Convening of the Intergovernmental Conference: opinion of the European Parliament
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European Parliament resolution of 11 July 2007 on the convening of the Intergovernmental Conference (IGC): the European Parliament's opinion (Article 48 of the EU Treaty) (11222/2007 – C6-0206/2007 – 2007/0808(CNS))
– having regard to Article 48(2) of the Treaty on European Union, pursuant to which the Council consulted Parliament (C6-0206/2007),
– having regard to the Treaty on European Union and the Treaty establishing the European Community,
– having regard to the Treaty establishing a Constitution for Europe signed in Rome on 29 October 2004 (hereafter referred to as 'the Constitutional Treaty'),
– having regard to the Charter of Fundamental Rights of the European Union signed and proclaimed in Nice on 7 December 2000,
– having regard to the Laeken Declaration of 15 December 2001 on the future of the Union,
– having regard to the Berlin Declaration of 25 March 2007 on the occasion of the fiftieth anniversary of the signature of the Treaties of Rome,
– having regard to its resolutions of 12 January 2005 on the Treaty establishing a Constitution for Europe(1) and of 7 June 2007 on the roadmap for the Union's constitutional process(2),
– having regard to the resolution of the European Economic and Social Committee of 30 May 2007 on the roadmap for the constitutional process and to the opinion of the Committee of the Regions of 6 June 2007 on relaunching the process of reforming the European Union in anticipation of the European Council of 21 and 22 June 2007,
– having regard to the joint parliamentary meeting on the future of Europe held on 11 and 12 June 2007 in Brussels,
– having regard to the Presidency Conclusions of the European Council held in Brussels on 21 and 22 June 2007 setting out the mandate for the IGC,
– having regard to the report of the Committee on Constitutional Affairs (A6-0279/2007),
Whereas:
A. two years of reflection on the future of Europe have confirmed the need to safeguard and to improve the content of the innovations of the Constitutional Treaty in terms of democracy, efficiency and transparency, in order to ensure the proper functioning of the European Union as well as to enhance the rights of its citizens and its role in the world,
B. this view is broadly shared by the national parliaments of the Member States and the European Parliament, whose representatives worked out the basis for these innovations within the Convention entrusted with drafting the Charter of Fundamental Rights and in the European Convention,
C. the European Council of June 2007 agreed on convening an IGC with a mandate to transform most of the innovations contained in the Constitutional Treaty into amendments to the Treaties in force,
D. that mandate is very precise and also allows the IGC to quickly agree on the modification of some of the innovations contained in the Constitutional Treaty, without jeopardising its substance;
E. the mandate, however, renounces the ambition of creating a single, constitutional treaty to replace the existing ones, abandons terminology which would give citizens a clear understanding of the nature of the acts of the Union, does not maintain a set of symbols which would make it easier for citizens to identify with the European Union, and includes several opt-outs in certain areas where difficulties have been raised by individual Member States,
F. the mandate does not sufficiently address the new challenges which the Union has been facing since the Constitutional Treaty was signed,
G. the European Parliament, as the only institution of the Union directly elected by the citizens, is duty bound to voice the common interest of the European Union in order to strengthen European construction and the Community method, which, for more than 50 years, have been a source of peace, stability and prosperity,
1. Welcomes the efforts deployed by the German Presidency of the Council to achieve unanimous agreement at the European Council of 21 and 22 June 2007;
2. Takes note of the mandate for the IGC which was agreed by the European Council; welcomes its elaborate precision and the tight timetable for conclusion of the IGC, and calls on the Member States not to retreat from the commitments to which they subscribed in the European Council; expresses a favourable opinion on the convening of the IGC;
3. Regrets, however, that this mandate implies the loss of some important elements that had been agreed during the 2004 IGC, such as the concept of a constitutional treaty, the symbols of the Union, comprehensible names for the legal acts of the Union, a clear statement of the primacy of the law of the Union and the definition of the Union as a Union of citizens and states, and also implies a long delay in the introduction of others;
4. Expresses its concern at the fact that the mandate allows for an increasing number of derogations granted to certain Member States from the implementation of major provisions of the envisaged Treaties that could lead to a weakening of the cohesion of the Union;
5. Regrets that the mandate allows for various drafting changes to the Constitutional Treaty, which give an impression of distrust vis-à-vis the Union and its institutions and thus send a wrong signal to public opinion;
6. Regrets the decreasing European goodwill and political courage of Member State representatives and expresses its concern at the development of attitudes opposed to the European ideals of solidarity and integration;
