of insurance completed by the pensioner under that legislation or with calendar years to be taken into account under point 2(a), provided that the couple's marriage subsisted during that time.
(e) Point 2(a), ║(b), ║(c) and ║(d) shall not apply to periods which coincide with:
— periods which may be taken into account for calculating pension rights under the old-age insurance legislation of a Member State other than the Netherlands, or
— periods for which the person concerned has drawn an old-age pension under such legislation.
Periods of voluntary insurance under the system of another Member State shall not be taken into account for the purposes of this provision.
(f) Point 2(a), ║ (b), ║ (c) and ║ (d) shall apply only if the person concerned has resided in one or more Member States for six years after the age of 59 and only for such time as that person is resident in one of those Member States.
(g) By way of derogation from Chapter IV of the AOW, anyone resident in a Member State other than the Netherlands whose spouse is covered by compulsory insurance under that legislation shall be authorised to take out voluntary insurance under that legislation for periods during which the spouse is compulsorily insured.
This authorisation shall not cease where the spouse's compulsory insurance is terminated as a result of his or her death and where the survivor receives only a pension under the Algemene nabestaandenwet (║ general law for surviving dependants).
In any event, the authorisation in respect of voluntary insurance ceases on the date on which the person reaches the age of 65.
The contribution to be paid for voluntary insurance shall be set in accordance with the provisions relating to the determination of the contribution for voluntary insurance under the AOW. However, if the voluntary insurance follows on from a period of insurance as referred to in point 2(b), the contribution shall be set in accordance with the provisions relating to the deter mination of the contribution for compulsory insurance under the AOW, with the income to be taken into account being deemed to have been received in the Netherlands. C 294 E/254 EN Official Journal of the European Union 3.12.2009
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(h) The authorisation referred to in point 2(g) shall not be granted to anyone insured under another Member State's legislation on pensions or survivor's benefits.
(i) Anyone wishing to take out voluntary insurance under point 2(g) shall be required to apply for it to the ║ Sociale Verzekeringsbank (social insurance bank) no later than one year after the date on which the conditions for participation are fulfilled.
(j) For the purposes of Article 52(1)(b), only periods of insurance completed under the AOW after the age of 15 shall be taken into account as periods of insurance.
3. Application of the Algemene nabestaandenwet (ANW) (║ general law on surviving relatives) ▐
(a) Where the surviving spouse is entitled to a survivor's pension under the ║ ANW ║ pursuant to Article 51(3), that pension shall be calculated in accordance with Article 52(1)(b) of this Regu lation.
For the application of these provisions, periods of insurance prior to 1 October 1959 shall also be regarded as periods of insurance completed under Dutch legislation if during those periods the insured person, after the age of 15:
— resided in the Netherlands, or
— while resident in another Member State, worked in the Netherlands for an employer established in the Netherlands, or
— worked in another Member State during periods regarded as periods of insurance under the Dutch social security system.
(b) Account shall not be taken of the periods to be taken into consideration under paragraph 3(b) which coincide with periods of compulsory insurance completed under the legislation of another Member State in respect of survivor's pensions.
(c) For the purposes of Article 52(1)(b), only periods of insurance completed under Dutch legislation after the age of 15 shall be taken into account as periods of insurance.
(d) By way of derogation from Article 63a(1) of the ANW, a person resident in a Member State other than the Netherlands whose spouse is compulsorily insured under the ANW shall be authorised to take out voluntary insurance under that legislation, provided that such insurance has already begun by … ║, but only for periods during which the spouse is compulsorily insured. This authorisation shall cease as from the date of termination of the spouse's compulsory insurance under the ANW, unless the spouse's compulsory insurance is terminated as a result of his or her death and where the survivor only receives a pension under the ANW.
In any event, the authorisation in respect of voluntary insurance ceases on the date on which the person reaches the age of 65.
The contribution to be paid for voluntary insurance shall be set in accordance with the provisions relating to the determination of contributions for voluntary insurance under the ANW. However, if the voluntary insurance follows on from a period of insurance as referred to in paragraph 2(b), the contribution shall be set in accordance with the provisions relating to the determination of contributions for compulsory insurance under the ANW, with the income to be taken into account being deemed to have been received in the Netherlands.
4. Application of Dutch legislation relating to incapacity for work ▐
(a) Where, pursuant to Article 51(3) of this Regulation, the person concerned is entitled to a Dutch invalidity benefit, the amount referred to in Article 52(1)(b) for calculating that benefit shall be determined: 3.12.2009 EN Official Journal of the European Union C 294 E/255
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(i) where, prior to the occurrence of incapacity for work, the person last exercised an activity as an employed person within the meaning of Article 1(a), in accordance with
— the provisions laid down in the Wet op arbeidsongeschiktheidsverzekering (WAO) (Law on incapacity for work) if the incapacity for work occurred before 1 January 2004 or
— the provisions laid down in the Wet Werk en inkomen naar arbeidsvermogen (WIA) (Law on work and income according to labour capacity) if the incapacity for work occurred on or after 1 January 2004.
(ii) where, prior to the occurrence of the incapacity for work, the person concerned last exercised an activity as a self-employed person within the meaning of Article 1(b), in accordance with the provisions laid down in the Wet arbeidsongeschiktheidsverzekering zelfstandigen (WAZ) (Law on Incapacity for Work relating to self-employed persons) if the incapacity for work occurred before 1 August 2004.
(b) In calculating benefits under either the WAO, WIA or the WAZ, the Dutch institutions shall take account of:
— periods of paid employment and periods treated as such, completed in the Netherlands before 1 July 1967;
— periods of insurance completed under the WAO;
— periods of insurance completed by the person concerned, after the age of 15, under the Algemene Arbeidsongeschiktheidswet (AAW) (General law on incapacity for work), insofar as these do not coincide with the periods of insurance completed under the WAO;
— periods of insurance completed under the WAZ.
— periods of insurance completed under the WIA.
▐
S. AUSTRIA 1. For the purpose of acquiring periods in the pension insurance, attendance at a school or comparable educational establishment in another Member State shall be regarded as equivalent to attendance at a school or educational establishment pursuant to Articles 227(1)(1) and 228(1)(3) of the Allgemeines Sozialversicherungsgesetz (ASVG) (law on general social security ║), Article 116(7) of the Gewerbliches Sozialversicherungsgesetz (GSVG) (Federal law on social insurance for persons engaged in trade and commerce) and Article 107(7) of the Bauern-Sozialversicherungsgesetz (BSVG) (law on social security ║ for farmers), when the person concerned was subject at some time to Austrian legislation on the grounds that he pursued an activity as an employed or self-employed person, and the special contributions provided for under Article 227(3) of the ASVG, Article 116(9) of the GSVG and Article 107(9) of the BSGV for the purchase of such periods of education, are paid.
▐
2. For the calculation of the pro rata benefit referred to in Article 52(1)(b), special increments for contributions for supplementary insurance and the miner's supplementary benefit under Austrian legislation shall be disregarded. In such cases the pro rata benefit calculated without those contributions shall, if appropriate, be increased by unreduced special increments for contributions for supplementary insurance and the miner's supplementary benefit.
3. Where, pursuant to Article 6, substitute periods under an Austrian pension insurance scheme have been completed, but these cannot form a basis for calculation pursuant to Articles 238 and 239 of the ║ ASVG ║, Articles 122 and 123 of the ║ GSVG ║ or Articles 113 and 114 of the ║ BSVG ║, the calculation basis for periods of childcare pursuant to Article 239 of the ASVG, Article 123 of the GSVG and Article 114 of the BSVG shall be used.
▐ C 294 E/256 EN Official Journal of the European Union 3.12.2009
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T. POLAND. None ║
U. PORTUGAL None ║
V. ROMANIA None
W. SLOVENIA None ║
X. SLOVAKIA None ║
Y. FINLAND ▐
1. For the purposes of determining entitlement and of calculating the amount of the Finnish national pension under Articles 52 to 54, pensions acquired under the legislation of another Member State are treated in the same way as pensions acquired under Finnish legislation.