7. Stresses that the mandate allows for modification of the names of legal acts, but does not provide for any substantial change in their structure or hierarchy, and expresses its intention to closely scrutinise the way in which this will be introduced in the relevant provisions, with a view to guaranteeing political accountability and safeguarding its legislative powers, in particular as regards the scrutiny of delegated acts;
8. Welcomes, nevertheless, the fact that the mandate safeguards much of the substance of the Constitutional Treaty, notably the single legal personality of the Union and the abolition of the 'pillars' structure, the extension of qualified majority voting in the Council and co-decision by Parliament and the Council, the elements of participatory democracy, the legally binding status of the Charter of Fundamental Rights, the enhancement of the coherence of the external action of the Union and the balanced institutional package;
9. Observes that all positive results in terms of strengthening democratic procedures and citizens' rights, extending competences and defining the EU's values and objectives derive exclusively from the work of the European Convention;
10. Welcomes the fact that economic and monetary union is to be recognised in the Treaty on European Union as an objective of the EU;
11. Welcomes the fact that the mandate provides for the introduction of certain new elements into the Treaties, such as the explicit mention of climate change and solidarity in the field of energy;
12. Recalls that the EU has declared itself, both to its own citizens and to the whole world, to be a community of values, that fundamental rights and freedoms form the innermost core of this community of values and that they have been comprehensively expressed in the Charter of Fundamental Rights and recognised by the EU institutions and all the Member States on many occasions; considers, therefore, that if one or more Member States now claim an opt-out from the Charter of Fundamental Rights, this would represent a dramatic setback and cause serious damage to the EU's innermost sense of identity; for this reason, urgently appeals to all Member States once again to make every effort to overcome this internal division and to reach a consensus after all on the complete validity of the Charter;
13. Invites the IGC to conclude its work before the end of 2007, so as to enable the new Treaty to enter into force in good time before the 2009 European elections;
14. Welcomes the strengthening of the modalities of its participation in the IGC at all levels, as agreed by the European Council of June 2007;
15. Reserves its right to make concrete proposals to the IGC on specific items within the scope of the mandate;
16. Will respond in due time to the invitation made by the European Council to deal with the issue of its own composition;
17. Stresses its intention to carefully scrutinise the outcome of the IGC in order to assess whether the reforms agreed during the negotiations comply in a satisfactory way with its interpretation of the mandate;
18. Calls on the Member States and its own representatives to ensure the full transparency of the work done by the IGC, notably by publishing all the documents submitted to it for discussion;
19. Reaffirms its intention to maintain a very close relationship with national parliaments and with civil society during the process of revision of the Treaties;
20. Calls on the IGC to ensure, for reasons of transparency, that the results of its work will also be published in the form of a draft consolidated version of the Treaties;
21. Announces its firm resolve to put forward, after the 2009 elections, new proposals for a further constitutional settlement for the Union, in accordance with the clause on treaty revision(3), since the European Union is a common project that is constantly being renewed;
22. Calls on the EU institutions to put forward specific proposals to involve Union citizens once again in dialogue during the continuation of the constitutional process;
23. Invites its competent committee to consider the possible amendment of its Rules of Procedure so as to lend official character to the European Union flag and anthem chosen in the Constitutional Treaty in its activities and premises;
24. Instructs its President to forward this resolution, constituting its opinion on the convening of the IGC, to the Council, the Commission, the Heads of State or Government and parliaments of the Member States and the European Central Bank.
European Parliament legislative resolution of 11 July 2007 on the proposal for a directive of the European Parliament and of the Council amending Council Directive 78/855/EEC concerning mergers of public limited liability companies and Council Directive 82/891/EEC concerning the division of public limited companies as regards the requirement for an independent expert's report on the occasion of a merger or a division (COM(2007)0091 – C6-0082/2007 – 2007/0035(COD))
– having regard to the Commission proposal to the European Parliament and the Council (COM(2007)0091)(1),
– having regard to Article 251(2) and Article 44(2)(g) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0082/2007),
– having regard to Rule 51 of its Rules of Procedure,
– having regard to the report of the Committee on Legal Affairs (A6-0252/2007),
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.