2. When applying Article 52(1)(b)(i) for the purpose of calculating of earnings for the credited period under Finnish legislation on earnings-related pensions, where an individual has pension insurance periods based on activity as an employed or self-employed person in another Member State for part of the reference period under Finnish legislation, the earnings for the credited period shall be equivalent to the sum of earnings obtained during the part of the reference period in Finland divided by the number of months for which there were insurance periods in Finland during the reference period.
Z. SWEDEN 1. When parental leave allowance is paid under the provisions in Article 67 to a family member who is not employed, the parental leave allowance is paid at a level corresponding to the basic or lowest level.
2. For the purpose of calculating parental leave allowance in accordance with Chapter 4, paragraph 6 of the Lag (1962:381) om allmän försäkring (Law on national insurance) for persons eligible for a work-based parental leave allowance, the following shall apply:
For a parent for whom sickness benefit generating income is calculated on the basis of income from gainful employment in Sweden, the requirement to have been insured for sickness benefit above the minimum level for at least 240 consecutive days preceding the child's birth shall be satisfied if, during the period mentioned, the parent had income from gainful employment in another Member State corresponding to insurance above the minimum level.
3. The provisions of this Regulation on the aggregation of insurance periods or periods of residence shall not apply to the transitional provisions in the Swedish legislation on entitlement to guarantee pension for persons born in or before 1937 who have been resident in Sweden for a specified period before applying for a pension (Act 2000:798).
4. For the purpose of calculating notional income for the income-related sickness compensation and income-related activity compensation in accordance with Chapter 8 of the Lag (1962:381) om allmän försäkrings (Law on national insurance ║), the following shall apply: 3.12.2009 EN Official Journal of the European Union C 294 E/257
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(a) where the insured person, during the reference period, has also been subject to the legislation of one or more other Member States on account of activity as an employed or self-employed person, income in the Member State(s) concerned shall be deemed to be equivalent to the insured person's average gross income in Sweden during the part of the reference period in Sweden, calculated by dividing the earnings in Sweden by the number of years over which those earnings accrued;
(b) where the benefits are calculated pursuant to Article 46 and persons are not insured in Sweden, the reference period shall be determined in accordance with Chapter 8, paragraphs 2 and 8 of the abovementioned Law as if the person concerned were insured in Sweden. If the person concerned has no pension-generating income during this period under the Law on income-based old-age pension (1998:674), the reference period shall be permitted to run from the earlier point in time when the insured person had income from gainful activity in Sweden.
5. (a) For the purpose of calculating notional pension asset for income-based survivor's pension (Act 2000:461), if the requirement in Swedish legislation for pension entitlement in respect of at least three out of the five calendar years immediately preceding the insured person's death (reference period) is not met, account shall also be taken of insurance periods completed in other Member States as if they had been completed in Sweden. Insurance periods in other Member States shall be regarded as based on the average Swedish pension base. If the person concerned has only one year in Sweden with a pension base, each insurance period in another Member State shall be regarded as constituting the same amount.
(b) For the purpose of calculating notional pension credits for widow's pensions relating to deaths on or after 1 January 2003, if the requirement in Swedish legislation for pension credits in respect of at least two out of the four years immediately preceding the insured person's death (reference period) is not met and insurance periods were completed in another Member State during the reference period, those years shall be regarded as being based on the same pension credits as the Swedish year.
ZA. UNITED KINGDOM 1. Where, in accordance with United Kingdom legislation, a person may be entitled to a retirement pension if:
(a) the contributions of a former spouse are taken into account as if they were that person's own contributions; or
(b) the relevant contribution conditions are satisfied by that person's spouse or former spouse,
then provided, in each case, that the spouse or former spouse is or had been exercising an activity as an employed or self-employed person, and had been subject to the legislation of two or more Member States, the provisions of Chapter 5 of Title III of this Regulation shall apply in order to determine entitlement under United Kingdom legislation. In this case, references in the said Chapter 5 to ‘periods of insurance’ shall be construed as references to periods of insurance completed by:
(i) a spouse or former spouse where a claim is made by:
— a married woman; or
— a person whose marriage has terminated otherwise than by the death of the spouse, or
(ii) a former spouse, where a claim is made by:
— a widower who immediately before pensionable age is not entitled to widowed parent's allowance; or
— a widow who immediately before pensionable age is not entitled to widowed mother's allowance, widowed parent's allowance or widow's pension, or who is only entitled to an age-related widow's pension calculated pursuant to Article 52(1)(b), and for this purpose ‘age-related widow's pension’ means a widow's pension payable at a reduced rate in accordance with section 39(4) of the Social Security Contributions and Benefits Act 1992. C 294 E/258 EN Official Journal of the European Union 3.12.2009
Wednesday 9 July 2008
2. For the purposes of applying Article 6 of this Regulation to the provisions governing entitlement to attendance allowance, carer's allowance and disability living allowance, a period of employment, self-employment or residence completed in the territory of a Member State other than the United Kingdom shall be taken into account insofar as is necessary to satisfy conditions as to required periods of presence in the United Kingdom, prior to the day on which entitlement to the benefit in question first arises.
3. For the purposes of Article 7 of this Regulation, in the case of invalidity, old-age or survivors’ cash benefits, pensions for accidents at work or occupational diseases and death grants, any bene ficiary under United Kingdom legislation who is staying in the territory of another Member State shall, during that stay, be considered as if he or she resided in the territory of that other Member State.
4. Where Article 46 applies, if the person concerned suffers incapacity for work leading to invalidity while subject to the legislation of another Member State, the United Kingdom shall, for the purposes of Section 30A(5) of the Social Security Contributions and Benefits Act 1992, take account of any periods during which the person concerned has received, in respect of that incapacity for work:
(a) cash sickness benefits or wages or salary in lieu thereof,
(b) benefits within the meaning of Chapters 4 and 5 of Title III granted in respect of the invalidity which followed that incapacity for work,
under the legislation of the other Member State, as though they were periods of short-term incapacity benefit paid in accordance with Sections 30A(1) to (4) of the Social Security Contributions and Benefits Act 1992.
5. In applying Article 46, account shall only be taken of periods during which the person was incapable of work within the meaning of United Kingdom legislation.
6. (a) For the purpose of calculating an earnings factor in order to determine entitlement to benefits under United Kingdom legislation, for each week of activity as an employed person under the legislation of another Member State, and which commenced during the relevant income tax year within the meaning of United Kingdom legislation, the person concerned shall be deemed to have paid contributions as an employed earner, or have earnings on which contributions have been paid, on the basis of earnings equivalent to two-thirds of that year's upper earnings limit.
(b) For the purposes of Article 52(1)(b)(ii), where:
(i) in any income tax year starting on or after 6 April 1975, a person carrying out activity as an employed person has completed periods of insurance, employment or residence exclusively in a Member State other than the United Kingdom, and the application of point 6(a) ║ results in that year being counted as a qualifying year within the meaning of United Kingdom legislation for the purposes of Article 52(1)(b)(i), he or she shall be deemed to have been insured for 52 weeks in that year in that other Member State;
(ii) any income tax year starting on or after 6 April 1975 does not count as a qualifying year within the meaning of United Kingdom legislation for the purposes of Article 52(1)(b)(i), any periods of insurance, employment or residence completed in that year shall be disre garded.
(c) For the purpose of converting an earnings factor into periods of insurance, the earnings factor achieved in the relevant income tax year within the meaning of United Kingdom legislation shall be divided by that year's lower earnings limit. The result shall be expressed as a whole number, any remaining fraction being ignored. The figure so calculated shall be treated as representing the number of weeks of insurance completed under United Kingdom legislation during that year provided that such figure shall not exceed the number of weeks during which in that year the person was subject to that legislation.’ 3.12.2009 EN Official Journal of the European Union C 294 E/259
Wednesday 9 July 2008 Extending Regulation (EC) No 883/2004 to third country nationals otherwise excluded * P6_TA(2008)0350 European Parliament legislative resolution of 9 July 2008 on the proposal for a Council regulation extending the provisions of Regulation (EC) No 883/2004 and Regulation (EC) No […] to nationals of third countries who are not already covered by these provisions solely on the ground of their nationality (COM(2007)0439 — C6-0289/2007 — 2007/0152(CNS)) (2009/C 294 E/51) (Consultation procedure)
The European Parliament,
— having regard to the Commission proposal (COM(2007)0439),
— having regard to Article 63(4) of the EC Treaty,
— having regard to Article 67 of the EC Treaty, pursuant to which the Council consulted Parliament (C6- 0289/2007),
— having regard to Rule 51 of its Rules of Procedure,
— having regard to the report of the Committee on Employment and Social Affairs (A6-0209/2008),
1. Approves the Commission proposal as amended;
2. Calls on the Commission to alter its proposal accordingly, pursuant to Article 250(2) of the EC Treaty;
3. Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;
4. Calls on the Council to consult Parliament again if it intends to amend the Commission proposal substantially;
5. Instructs its President to forward its position to the Council and the Commission.
TEXT PROPOSED BY THE COMMISSION AMENDMENTS
Amendment 1 Proposal for a Regulation Recital 3a (new)
(3a) This Regulation respects the fundamental rights and observes the principles recognised, in particular, by the Charter of Fundamental Rights of the European Union, notably Article 34(2) thereof.
Amendment 2 Proposal for a Regulation Recital 6a (new)
(6a) Promoting a high level of social protection and raising the standard of living and the quality of life in the Member States are objectives of the European Union. C 294 E/260 EN Official Journal of the European Union 3.12.2009
Thursday 10 July 2008
Common consular instructions: biometric identifiers and visa applications ***I P6_TA(2008)0358 European Parliament legislative resolution of 10 July 2008 on the proposal for a regulation of theEuropean Parliament and of the Council amending the Common Consular Instructions on visas for diplomatic missions and consular posts in relation to the introduction of biometrics including provisions on the organisation of the reception and processing of visa applications (COM(2006)0269 — C6-0166/2006 — 2006/0088(COD)) (2009/C 294 E/52) (Codecision procedure: first reading)
The European Parliament,
— having regard to the Commission proposal to the European Parliament and the Council (COM(2006)0269),
— having regard to Article 251(2) and Article 62(2)(b)(ii) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0166/2006),
— having regard to Rule 51 of its Rules of Procedure,
— having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A6- 0459/2007),
1. Approves the Commission proposal as amended;
2. Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;
3. Instructs its President to forward its position to the Council and the Commission.
P6_TC1-COD(2006)0088 Position of the European Parliament adopted at first reading on 10 July 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council amending the Common Consular Instructions on visas for diplomatic missions and consular posts in relation to the introduction of biometrics including provisions on the organisation of the reception and processing of visa applications
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 62(2)(b)(ii) thereof,
Having regard to the proposal from the Commission║,
Acting in accordance with the procedure laid down in Article 251 of the Treaty ( 1 ),
( 1 ) Position of the European Parliament of 10 July 2008. 3.12.2009 EN Official Journal of the European Union C 294 E/261
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Whereas:
(1) To ensure reliable verification and identification of visa applicants it is necessary to process biometric data in the Visa Information System (VIS) established by Council Decision 2004/512/EC ( 1) and to provide for a legal framework for the capturing of these biometric identifiers. Furthermore, the implementation of the VIS requires new forms of organisation for the reception of applications for visas.
(2) The integration of biometric identifiers in the VIS is an important step towards the use of new elements, which establish a more reliable link between the visa holder and the passport in order to avoid the use of false identities. Therefore the personal appearance of the visa applicant — at least for the first application — should be one of the basic requirements for issuing a visa with the registration of biometric identifiers in the VIS.
(3) ▐ Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation) ( 2) provides that fingerprints and photographs of the applicant should be stored in the VIS. This Regulation defines the standards for the collection of these biometric identifiers by referring to the relevant provisions set out by the International Civil Aviation Organisation (ICAO). No further technical specifications are required in order to ensure interoperability.
(4) The reception arrangements for applicants should be made with due respect for human dignity and integrity. The processing of visa applications should be conducted in a professional and respectful manner and be proportionate to the objectives pursued.
(5) In order to facilitate the registration of visa applicants and to reduce the costs for Member States new organisational possibilities need to be envisaged in addition to the existing framework of ‘represen tation’. Firstly a specific type of representation limited to the reception of visa applications and enrolment of biometric identifiers should be added to the Common Consular Instructions.
(6) Other options such as co-location, common application centres and outsourcing should be introduced. An appropriate legal framework for these options should be established, taking into account in particular data protection issues. In order to ensure the integrity of the visa issuing process, any activity related to the issuing of visas, including the collection of biometric data, should take place on the premises of a Member State which enjoy diplomatic or consular protection under inter national law or on European Commission premises recognised by the host State as inviolable. Under the legal framework established, Member States should be free in accordance with the conditions laid down in this Regulation to determine which type of organisational structure they will use in each third country. Details of those structures should be published by the Commission on a common Schengen visa internet site
(7) When organising cooperation, Member States should ensure that the applicant is directed to the Member State responsible for the processing of his/her application.
(8) Since the issuing of visas is by its very nature a public task, any decision taken by the central authorities of a Member State to outsource part of the visa handling process to an external service provider should be taken only if no other possibility exists and if it is duly justified. Such arrangements should be established in strict compliance with the general principles for issuing visas, respecting the data protection requirements set out in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data ( 3 )
( 1 ) OJ L 213, 15.6.2004, p. 5. ( 2 ) OJ L 218, 13.8.2008, p. 60. ( 3 ) OJ L 281, 23.11.1995, p. 31. C 294 E/262 EN Official Journal of the European Union 3.12.2009
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(9) Any contract that a Member State concludes with an external service provider should contain provisions on: the provider's exact responsibilities; direct and total access to its premises; information for applicants; confidentiality; compliance with data protection rules; and circumstances, conditions and procedures for suspending or terminating the contract. Member States should take appropriate measures to ensure that their contracts with external service providers are enforceable.
(10) Member States should aim to organise the receipt of visa applications, the enrolment of biometric identifiers and the interview in such a way that the visa applicant is required to appear only once in person (one-stop-shop principle) in order to obtain a visa.
(11) The European Data Protection Supervisor has issued an opinion in accordance with Article 28(2) of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data ( 1 ) and the Article 29 Working Party in accordance with Article 30(1)(c) of Directive 95/46/EC.
(12) Directive 95/46/EC applies to the processing of personal data in application of this Regulation. However, certain points should be clarified, in particular in respect of the responsibility for the processing of data, of safeguarding the rights of the data subjects and of the supervision of data protection.
(13) Member States should be able to allow certain categories of applicants or all applicants direct access to their consular offices or diplomatic missions for humanitarian or other reasons.
(14) In order to facilitate the procedure of any subsequent application, it should be possible to copy biometric data from the first application within a period of 59 months from the start of the retention period provided for in Article 23 of the VIS Regulation. Once this period of time has elapsed, the biometric identifiers should be captured again.
(15) Owing to the requirement to capture biometric identifiers, commercial intermediaries such as travel agencies should no longer be used for the first application but only for the subsequent ones.
(16) The Common Consular Instructions on visas for diplomatic missions and consular posts should therefore be amended accordingly.
(17) The Commission should present a report on the implementation of this Regulation three years after the VIS is brought into operation and every four years thereafter, covering the implementation of the enrolment of biometric identifiers, the appropriateness of the ICAO standard chosen, compliance with data protection rules, experience with external service providers with specific reference to the collection of biometric data, the principle of the ‘first application’ and the organisation of the reception and the processing of visa applications. The report should also include, on the basis of Article 17(12),(13) and (14) and Article 50(4) of the VIS Regulation, the cases in which fingerprints could factually not be provided or were not required to be provided for legal reasons compared with the cases in which fingerprints are taken. The report should include information on cases in which a person who could factually not provide fingerprints was refused a visa. The report should be accompanied, where necessary, by appropriate proposals to amend this Regulation. The Commission should transmit the report to the European Parliament and the Council
( 1 ) OJ L 8, 12.1.2001, p. 1. 3.12.2009 EN Official Journal of the European Union C 294 E/263
Thursday 10 July 2008
(18) Since the objective of this Regulation, namely the organisation of the receipt and processing of visa applications in respect of the insertion of biometric data in the VIS, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective
▐
(19) This Regulation respects fundamental rights and observes the principles recognised in particular by the European Convention for the Protection of Human Rights and Fundamental Freedoms, by the Charter of Fundamental Rights of the European Union and by the United Nations Convention on the Rights of the Child.