Position of the European Parliament adopted at first reading on 11 July 2007 with a view to the adoption of Directive 2007/.../EC of the European Parliament and of the Council amending Council Directives 78/855/EEC and 82/891/EEC as regards the requirement of an independent expert's report on the occasion of merger or division of public limited liability companies
(As an agreement was reached between Parliament and Council, Parliament's position at first reading corresponds to the final legislative act, Directive 2007/63/EC.)
European Parliament legislative resolution of 11 July 2007 on the Council common position for adopting a decision of the European Parliament and of the Council establishing for the period 2007-2013 the Specific Programme "Civil Justice" as part of the General Programme "Fundamental Rights and Justice" (8699/2/2007 – C6-0179/2007 – 2005/0040(COD))
– having regard to the Council common position (8699/2/2007 – C6-0179/2007),
– having regard to its position at first reading(1) on the Commission proposal to Parliament and the Council (COM(2005)0122)(2),
– 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 Civil Liberties, Justice and Home Affairs (A6-0262/2007),
1. Approves the common position as amended;
2. Draws attention to the statement made by the Commission at the plenary sitting of 11 July 2007;
3. Instructs its President to forward its position to the Council and Commission.
Position of the European Parliament adopted at second reading on 11 July 2007 with a view to the adoption of Decision No .../2007/EC of the European Parliament and of the Council establishing for the period 2007-2013 the Specific Programme "Civil Justice" as part of the General Programme "Fundamental Rights and Justice"
(As an agreement was reached between Parliament and Council, Parliament's position at second reading corresponds to the final legislative act, Decision No 1149/2007/EC.)
European Parliament legislative resolution of 11 July 2007 on the proposal for a directive of the European Parliament and of the Council amending Directive 2000/60/EC establishing a framework for Community action in the field of water policy, as regards the implementing powers conferred on the Commission (COM(2006)0921 – C6-0032/2007 – 2006/0297(COD))
– having regard to the Commission proposal to the European Parliament and the Council (COM(2006)0921)(1),
– having regard to Article 251(2) and Article 175(1) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0032/2007),
– 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 (A6-0174/2007),
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 Commission.
Position of the European Parliament adopted at first reading on 11 July 2007 with a view to the adoption of Directive 2007/.../EC of the European Parliament and of the Council amending Directive 2000/60/EC establishing a framework for Community action in the field of water policy, as regards the implementing powers conferred on the Commission
(As an agreement was reached between Parliament and Council, Parliament's position at first reading corresponds to the final legislative act, Directive 2007/.../EC.)
European Parliament legislative resolution of 11 July 2007 on the proposal for a directive of the European Parliament and of the Council amending Directive 2000/53/EC on end-of-life vehicles, as regards the implementing powers conferred on the Commission (COM(2006)0922 – C6-0006/2007 – 2006/0287(COD))
– having regard to the Commission proposal to the European Parliament and the Council (COM(2006)0922)(1),
– having regard to Article 251(2) and Article 175(1) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0006/2007),
– 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 (A6-0186/2007),
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 Commission.
Position of the European Parliament adopted at first reading on 11 July 2007 with a view to the adoption of Directive 2007/.../EC of the European Parliament and of the Council amending Directive 2000/53/EC on end-of-life vehicles, as regards the implementing powers conferred on the Commission
(As an agreement was reached between Parliament and Council, Parliament's position at first reading corresponds to the final legislative act, Directive 2007/.../EC.)
European Parliament legislative resolution of 11 July 2007 on the proposal for a directive of the European Parliament and of the Council amending Directive 2002/96/EC on waste electrical and electronic equipment (WEEE), as regards the implementing powers conferred on the Commission (COM(2006)0914 – C6-0019/2007 – 2006/0302(COD))
– having regard to the Commission proposal to the European Parliament and the Council (COM(2006)0914)(1),
– having regard to Article 251(2) and Article 175(1) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0019/2007),
– 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 (A6-0188/2007),
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 Commission.
Position of the European Parliament adopted at first reading on 11 July 2007 with a view to the adoption of Directive 2007/.../EC of the European Parliament and of the Council amending Directive 2002/96/EC on waste electrical and electronic equipment (WEEE), as regards the implementing powers conferred on the Commission
(As an agreement was reached between Parliament and Council, Parliament's position at first reading corresponds to the final legislative act, Directive 2007/.../EC.)
European Parliament legislative resolution of 11 July 2007 on the proposal for a directive of the European Parliament and of the Council amending Directive 2002/95/EC on the restriction of the use of certain hazardous substances in electrical and electronic equipment, as regards the implementing powers conferred on the Commission (COM(2006)0915 – C6-0021/2007 – 2006/0303(COD))
– having regard to the Commission proposal to the European Parliament and the Council (COM(2006)0915)(1),
– having regard to Article 251(2) and Article 95 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0021/2007),
– 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 (A6-0187/2007),
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 Commission.
Position of the European Parliament adopted at first reading on 11 July 2007 with a view to the adoption of Directive 2007/.../EC of the European Parliament and of the Council amending Directive 2002/95/EC on the restriction of the use of certain hazardous substances in electrical and electronic equipment, as regards the implementing powers conferred on the Commission
(As an agreement was reached between Parliament and Council, Parliament's position at first reading corresponds to the final legislative act, Directive 2007/.../EC.)
European Parliament legislative resolution of 11 July 2007 on the proposal for a directive of the European Parliament and of the Council amending Directive 2005/32/EC establishing a framework for the setting of ecodesign requirements for energy-using products, and Council Directive 92/42/EEC and Directives 96/57/EC and 2000/55/EC of the European Parliament and of the Council, as regards the implementing powers conferred on the Commission (COM(2006)0907 – C6-0034/2007 – 2006/0291(COD))
– having regard to the Commission proposal to the European Parliament and the Council (COM(2006)0907),
– having regard to Article 251(2) and Article 95 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0034/2007),
– having regard to the annexed statement by the European Parliament, the Council and the Commission,
– 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 (A6-0222/2007),
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 Commission.
Position of the European Parliament adopted at first reading on 11 July 2007 with a view to the adoption of Directive 2007/.../EC of the European Parliament and of the Council amending Directive 2005/32/EC establishing a framework for the setting of ecodesign requirements for energy-using products, as well as Council Directive 92/42/EEC and Directives 96/57/EC and 2000/55/EC of the European Parliament and of the Council, as regards the implementing powers conferred on the Commission
(As an agreement was reached between Parliament and Council, Parliament's position at first reading corresponds to the final legislative act, Directive 2007/.../EC.)
European Parliament legislative resolution of 11 July 2007 on the proposal for a directive of the European Parliament and of the Council amending Directive 97/67/EC concerning the full accomplishment of the internal market of Community postal services (COM(2006)0594 – C6-0354/2006 – 2006/0196(COD))
– having regard to the Commission proposal to the European Parliament and the Council (COM(2006)0594)(1),
– having regard to Article 251(2) and Articles 47(2), 55 and 95 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0354/2006),
– having regard to Rule 51 of its Rules of Procedure,
– having regard to the report of the Committee on Transport and Tourism and the opinions of the Committee on Economic and Monetary Affairs, the Committee on Employment and Social Affairs, the Committee on Industry, Research and Energy, the Committee on the Internal Market and Consumer Protection and the Committee on Regional Development (A6-0246/2007),
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 Commission.
Position of the European Parliament adopted at first reading on 11 July 2007 with a view to the adoption of Directive 2007/…/EC of the European Parliament and of the Council amending Directive 97/67/EC concerning the full accomplishment of the internal market of Community postal services
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), Article 55 and Article 95 thereof,
Having regard to the proposal from the Commission ║,
Having regard to the opinion of the European Economic and Social Committee(2),
Having regard to the opinion of the Committee of the Regions(3),
Acting in accordance with the procedure laid down in Article 251 of the Treaty(4),
Whereas:
(1) The Council in its Resolution of 7 February 1994 on the development of Community Postal Services(5) identified as one of the main objectives of Community postal policy the reconciling of the gradual, controlled opening to competition of the postal market with a sustainable guarantee of ║ universal service provision.
(2) Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service(6), established a regulatory framework for the postal sector at Community level, including measures to guarantee a universal service and the setting of maximum limits for the postal services which Member States may reserve to their universal service provider(s) with a view to the maintenance of the universal service, to be reduced in a gradual and progressive way, and a timetable for decision-making on the further opening of the market to competition, for the purposes of creating a single market in postal services.
(3) Article 16 of the ║ Treaty highlights the place occupied by services of general economic interest in the shared values of the European Union as well as their role in promoting social and territorial cohesion. It states that care should be taken that such services operate on the basis of principles and conditions which enable them to fulfil their missions.
(4)The positive role played by services of general economic interest was emphasised by Special Eurobarometer 219 of October 2005 which indicated that postal services are the most appreciated services of general economic interest according to users throughout the EU, with 77 % of people questioned responding positively.