(20) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Regulation, and is not bound by it or subject to its application. Given that this Regulation builds upon the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark shall, in accordance with Article 5 of the said Protocol, decide within a period of six months after the Council has adopted this Regulation, whether it will implement it in its national law.
(21) As regards Iceland and Norway, this Regulation constitutes a development of provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis which fall within the area referred to in Article 1, point B of Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of that Agreement ( 1 ).
(22) This Regulation constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis ( 2). The United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application.
(23) This Regulation constitutes a development of provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC of 28 February 2002 concerning Ireland's request to take part in some of the provisions of the Schengen acquis ( 3). Ireland is therefore not taking part in its adoption and is not bound by it or subject to its application.
(24) As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation concerning the Swiss Confederation's association with the implementation, application and development of the Schengen acquis which fall within the area referred to in Article 4(1) of Council Decision 2004/860/EC of 25 October 2004 on the signing, on behalf of the European Community, and on the provisional application of certain provisions of that Agreement ( 4 ).
(25) This Regulation constitutes an act building on the Schengen acquis or otherwise related to it within the meaning of Article 3(2) of the 2003 Act of Accession,
( 1 ) OJ L 176, 10.7.1999, p. 31. ( 2 ) OJ L 131, 1.6.2000, p. 43. ( 3 ) OJ L 64, 7.3.2002, p. 20. ( 4 ) OJ L 370, 17.12.2004, p. 78. C 294 E/264 EN Official Journal of the European Union 3.12.2009
Thursday 10 July 2008
HAVE ADOPTED THIS REGULATION:
Article 1 The Common Consular Instructions on visas for diplomatic missions and consular posts are hereby amended as follows:
(1) In Point II, point 1.2 shall be amended as follows:
(a) In point (b) the following paragraph shall be added:
‘A Member State may also represent one or more other Member States solely for the reception of applications and the enrolment of biometric identifiers. The relevant provisions of points 1.2(c) and (e) shall apply. Where it receives an application, the representing Member State shall create the application file in the VIS and insert the data referred to in Article 9 of the VIS Regulation (*). It shall then inform the consular post of the represented Member State of the application and the VIS entry through the VIS communication infrastructure as provided for in Article 16 of the VIS Regulation. The reception and transmission of files and data to the represented consular post shall be carried out in compliance with the relevant data protection and security rules.
______(*) Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information system (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation) (OJ L 218, 13.8.2008, p. 60).’
(b) Point (d) shall be replaced by the following:
‘When uniform visas are issued pursuant to points (a) and (b), the representation shall be reflected in the table of representation for the issuing of uniform visas set out in Annex 18.’
(2) In Point III, point -1 shall be added:
‘Conduct of staff involved in visa applications Member States shall ensure that applicants are received courteously by all staff involved in visa applications.
All staff shall, in the performance of their duties, fully respect the human dignity and integrity of the applicant. Any measures taken shall be proportionate to the objectives pursued.
While performing their tasks, staff shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.’
(3) In Point III, point 1 shall be replaced by the following:
‘1.1 Visa application forms — number of application forms Applicants shall also be required to fill in the uniform visa form. Applications for a uniform visa must be made using the harmonised form, a specimen of which is given in Annex 16.
At least one copy of the application form must be filled in so that it may be used during consultation with the central authorities. The Contracting Parties may, insofar as national administrative procedures so require, request several copies of the application. 3.12.2009 EN Official Journal of the European Union C 294 E/265
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1.2 Biometric identifiers (a) Member States shall collect biometric identifiers comprising the facial image and ten fingerprints from the applicant respecting the rights laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms, in the Charter of Fundamental Rights of the European Union and in the United Nations Convention on the Rights of the Child.
At the moment of submission of his/her first visa application each applicant not benefiting from any of the exemptions referred to in point (b) shall be required to appear in person. At that time the following biometric identifiers shall be collected:
— a photograph, scanned or taken at the time of application and
— ten fingerprints taken flat and digitally captured.
For any subsequent application, within 59 months from the start of the retention period provided for in Article 23 of the VIS Regulation, the biometric identifiers shall be copied from the first application. After this period a subsequent application shall be considered as a “first application”.
The technical requirements for the photograph and the fingerprints shall be in accordance with the international standards as set out in ICAO Document 9303, Part 1 (Passports) Sixth Edition (*).
The biometric identifiers shall be taken by qualified and duly authorised staff of the diplomatic mission or consular post or, under their supervision and responsibility, of the external service provider referred to in point 1.B.
The data shall be entered in the VIS only by the duly authorised consular staff referred to in Article 4(1), in accordance with Article 5 of the VIS Regulation.
Member States shall ensure that full use is made of all search criteria under Article 13 of the VIS Regulation in order to avoid false rejections and identifications.
The collection of biometric identifiers, including their transmission from the service provider to the responsible consular post, shall be supervised in accordance with Articles 41 and 43 of the VIS Regulation and Article 28 of the Directive 95/46/EC of the European Parliament and of the Council (**).
(b) Exemptions The following applicants shall be exempt from the requirement to give fingerprints:
— children under the age of 12;
— persons where fingerprinting is physically impossible. If, however, fingerprinting of fewer than ten fingers is possible, the corresponding number of fingerprints shall be taken. Member States shall ensure that appropriate procedures guaranteeing the dignity of the person concerned are in place in the event of there being difficulties in enrolling. They shall also ensure that the decision as to whether fingerprinting is impossible is always taken by the duly authorised staff of the diplomatic mission or consular post of the Member States. Furthermore, should the impossibility be temporary, the applicant shall be required to give fingerprints at the following application. Consular staff shall be entitled to ask for further clarification of the reasons for the temporary impossibility.
The fact that fingerprinting is physically impossible shall not influence the grant or refusal of a visa.
A Member State may provide for exemptions from the requirement to collect biometric identifiers for holders of diplomatic passports, service/official passports and special passports.
In each of these cases an entry “not applicable” shall be introduced in the VIS. C 294 E/266 EN Official Journal of the European Union 3.12.2009
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Without prejudice to the provisions of Point III.4, for persons under the age of 12, scanned photographs shall be used which do not require them to appear in person.
The exemption from the requirement to give fingerprints for children, and in particular the age range for the taking of fingerprints, shall be reviewed three years after the start of operation of the VIS. To this end the Commission shall present a report which shall in particular cover the experience of the VIS with regard to the taking and use of fingerprints from children aged 12 and over and a detailed technical assessment of the reliability of taking and using the fingerprints of children under the age of 12 for identification and verification purposes in a large-scale database such as the VIS. The report shall incorporate an extended impact assessment of lower and higher age limits for requiring fingerprints, including social, ergonomic and financial aspects.
The report shall make a similar assessment as regards the taking of fingerprints from the elderly. Should the report show significant problems with taking fingerprints of persons over a certain age, the Commission shall make a proposal to impose an upper age limit.
The report shall be accompanied, where necessary, by suitable proposals to amend this Regu lation.
______(*) The technical requirements are the same as for the passports delivered by Member States to their nationals in accordance with Council Regulation (EC) No 2252/2004 (OJ L 385, 29.12.2004, p. 1). (**) OJ L 281, 23.11.1995, p. 31.’
(4) In Point VII, point 1 shall be replaced by the following text:
‘1.A Organisation of the reception and processing of visa applications Each Member State shall be responsible for organising the reception and processing of visa applications.
For each location, Member States shall either equip their consular office with the required equipment for capturing/collecting biometric identifiers or, without prejudice to the abovementioned representation options, decide to cooperate with one or more other Member States. Any cooperation shall take the form of co-location or the establishment of a Common Application Centre or, where these are inap propriate, cooperation with external service providers.
(a) Where “co-location” is chosen, the staff of the diplomatic posts and consular missions of one or more Member States shall process the applications (including biometric identifiers) addressed to them at the diplomatic post and consular mission of another Member State and share the equipment of that Member State. The Member States concerned shall agree on the duration and conditions for the termination of the co-location as well as the proportion of the administrative fee to be received by the Member State whose diplomatic post or consular mission is being used. Applicants shall be directed to the Member State responsible for the processing of the visa application.