(5)Since they constitute an essential instrument for communication and information exchange, postal services fulfil a vital role which contributes to the objectives of social, economic and territorial cohesion in the EU.
(6) The measures in this area should be designed in such a way that the tasks of the Community pursuant to Article 2 of the ║Treaty, namely ║ to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States, are achieved as objectives.
(7)European postal markets have undergone dramatic changes in recent years, a development that has been propelled by technological advancements and increased competition resulting from deregulation. Due to globalisation, it is essential to take a pro-active, pro-development stance so as not to deprive EU citizens of the benefits of such changes.
(8) In its Conclusions concerning the mid-term review of the Lisbon Strategy the European Council of 22 and 23 March 2005 re-stated the importance of completing the internal market as an instrument to foster growth and create more and better jobs and the important role that effective services of general economic interest have to play in a competitive and dynamic economy. These conclusions remain applicable to postal services, as an essential instrument of communication, trade, and social and territorial cohesion.
(9) The European Parliament Resolution of 2 February 2006 on the application of the Postal Directive(7) highlighted the social and economic importance of efficient postal services and their important role in the framework of the Lisbon Strategy, indicating that reform measures undertaken so far have brought about significant positive developments in the postal sector, along with increased quality, more efficiency and better customer-orientation. In its resolution, the European Parliament called on the Commission, in view of the sometimes perceptibly divergent developments in universal service obligations in the Member States, to concentrate in particular, when drawing up its prospective study, on the quality of the universal service provided and on its future funding and to propose, in the context of that study, a definition, scope and appropriate financing for the universal service. It also noted that postal networks have irreplaceable territorial and social dimensions which make universal access to essential local services possible.
(10) In accordance with Directive 97/67/EC, a prospective study assessing, for each Member State, the impact on the universal service of the full accomplishment of the internal market for postal services in 2009 has been carried out. The Commission has also undertaken a thorough review of the Community postal sector, including the commissioning of studies on the economic, social and technological developments in the sector, and has consulted extensively with interested parties.
(11) █The prospective study claims that the basic aim of safeguarding the sustainable provision of a universal service matching the standard of quality defined by the Member States in accordance with Directive 97/67/EC, can be secured throughout the Community by 2009 without the need for a reserved area.
(12) The progressive and gradual opening of postal markets to competition has provided universal service providers with sufficient time to put in place the necessary modernisation and restructuring measures required to ensure their long-term viability under ║ new market conditions, and has enabled Member States to adapt their regulatory systems to a more open environment. Member States may furthermore avail themselves of the opportunity offered by the period of transposition, as well as the substantial time necessary for the introduction of effective competition, in order to proceed with further modernisation and restructuring of the universal service providers as necessary.
(13) The prospective study shows that the reserved area should no longer be the preferred solution for the financing of the universal service. This assessment takes into account the interest of the Community and its Member States in the accomplishment of the internal market and its potential for delivering growth and employment, as well as ensuring the availability of an efficient service of general economic interest for all users. █
(14) There are a number of drivers of change within the postal sector, notably demand and changing customer needs, organisational change, automation and the introduction of new technologies, substitution by electronic means of communication and market opening. In order to meet competition, cope with new consumer requirements and secure new sources of funding, postal service providers may diversify their activities by providing electronic business services or other information society services.
(15)Postal service providers, including the designated universal service providers, are being spurred on to improve efficiency as a result of new competitive challenges which differ from the traditional postal services (such as digitalisation and electronic communications) and this will in itself contribute to a major increase in competitiveness.
(16) The progressive opening up of the market can, if carefully prepared, help to expand the overall size of the postal markets; it can further contribute, under conditions ensuring competitive neutrality, to maintaining sustainable and quality employment within universal service providers as well as to facilitating the creation of new jobs in other operators, new entrants and associated economic activities. This Directive is without prejudice to the competence of Member States to regulate employment conditions in the postal services sector which should not, however, lead to unfair competition. Social considerations, with particular regard to staff previously engaged in the provision of postal services, should be taken into due account when preparing the opening up of the postal market.
(17) Increased competitiveness should furthermore enable the postal sector to be integrated with alternative methods of communication and allow the quality of the service provided to ever-more demanding users to be improved. Further market opening will continue to benefit consumers and small and medium-sized enterprises in particular, both as senders and as recipients of mail, by bringing about an improvement in quality, wider choice, passed-on price reductions, innovative services and business models. The postal market of today forms part of a larger market for messages, including electronic messages, which should be taken into consideration when evaluating the market.
(18)The rural postal network in, inter alia, mountain and island regions, plays an essential role in integrating businesses into the national/global economy and in maintaining cohesion in social and employment terms. Furthermore, rural post offices in mountain and island regions can provide an essential infrastructure network for universal access to new telecommunications technologies.
(19) The developments in the neighbouring communications markets have had a varied impact in different regions of the Community and segments of the population and on the use of postal services. Territorial and social cohesion should be maintained ║ and, taking into account that Member States may adapt some specific service features to accommodate local demand by applying flexibility provided for in Directive 97/67/EC, it is appropriate to fully maintain the universal service and the associated quality requirements set out in the said Directive. In order to ensure that market opening continues to benefit all users, in particular consumers and small and medium-sized enterprises, Member States must monitor and supervise market developments. They must take appropriate regulatory measures, available under the Directive, to ensure that accessibility to postal services continues to satisfy the needs of users including, by ensuring, where appropriate, a minimum number of services at the same access point and, in particular, that there is no decline in the density of access points to postal services in rural and remote regions. At the same time, the Member States should introduce and enforce appropriate penalties for service providers in the event of non-compliance with their obligations.
(20)The universal service assured by Directive 97/67/EC guarantees one clearance and one delivery to the home or premises of every natural or legal person every working day, even in remote or sparsely populated areas.
(21)The term 'users' includes individual consumers and commercial entities using universal services, unless otherwise stated in Directive 97/67/EC.
(22)The provision of high-quality postal services contributes significantly to attaining the objective of social and territorial cohesion. E-commerce, in particular, offers new opportunities for remote and sparsely populated areas to participate in economic life for which the provision of good postal services is an important precondition.
(23) Directive 97/67/EC established a preference for the provision of the universal service through the designation of universal service providers. The development of greater competition and choice means that Member States should be given further flexibility to determine the most efficient and appropriate mechanism to guarantee the availability of the universal service, while respecting the principles of objectivity, transparency, non-discrimination, proportionality and least market distortion necessary to ensure the free provision of postal services in the internal market. Member States may apply one or a combination of the following: the provision of the universal service according to market forces, the designation of one or several undertakings to provide different elements of the universal service or to cover different parts of the national territory and public procurement of services. In the event that a Member State decides to designate one or more undertakings for the provision of the universal service, or for the provision of the various components of the universal service, it must be ensured that the quality requirements of the universal service are also complied with by other universal service providers.
(24) It is important for users to be fully informed of the universal services provided and for undertakings providing postal services to be informed about the rights and obligations of universal service provider(s). Member States shall ensure that consumers remain fully informed of the features and of accessibility to the specific services provided. National regulatory authorities should monitor that all such information is made available. It is however appropriate, in line with the enhanced flexibility of Member States to ensure the provision of the universal service in ways other than the designation of the universal service provider(s), to allow Member States flexibility to decide how this information is to be made available to the public.
(25) In the light of the studies carried out and with a view to unlocking the full potential of the internal market for postal services, it is appropriate to end the use of the reserved area and special rights as a way of ensuring the financing of the universal service. In view of the situation in Member States it is appropriate to establish the end of 2010 as the final date for the removal of exclusive rights in the postal sector.
(26) The external financing of the residual net costs of the universal service may still be necessary for some Member States. It is therefore appropriate to explicitly clarify the alternatives available in order to ensure the financing of the universal service, to the extent that this is needed and is adequately justified, while leaving Member States the choice of the financing mechanisms to be used. These alternatives include the use of public procurement procedures, including directly negotiated procedures, and, whenever universal service obligations entail net costs of universal service and represent an unfair burden for the designated undertaking, public compensation and cost sharing between service providers and/or users in a transparent fashion by means of contributions to a compensation fund. Member States may use other means of financing permitted by Community law, such as deciding that the profits accruing from other activities of the universal service providers, outside the scope of the universal service, are to be assigned in whole or in part to the financing of the net costs of the universal service, as long as they are compatible with Directive 97/67/EC. Without prejudice to the obligation of Member States to uphold the rules of the Treaty applicable to state aid, Member States should notify the Commission of their plans as regards the financing of any net costs of the universal service, which should be reflected in the regular report that the Commission presents to the European Parliament and the Council on the application of Directive 97/67/EC.