(b) Where “Common Application Centres” are established, the staff of the diplomatic posts and consular missions of two or more Member States shall be pooled in the building of a Member State enjoying diplomatic or consular protection under international law or in a European Commission building recognised by the host State as inviolable in order to receive the visa applications (including biometric identifiers) addressed to them. Applicants shall be directed to the Member State responsible for the processing of the visa application. Member States shall agree on the duration and conditions for the termination of such cooperation as well as the cost sharing among the participating Member States. One Member State shall be responsible for contracts in relation to logistics and diplomatic relations with the host country.
(c) Cooperation with external service providers in accordance with 1.B. 3.12.2009 EN Official Journal of the European Union C 294 E/267
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1.B Cooperation with external service providers If, owing to particular circumstances or reasons relating to the local situation of the consular post, it is not appropriate to equip the consular office for capturing/collecting biometric identifiers or to organise co-location or a Common Application Centre, one or several Member States jointly may cooperate with an external service provider for the reception of visa applications (including biometric identifiers). In such a case, the Member State(s) concerned shall remain responsible for the processing of the data and therefore liable for any breaches of contract, and in particular for compliance with data protection rules for the processing of visa applications. Those Member State(s) shall ensure that an external service provider under Point VII, point 1.B.1 point b, undertakes its activities on the premises of a Member State which enjoy diplomatic or consular protection under international law or on European Commission premises recognised by the host State as inviolable, and that qualified and duly auth orised staff of the diplomatic mission or consular post of the Member State(s) are present to closely supervise the activities of the external service provider.
1.B.1 — Types of cooperation with external service providers Cooperation with external service providers shall take [one of] the following form[s]:
(a) the external service provider shall act as a call centre providing general information on the requirements for applying for a visa and be in charge of the appointment system;
(b) the external service provider shall provide general information on the requirements for applying for a visa, collect applications, supporting documents and biometric data from visa applicants and collect the handling fee (as provided for by Part VII, point 4, and Annex 12), transmit the completed files and data to the diplomatic mission or consular post of the Member State competent for the processing of the application and return the passport to the applicant or to the applicant's legal representative at the end of the procedure.
1.B.2 — Obligations of Member States In compliance with Directive 95/46/EC, the Member State(s) concerned shall select an external service provider which is able to ensure a high quality of service and all the technical and organisational security measures necessary to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network as well as the reception and transmission of files and data to the consular post, and against all other unlawful forms of processing.
When selecting external service providers, Member States’ diplomatic missions or consular posts shall scrutinise the solvency and reliability of the company (including necessary licences, commercial regis tration, company statutes, bank contracts and shall ensure there is no conflict of interests.
The diplomatic missions or consular posts of the Member States shall ensure that the company selected offers relevant professional expertise in information assurance and data security. Member States should follow best procurement practices in contracting external visa support services.
External service providers shall not have access to the VIS for any purpose. Access to the VIS shall be reserved exclusively to duly authorised staff of diplomatic missions or consular posts solely for the purposes laid down in the VIS Regulation.
The Member State(s) concerned shall conclude a written contract with the external service provider in accordance with Article 17 of Directive 95/46/EC. Before concluding such a contract, the diplomatic mission or consular post of the Member State concerned shall justify, with reasons in accordance with Point VII, point 1.B, the need for the contract with the diplomatic missions and consular posts of other Member States and the Commission delegation within local consular cooperation. C 294 E/268 EN Official Journal of the European Union 3.12.2009
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In addition to the obligations set out in Article 17 of Directive 95/46/EC, the contract shall also contain provisions which:
(a) define the exact responsibilities of the service provider;
(b) require the service provider to act under the instructions of the responsible Member States and to process the data only for the purposes of processing of personal data of visa applications on behalf of the responsible Member States in compliance with Directive 95/46/EC;
(c) require the service provider to provide applicants with the information required under Article 37 of the VIS Regulation;
(d) require the service provider to ensure that its staff are appropriately trained and respect the rules laid down in Point III, point -1;
(e) require the service provider to adopt appropriate anti-corruption measures;
(f) require the service provider to report to the responsible Member State without delay any security breaches or any other problems;
(g) require the service provider to record any complaints or notifications from applicants on data misuse or unauthorised access. The external service provider shall inform the responsible Member State's diplomatic mission or consular post without delay and coordinate with them in order to find a solution. Complaints shall be handled in such a way as to ensure that explanatory responses are given to visa applicants promptly;
(h) provide for access by consular staff to the premises of the service provider at all times;
(i) require the service provider and its staff to observe rules of confidentiality which shall also apply once the staff have left the employ of the external service provider or after the suspension or termination of the contract;
(j) ensure data protection compliance, including reporting obligations, external audits, regular spot checks by, inter alia, national data protection authorities, and that mechanisms are in place for the apportionment of the liability of a contractor in the event of a breach of the regulations on privacy, including the obligation to compensate individuals where they have suffered damage resulting from an act or omission of the service provider;
(k) require the service provider to transmit without delay the completed file to the diplomatic mission or consular post of the Member State responsible for the processing of the application and not to copy, store, or otherwise retain any data collected after the transmission;
(l) require the service provider to prevent any unauthorised reading, copying, modification or deletion of visa data during the transmission from the service provider to the diplomatic mission or consular post of the Member State responsible for the processing of the application, in particular by means of appropriate encryption techniques;
(m) contain a suspension and termination clause;
(n) contain a revision clause with a view to ensuring that contracts reflect best current practices;
(o) lay down rules on the conduct of the staff responsible for handling visa applications and for collecting biometric data with maximum respect for human dignity. Any measure taken when carrying out those duties shall be proportionate to the aims of that measure. In processing the application, staff shall avoid any discrimination among persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
A model contract shall be established within local consular cooperation. 3.12.2009 EN Official Journal of the European Union C 294 E/269
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Member States shall ensure that there is the least possible service disruption for visa applicants in the event of the external service provider suddenly ceasing to provide the services required under the contract.
The Member State(s) concerned shall cooperate closely with the external service provider and shall closely monitor the implementation of the contract, including:
(a) the general information provided by the service provider to visa applicants;
(b) the technical and organisational security measures and appropriate technical and organisational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the trans mission of data over a network, and against all other unlawful forms of processing, as well as the reception and transmission of files and data to the diplomatic mission or consular post;
(c) the capturing and transmission of biometric identifiers;
(d) the measures taken to ensure compliance with data protection and data security provisions as well as measures against corruption.
The fee paid by the applicant shall not exceed the fee set out in Annex 12, irrespective of whether Member States cooperate with external service providers.
Member States shall ensure that a procedure is in place allowing for the identification of the external service provider handling any visa application.
The consular staff of the Member State(s) concerned shall give training to the service provider, corre sponding to the knowledge needed to offer appropriate service and sufficient information to visa applicants.
1.B.3 — Information Member States and their diplomatic missions or consular posts shall provide the general public with all relevant information in relation to a visa application, including:
(a) the criteria, conditions and procedures for applying for a visa;
(b) the means of obtaining an appointment, if applicable;
(c) where the application should be submitted (competent diplomatic mission or consular post, common application centre or external service provider).
This information to the general public shall also be available through a common Schengen visa internet site.
That site shall be established in order to further support the application of the common visa policy and the handling of the visa procedure.
1.B.4 — Information Campaign Shortly before the VIS is brought into operation in a third country, the diplomatic missions or consular posts of Member States together with the delegation of the Commission shall launch a campaign informing the general public about the objectives pursued, the data stored in, and the authorities having access to, the VIS, and the rights of visa applicants. Such campaigns shall be conducted regularly. C 294 E/270 EN Official Journal of the European Union 3.12.2009
Thursday 10 July 2008
1.C Maintenance of direct access for applicants to Member States diplomatic missions and consular posts Irrespective of the type of cooperation chosen, Member States may decide to maintain the possibility of allowing applicants direct access to lodge an application for a visa directly at the premises of their diplomatic missions or consular posts. Member States shall ensure the continuity of reception and processing of visa applications, in the event of the sudden termination of cooperation with other Member States or any type of external service provider.
1.D Decision and publication Member States shall inform the Commission of how they intend to organise the reception and processing of visa applications in each consular location. The Commission shall ensure appropriate publication on the common Schengen visa internet site.
Member States shall provide the Commission with the contracts they conclude.
1.E General responsibilities 1.E.1 Documents Any document, data or biometric identifier received by, or on behalf of, a Member State in the course of a visa application shall be considered a “consular document” under the Vienna Convention on Consular Relations and shall be treated in an appropriate manner.
1.E.2 Training Before being authorised to take biometric identifiers, the staff of the diplomatic mission or consular post shall receive appropriate training so as to ensure smooth and professional enrolment.
1.E.3 Liability Any person who, or Member State which, has suffered damage as a result of an unlawful processing operation or any act in breach of this Regulation shall be entitled to receive compensation from the Member State which is responsible for the damage suffered. That Member State shall be exempted from its liability, in whole or in part, if it proves that it is not responsible for the event giving rise to the damage.
Claims for compensation against a Member State for the damage referred to in the previous subparagraph shall be governed by the provisions of national law of the defendant Member State.
1.E.4 Penalties Member States shall take the necessary measures to ensure that any breach of this Regulation, in particular any misuse of data submitted for a visa application is punishable by penalties, including administrative and/or criminal penalties in accordance with national law, that are effective, propor tionate and dissuasive.’
(5) In point VIII, point 5.2 shall be amended as follows:
(a) the title shall be replaced by the following:
‘5.2. Member States’ diplomatic missions and consular posts’ cooperation with commercial inter mediaries’ (b) the following sentence shall be inserted between the title and point 5.2(a):
‘For repeated applications within the meaning of point III 1.2, Member States may allow their diplomatic missions or consular posts to cooperate with commercial intermediaries (i.e. private administrative agencies, transport or travel agencies (tour operators and retailers)).’ 3.12.2009 EN Official Journal of the European Union C 294 E/271
Thursday 10 July 2008
Article 2 The Commission shall present, three years after the VIS is brought into operation and every four years thereafter, a report to the European Parliament and to the Council on the implementation of this Regu lation, including the implementation of the enrolment of biometric identifiers, the appropriateness of the ICAO standard chosen, compliance with data protection rules, experience with external service providers with specific reference to the collection of biometric data, the principle of the ‘first application’ and the organisation of the reception and the processing of visa applications. The report shall also include, on the basis of Article 17(12),(13) and (14) and of Article 50(4) of the VIS Regulation, the cases in which fingerprints could factually not be provided or were not required to be provided for legal reasons compared with the number of cases in which fingerprints were taken. The report shall include information on cases in which a person who could factually not provide fingerprints was refused a visa.
The report shall be accompanied, where necessary, by appropriate proposals to amend this Regulation.
Article 3 This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at ║,
For the European Parliament For the Council The President The President
EC/Mauritania Fisheries Partnership for the period 1 August 2008 to 31 July 2008* P6_TA(2008)0359 European Parliament legislative resolution of 10 July 2008 on the proposal for a Council regulation on the conclusion of the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community and the Islamic Republic of Mauritania for the period 1 August 2008 to 31 July 2012 (COM(2008)0243 — C6-0199/2008 — 2008/0093(CNS)) (2009/C 294 E/53) (Consultation procedure)
The European Parliament,
— having regard to the proposal for a Council regulation (COM(2008)0243),
— having regard to Articles 37 and 300(2), first subparagraph, of the EC Treaty,
— having regard to Article 300(3), first subparagraph, of the EC Treaty, pursuant to which the Council consulted Parliament (C6-0199/2008),
— having regard to Rules 51 and 83(7) of its Rules of Procedure,
— having regard to the report of the Committee on Fisheries and the opinions of the Committee on Development and the Committee on Budgets (A6-0278/2008),
1. Approves the proposal for a Council regulation as amended and approves the conclusion of the Protocol;
2. Instructs its President to forward its position to the Council, the Commission, and the governments and parliaments of the Member States and the Islamic Republic of Mauritania. C 294 E/272 EN Official Journal of the European Union 3.12.2009
Thursday 10 July 2008
TEXT PROPOSED BY THE COMMISSION AMENDMENTS
Amendment 1 Proposal for a regulation Recital 2a (new)
(2a) The entry into force of the Treaty of Lisbon would, if ratified, impose closer interinstitutional cooperation which, inter alia, should lead to the European Parliament having greater and better access to all the information relating to fisheries agreements, including during the negotiations on protocols.
Amendment 2 Proposal for a regulation Article 1a (new)
Article 1a A member of the European Parliament's Committee on Fisheries shall attend the meetings and proceedings of the Joint Committee provided for in Article 10 of the Agreement as an observer. Representatives of the fisheries sector covered by the Agreement may also attend these meetings.
Amendment 3 Proposal for a regulation Article 4a (new)
Article 4a The Commission shall forward the conclusions of the meetings of the Joint Committee provided for in Article 10 of the Agreement to the European Parliament. During the final year of application of the Protocol and before another agreement is signed on its renewal, the Commission shall submit to the European Parliament and the Council a report on its application.
Amendment 4 Proposal for a regulation Article 4b (new)
Article 4b In accordance with Article 30(3) of the Financial Regu lation (1 ), and in the spirit of the European Parliament's resolution of 19 February 2008 on transparency in financial matters (2 ), the Commission shall publish annually on its website a list of individual end-beneficiaries of the EU financial contribution. ______( 1 ) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ L 248, 16.9.2002, p. 1). ( 2 ) Texts Adopted, P6_TA(2008)0051. 3.12.2009 EN Official Journal of the European Union C 294 E/273
Thursday 10 July 2008
Restructuring of EU fishing fleets affected by the economic crisis * P6_TA(2008)0360 European Parliament legislative resolution of 10 July 2008 on the proposal for a Council regulation instituting a temporary specific action aiming to promote the restructuring of the European Union fishing fleets affected by the economic crisis (COM(2008)0454 — C6-0270/2008 — 2008/0144(CNS)) (2009/C 294 E/54) (Consultation procedure)
The European Parliament,
— having regard to the Commission proposal to the Council (COM(2008)0454),
— having regard to Articles 36 and 37 of the EC Treaty, pursuant to which the Council consulted Parliament (C6-0270/2008),
— having regard to Rules 51 and 134 of its Rules of Procedure,
1. Approves the Commission proposal;
2. Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;
3. Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially;
4. Instructs its President to forward its position to the Council and the Commission. Notice No Contents (continued) Page
(2009/C 294 E/16) Space and security European Parliament resolution of 10 July 2008 on Space and security (2008/2030(INI)) ...... 69
(2009/C 294 E/17) Kashmir European Parliament resolution of 10 July 2008 on allegations of mass graves in Indian-administered Kashmir 75
(2009/C 294 E/18) Bangladesh European Parliament resolution of 10 July 2008 on Bangladesh ...... 77
(2009/C 294 E/19) Death penalty European Parliament resolution of 10 July 2008 on the death penalty, particularly the case of Troy Davis ...... 80
II Information
INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES
European Parliament
Tuesday 8 July 2008
(2009/C 294 E/20) Request for waiver of the immunity of Witold Tomczak European Parliament decision of 8 July 2008 on the request for waiver of the immunity of Witold Tomczak (2008/2078(IMM)) ...... 81
(2009/C 294 E/21) Approval of the Commission (amendment of the Rules of Procedure) European Parliament decision of 8 July 2008 on amendment of Parliament's Rules of Procedure with respect to the approval of the Commission (2007/2128(REG)) ...... 82
(2009/C 294 E/22) The work of the Plenary and initiative reports (amendment of the Rules of Procedure) European Parliament decision of 8 July 2008 on amendment of Parliament's Rules of Procedure in light of the proposals by the Working Party on Parliamentary Reform concerning the work of the Plenary and initiative reports (2007/2272(REG)) ...... 86
Wednesday 9 July 2008
(2009/C 294 E/23) Formation of political groups (amendment of Rule 29) European Parliament decision of 9 July 2008 on amendment of Rule 29 of Parliament's Rules of Procedure — Formation of political groups (2006/2201(REG)) ...... 91
EN Notice No Contents (continued) Page
III Preparatory acts
European Parliament