(27) Undertakings offering services which are substitutable for the universal service should be required to contribute to the financing of the universal service in cases where provision is made for a compensation fund. In order to determine which undertakings are concerned, Member States should consider whether the services provided by such undertakings may, from a user's perspective, be regarded as substitutable for universal services, taking into account the characteristics of the services, including added value features, and their intended use. In order to be considered substitutable, the services do not necessarily have to cover all the features of the universal service, such as daily delivery or complete national coverage, provided that they cover at least one of the features of the services provided under the universal service; express and courier services are not considered as services that are substitutable for the universal service. In order to comply with the principle of proportionality when determining the contribution to the costs of providing the universal service in a Member State requested from these undertakings, Member States should use transparent and non-discriminatory criteria. █
(28) The principles of transparency, non-discrimination and proportionality provided for in Directive 97/67/EC must continue to be applied to any financing mechanism and any decision in this area must be based on transparent, objective and verifiable criteria. In particular, the net cost of the universal service is to be calculated, under the responsibility of the national regulatory authority, as the difference between the net costs for a designated undertaking operating under the universal service obligations and operating without the universal service obligations. The calculation shall take into account all other relevant elements, including any market benefits which accrue to an undertaking designated to provide the universal service, the entitlement to a reasonable profit and incentives for cost efficiency. In order to avoid legal uncertainty and to ensure a level playing field, the Commission should issue detailed guidance as to how the net cost of the universal service is to be calculated.
(29)It is appropriate to provide those Member States that have joined the postal reform process at a late stage, or Member States with a particularly difficult topography, especially those with a huge number of islands, with the possibility of an additional transitional period of two years for the removal of exclusive and special rights, subject to notification to the Commission. Taking into account this exceptional period, it is also appropriate, within a limited time frame and for a limited number of services, to allow those Member States that have completely opened up their markets to refuse monopolies operating in another Member State authorisation to operate in their own territory.
(30) Member States should be allowed to use general authorisations and individual licences whenever justified and proportionate to the objective pursued. However, as highlighted by the third Report on the Application of Directive 97/67/EC, further harmonisation of the conditions that may be introduced appears necessary in order to reduce unjustified barriers to the provision of services in the internal market. In this context, Member States may for example allow undertakings that provide services within the scope of the universal service, or services considered to be possible substitutes, to choose between the obligation to provide a service or to contribute financially to the costs of this service provided by another undertaking, but should no longer be allowed to impose the concurrent requirement to contribute to a sharing mechanism and the imposition of universal service or quality obligations that are intended to serve the same purpose. It is also appropriate to clarify that some of the provisions on general authorisations and individual licensing should not apply to designated universal service providers.
(31) In an environment where several postal undertakings provide services within the universal service area, it is appropriate to require all Member States to assess whether some elements of the postal infrastructure or certain services generally provided by universal service providers should be made accessible to other operators providing similar services, in order to promote effective competition, and/or protect users and consumers by ensuring the overall quality of the postal service. Where several universal service providers with regional postal networks exist, Member States should also assess and, where necessary, ensure their inter-operability in order to prevent impediments to the prompt transport of postal items. As the legal and market situation of these elements or services is different in Member States it is appropriate to only require Member States to adopt an informed decision on the need, extent and choice of the regulatory instrument, including where appropriate on cost sharing. This provision is without prejudice to the right of Member States to adopt measures to ensure access to the public postal network under conditions of transparency and non-discrimination.
(32) Given the importance of postal services for blind and partially sighted persons, it is appropriate to confirm that in a competitive and liberalised market there should be an obligation for Member States to ensure the provision of free services for blind and partially sighted persons. █
(33) In a highly competitive environment, it is important to ensure that universal service providers are given the pricing flexibility necessary to guarantee a financially viable universal service provision. It is, therefore, important to ensure that Member States only impose tariffs departing from the principle that prices reflect normal commercial demand and costs in limited cases. This objective is achieved by continuing to allow Member States to maintain uniform tariffs for single piece tariff mail, the service most frequently used by consumers and small and medium-sized enterprises. Individual Member States may also maintain uniform tariffs for some other mail items in order to protect general public interests, such as access to culture and regional and social cohesion. The principle of cost-oriented pricing should not prevent operators responsible for providing the universal service from applying uniform tariffs for services provided as part of that universal service.