Tuesday 8 July 2008
(2009/C 294 E/24) European Neighbourhood and Partnership Instrument: general provisions ***I European Parliament legislative resolution of 8 July 2008 on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 1638/2006 laying down general provisions estab lishing a European Neighbourhood and Partnership Instrument (COM(2008)0308 — C6-0200/2008 — 2008/0095(COD)) ...... 92
(2009/C 294 E/25) Direct support schemes under the CAP * European Parliament legislative resolution of 8 July 2008 on the proposal for a Council regulation amending Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agri cultural policy and establishing certain support schemes for farmers (COM(2008)0247 — C6-0208/2008 — 2008/0088(CNS)) ...... 93
(2009/C 294 E/26) Minimum safety and health requirements for the use of work equipment ***I European Parliament legislative resolution of 8 July 2008 on the proposal for a directive of the European Parliament and of the Council on the minimum safety and health requirements for the use of work equipment by workers at work (second individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (codified version) (COM(2008)0111 — C6-0127/2008 — 2006/0214(COD)) ...... 93
(2009/C 294 E/27) Conservation of wild birds (adaptation to the regulatory procedure with scrutiny) ***I European Parliament legislative resolution of 8 July 2008 on the proposal for a directive of the European Parliament and of the Council amending, as regards the implementing powers conferred on the Commission, Council Directive 79/409/EEC on the conservation of wild birds (COM(2008)0105 — C6-0088/2008 — 2008/0038(COD)) ...... 94
(2009/C 294 E/28) Common system of value added tax * European Parliament legislative resolution of 8 July 2008 on the proposal for a Council directive amending VAT Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (COM(2007)0677 — C6-0433/2007 — 2007/0238(CNS)) ...... 95
(2009/C 294 E/29) Protocol on Strategic Environmental Assessment to the 1991 UN/ECE Espoo Convention on Envi ronmental Impact Assessment in a Transboundary Context * European Parliament legislative resolution of 8 July 2008 on the proposal for a Council decision on the approval on behalf of the European Community of the Protocol on Strategic Environmental Assessment to the 1991 UN/ECE Espoo Convention on Environmental Impact Assessment in a Transboundary Context (COM(2008)0132 — C6-0161/2008 — 2008/0052(CNS)) ...... 98
(2009/C 294 E/30) Protocol on the Accession of Liechtenstein to the EU/EC/Switzerland Agreement on Switzerland's association with the Schengen acquis * European Parliament legislative resolution of 8 July 2008 on the proposal for a Council decision on the conclusion, on behalf of the European Community, of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confed eration on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis (COM(2006)0752 — C6-0089/2008 — 2006/0251(CNS)) ...... 99
EN Notice No Contents (continued) Page
(2009/C 294 E/31) Protocol on the Accession of Liechtenstein to the EC/Switzerland Agreement for establishing the State responsible for examining asylum requests * European Parliament legislative resolution of 8 July 2008 on the proposal for a Council decision on the conclusion of a Protocol between the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland (COM(2006)0754 — C6-0090/2008 — 2006/0252(CNS)) ...... 100
(2009/C 294 E/32) Protocol to the EC/Switzerland Agreement for establishing the State responsible for examining asylum requests * European Parliament legislative resolution of 8 July 2008 on the proposal for a Council decision on the conclusion of a Protocol between the European Community, Switzerland and Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State, in Switzerland or Liechtenstein (COM(2006)0753 — C6-0091/2008 — 2006/0257(CNS)) ...... 101
(2009/C 294 E/33) Numbering of visas * European Parliament legislative resolution of 8 July 2008 on the proposal for a Council regulation amending Regulation (EC) No 1683/95 laying down a uniform format for visas as regards the numbering of visas (COM(2008)0188 — C6-0187/2008 — 2008/0074(CNS)) ...... 102
(2009/C 294 E/34) Renewing the Agreement for scientific and technological cooperation between the European Community and the Government of the Republic of India * European Parliament legislative resolution of 8 July 2008 on the draft Council decision concerning the conclusion of an Agreement renewing the Agreement for scientific and technological cooperation between the European Community and the Government of the Republic of India (16681/2007 — COM(2007)0576 — C6-0073/2008 — 2007/0207(CNS)) ...... 103
(2009/C 294 E/35) Common authorisation procedure for food additives, food enzymes and food f lavourings ***II European Parliament legislative resolution of 8 July 2008 on the Council common position for adopting a regulation of the European Parliament and of the Council establishing a common authorisation procedure for food additives, food enzymes and food flavourings (16673/2/2007 — C6-0138/2008 — 2006/0143(COD)) . . . 105
P6_TC2-COD(2006)0143
Position of the European Parliament adopted at second reading on 8 July 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council establishing a common authorisation procedure for food additives, food enzymes and food flavourings ...... 106
(2009/C 294 E/36) Food additives ***II European Parliament legislative resolution of 8 July 2008 on the Council common position for adopting a regulation of the European Parliament and of the Council on food additives (16675/2/2007 — C6-0141/2008 — 2006/0145(COD)) ...... 106
P6_TC2-COD(2006)0145
Position of the European Parliament adopted at second reading on 8 July 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council on food additives ...... 106
EN Notice No Contents (continued) Page
(2009/C 294 E/37) Flavourings and certain food ingredients with f lavouring properties ***II European Parliament legislative resolution of 8 July 2008 on the Council common position for adopting a regulation of the European Parliament and of the Council on flavourings and certain food ingredients with flavouring properties for use in and on foods and amending Council Regulations (EEC) No 1576/89 and (EEC) No 1601/91, Regulation (EC) No 2232/96 and Directive 2000/13/EC (16677/3/2007 — C6-0139/2008 — 2006/0147(COD)) ...... 107
P6_TC2-COD(2006)0147
Position of the European Parliament adopted at second reading on 8 July 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council on flavourings and certain food ingredients with flavouring properties for use in and on foods and amending Council Regulation (EEC) No 1601/91, Regulations (EC) No 2232/96 and (EC) No 110/2008 and Directive 2000/13/EC ...... 107
(2009/C 294 E/38) Food enzymes ***II European Parliament legislative resolution of 8 July 2008 on the Council common position for adopting a regulation of the European Parliament and of the Council on food enzymes and amending Council Directive 83/417/EEC, Council Regulation (EC) No 1493/1999, Directive 2000/13/EC, Council Directive 2001/112/EC and Regulation (EC) No 258/97 (16676/1/2007 — C6-0140/2008 — 2006/0144(COD)) ...... 108
P6_TC2-COD(2006)0144
Position of the European Parliament adopted at second reading on 8 July 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council on food enzymes and amending Council Directive 83/417/EEC, Council Regulation (EC) No 1493/1999, Directive 2000/13/EC, Council Directive 2001/112/EC and Regulation (EC) No 258/97 ...... 108
(2009/C 294 E/39) Amendment of Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community ***II European Parliament legislative resolution of 8 July 2008 on the Council common position for adopting a directive of the European Parliament and of the Council amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community (5058/3/2008 — C6-0177/2008 — 2006/0304(COD)) ...... 109
P6_TC2-COD(2006)0304
Position of the European Parliament adopted at second reading on 8 July 2008 with a view to the adoption of Directive 2008/…/EC of the European Parliament and of the Council amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community 109
(2009/C 294 E/40) 2009 budget: First reflections on the 2009 PDB and mandate for the conciliation European Parliament resolution of 8 July 2008 on the 2009 budget: First reflections on the 2009 Preliminary Draft Budget and mandate for the conciliation, Section III — Commission (2008/2025(BUD)) ...... 110
Wednesday 9 July 2008
(2009/C 294 E/41) Safety on the Community's railways ***II European Parliament legislative resolution of 9 July 2008 on the Council common position for adopting a directive of the European Parliament and of the Council amending Directive 2004/49/EC on safety on the Community's railways (Railway Safety Directive) (16133/3/2007 — C6-0129/2008 — 2006/0272(COD)) ...... 121
EN Notice No Contents (continued) Page
P6_TC2-COD(2006)0272
Position of the European parliament adopted at second reading on 9 July 2008 with a view to the adoption of Directive 2008/…/EC of the European Parliament and of the Council amending Directive 2004/49/EC on safety on the Community's railways (Railway Safety Directive) ...... 121
(2009/C 294 E/42) Amendment of Regulation (EC) No 881/2004 establishing a European Railway Agency ***II European Parliament legislative resolution of 9 July 2008 on the Council common position for adopting a regulation of the European Parliament and of the Council amending Regulation (EC) No 881/2004 establishing a European Railway Agency (Agency Regulation) (16138/3/2007 — C6-0131/2008 — 2006/0274(COD)) . . . . . 122
P6_TC2-COD(2006)0274
Position of the European Parliament adopted at second reading on 9 July 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council amending Regulation (EC) No 881/2004 establishing a European Railway Agency (Agency Regulation) ...... 122
(2009/C 294 E/43) Rules for the operation of air services in the Community (recast) ***II European Parliament legislative resolution of 9 July 2008 on the Council common position for adopting a regulation of the European Parliament and of the Council on common rules for the operation of air services in the Community (recast) (16160/4/2007 — C6-0176/2008 — 2006/0130(COD)) ...... 123
(2009/C 294 E/44) Programme for the Modernisation of European Enterprise and Trade Statistics (MEETS) ***I European Parliament legislative resolution of 9 July 2008 on the proposal for a decision of the European Parliament and of the Council on a Programme for the Modernisation of European Enterprise and Trade Statistics (MEETS) (COM(2007)0433 — C6-0234/2007 — 2007/0156(COD)) ...... 124
P6_TC1-COD(2007)0156
Position of the European Parliament adopted at first reading on 9 July 2008 with a view to the adoption of Decision No …/2008/EC of the European Parliament and of the Council on a Programme for the Modernisation of European Enterprise and Trade Statistics (MEETS) ...... 124
(2009/C 294 E/45) Batteries and accumulators and their waste ***I European Parliament legislative resolution of 9 July 2008 on the proposal for a directive of the European Parliament and of the Council amending Directive 2006/66/EC of the European Parliament and of the Council on batteries and accumulators and waste batteries and accumulators as regards Article 6(2) on placing batteries and accumulators on the market (COM(2008)0211 — C6-0165/2008 — 2008/0081(COD)) ...... 125
P6_TC1-COD(2008)0081
Position of the European Parliament adopted at first reading on 9 July 2008 with a view to the adoption of Directive 2008/…/EC of the European Parliament and of the Council amending Directive 2006/66/EC on batteries and accumulators and waste batteries and accumulators as regards placing batteries and accumulators on the market ...... 125
EN Notice No Contents (continued) Page
(2009/C 294 E/46) Restrictions on the marketing and use of certain dangerous substances and preparations ***I European Parliament legislative resolution of 9 July 2008 on the proposal for a decision of the European Parliament and of the Council amending Council Directive 76/769/EEC as regards restrictions on the marketing and use of certain dangerous substances and preparations 2-(2-methoxyethoxy)ethanol, 2-(2-butoxyethoxy)ethanol, methylenediphenyl diisocyanate, cyclohexane and ammonium nitrate (COM(2007)0559 — C6-0327/2007 — 2007/0200(COD)) ...... 126
P6_TC1-COD(2007)0200
Position of the European Parliament adopted at first reading on 9 July 2008 with a view to the adoption of Decision No …/2008/EC of the European Parliament and of the Council amending Council Directive 76/769/EEC as regards restrictions on the marketing and use of certain dangerous substances and preparations 2-(2-metho xyethoxy)ethanol, 2-(2-butoxyethoxy)ethanol, methylenediphenyl diisocyanate, cyclohexane and ammonium nitrate 126
(2009/C 294 E/47) Conditions for access to the natural gas transmission networks ***I European Parliament legislative resolution of 9 July 2008 on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 1775/2005 on conditions for access to the natural gas transmission networks (COM(2007)0532 — C6-0319/2007 — 2007/0199(COD)) ...... 127
P6_TC1-COD(2007)0199
Position of the European Parliament adopted at first reading on 9 July 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council amending Regulation (EC) No 1775/2005 on conditions for access to the natural gas transmission networks ...... 127
(2009/C 294 E/48) Internal market in natural gas ***I European Parliament legislative resolution of 9 July 2008 on the proposal for a directive of the European Parliament and of the Council amending Directive 2003/55/EC concerning common rules for the internal market in natural gas (COM(2007)0529 — C6-0317/2007 — 2007/0196(COD)) ...... 142
P6_TC1-COD(2007)0196
Position of the European Parliament adopted at first reading on 9 July 2008 with a view to the adoption of Directive 2008/…/EC of the European Parliament and of the Council amending Directive 2003/55/EC concerning common rules for the internal market in natural gas ...... 142
(2009/C 294 E/49) Coordination of social security systems ***I European Parliament legislative resolution of 9 July 2008 on the proposal for a regulation of the European Parliament and of the Council laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (COM(2006)0016 — C6-0037/2006 — 2006/0006(COD)) ...... 181
P6_TC1-COD(2006)0006
Position of the European Parliament adopted at first reading on 9 July 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems and repealing Regu lation (EEC) No 574/72 ...... 181
ANNEX I
Implementing provisions for bilateral agreements remaining in force and new implementing provisions for bilateral agreements ...... 225
ANNEX II Special schemes for civil servants ...... 225
EN Notice No Contents (continued) Page
ANNEX III
Member States reimbursing the cost of benefits on a lump-sum basis ...... 225
ANNEX IV
Competent authorities and institutions, institutions of the place of residence and stay, access points, institutions and bodies designated by the competent authorities ...... 225
(2009/C 294 E/50) Coordination of social security systems ***I European Parliament legislative resolution of 9 July 2008 on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 883/2004 on the coordination of social security systems, and determining the content of Annex XI (COM(2006)0007 — C6-0029/2006 — 2006/0008(COD)) 226
P6_TC1-COD(2006)0008
Position of the European Parliament adopted at first reading on 9 July 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council amending Regulation (EC) No 883/2004 on the coordination of social security systems, and determining the content of its annexes . . . . . 226
ANNEX ...... 231
(2009/C 294 E/51) Extending Regulation (EC) No 883/2004 to third country nationals otherwise excluded * European Parliament legislative resolution of 9 July 2008 on the proposal for a Council regulation extending the provisions of Regulation (EC) No 883/2004 and Regulation (EC) No […] to nationals of third countries who are not already covered by these provisions solely on the ground of their nationality (COM(2007)0439 — C6-0289/2007 — 2007/0152(CNS)) ...... 259
Thursday 10 July 2008
(2009/C 294 E/52) Common consular instructions: biometric identifiers and visa applications ***I European Parliament legislative resolution of 10 July 2008 on the proposal for a regulation of the European Parliament and of the Council amending the Common Consular Instructions on visas for diplomatic missions and consular posts in relation to the introduction of biometrics including provisions on the organisation of the reception and processing of visa applications (COM(2006)0269 — C6-0166/2006 — 2006/0088(COD)) ...... 260
P6_TC1-COD(2006)0088
Position of the European Parliament adopted at first reading on 10 July 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council amending the Common Consular Instructions on visas for diplomatic missions and consular posts in relation to the introduction of biometrics including provisions on the organisation of the reception and processing of visa applications ...... 260
(2009/C 294 E/53) EC/Mauritania Fisheries Partnership for the period 1 August 2008 to 31 July 2008 * European Parliament legislative resolution of 10 July 2008 on the proposal for a Council regulation on the conclusion of the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community and the Islamic Republic of Mauritania for the period 1 August 2008 to 31 July 2012 (COM(2008)0243 — C6-0199/2008 — 2008/0093(CNS)) ...... 271
(2009/C 294 E/54) Restructuring of EU fishing f leets affected by the economic crisis * European Parliament legislative resolution of 10 July 2008 on the proposal for a Council regulation instituting a temporary specific action aiming to promote the restructuring of the European Union fishing fleets affected by the economic crisis (COM(2008)0454 — C6-0270/2008 — 2008/0144(CNS)) ...... 273
EN Key to symbols used * Consultation procedure **I Cooperation procedure: first reading **II Cooperation procedure: second reading *** Assent procedure ***I Codecision procedure: first reading ***II Codecision procedure: second reading ***III Codecision procedure: third reading (The type of procedure is determined by the legal basis proposed by the Commission.) Political amendments: new or amended text is highlighted in bold italics; deletions are indicated by the symbol ■ . Technical corrections and adaptations by the services: new or replacement text is highlighted in italics and deletions are indicated by the symbol ||.
EN