(34)It is necessary for the provision, by universal service providers of services for businesses, bulk mailers and consolidators of mail from different customers, to be subject to more flexible tariff conditions.
█
(35) In view of the transition towards a fully competitive market and in order to ensure that cross-subsidies from universal services to non-universal services do not adversely affect the competitive advantage of the latter, it is appropriate to continue to require Member States to maintain the obligation on universal service providers of keeping separate and transparent accounts, subject to the necessary adaptations. This obligation should provide national regulatory authorities, competition authorities and the Commission with the information necessary to adopt decisions related to the universal service and to monitor fair market conditions until competition becomes effective. Cooperation between national regulatory authorities in continuing to develop benchmarks and guidelines in this area ║ should contribute to the harmonised application of these rules.
(36) In line with existing rules in other service areas and in order to enhance consumer protection, it is appropriate to extend the application of minimum principles concerning complaint procedures beyond universal service providers. With a view to increasing the effectiveness of complaint handling procedures, it is appropriate that ║ Directive 97/67/EC encourage the use of out-of-court settlement procedures as 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(8) and Commission Recommendation 2001/310/EC of 4 April 2001 on the principle for out-of-court bodies involved in the consensual resolution of consumer disputes(9). Consumer interests would also be furthered through ║ enhanced inter-operability between operators resulting from access to certain elements of infrastructure and services, and the requirement for cooperation between national regulatory authorities and consumer protection bodies. In order to protect the interests of postal users in the event of theft or loss of, or damage to, postal items, Member States should introduce a system of reimbursement and/or compensation.
(37) It is appropriate to amend the provision concerning implementing powers so as to reflect the amendments made to Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(10).
(38)The committee assisting with the implementation of Directive 97/67/EC should monitor the development of measures taken by the Member States to guarantee the universal service, and in particular the current and foreseeable effects of such measures on social and territorial cohesion. Given the particular importance that the opening up of the market in postal services has in terms of regional cohesion, that committee should comprise representatives not only of the Member States but also of local and regional authorities of every Member State.
(39) The role of national regulatory authorities is likely to remain crucial, in particular in those Member States where the transition to competition still needs to be completed. In accordance with the principle of separation of regulatory and operational functions, Member States should guarantee the independence of the national regulatory authorities thereby ensuring the impartiality of their decisions. This requirement of independence is without prejudice to the institutional autonomy and constitutional obligations of the Member States and to the principle of neutrality with regard to the rules in Member States governing the system of property or ownership laid down in Article 295 of the Treaty. National regulatory authorities should be endowed with all necessary resources, in terms of staffing, expertise and financial means, for the performance of their tasks.
(40) Due to the frequent involvement of different national bodies in the exercise of regulatory and operational functions, it is appropriate to introduce transparency in the allocation of tasks and require the different responsible bodies in charge of sector regulation, the application of competition rules and consumer issues to cooperate in order to ensure the effective accomplishment of their tasks.
(41) Any party that is the subject of a decision by a national regulatory authority should have the right to appeal to a body that is independent of that authority. This body may be a court. This appeal procedure is without prejudice to the division of competences within national judicial systems and to the rights of legal entities or natural persons under national law. Pending the conclusion of these procedures there is a need to ensure the temporary standing of national regulatory authorities' decisions in order to guarantee legal and market certainty.
(42) National regulatory authorities should █ coordinate their actions with the regulatory bodies of other Member States and with the Commission when carrying out their tasks under Directive 97/67/EC. This would promote the development of the internal market for postal services and help to achieve consistent application, in all Member States, of the provisions set out in the Directive, in particular in areas where national law implementing Community law gives national regulatory authorities considerable discretionary powers in the application of the relevant rules. This cooperation could take place, inter alia, in the Committee established by the Directive or in a group comprising European regulators. Member States should decide which bodies are national regulatory authorities for the purposes of the Directive.
(43) National regulatory authorities need to gather information from market players in order to carry out their tasks effectively. Requests for information should be proportionate and not impose an undue burden on undertakings. Such information may also need to be gathered by the Commission in order to allow it to fulfil its obligations under Community law.
(44) In order to keep the European Parliament and the Council informed of the development of the internal market for postal services, the Commission should regularly submit reports to those institutions on the application of Directive 97/67/EC.
(45)The Commission should provide assistance to the Member States on the different aspects of the implementation of this Directive.
(46)This Directive does not affect the terms and conditions of employment, including maximum work periods and minimum rest periods, minimum paid annual holidays, minimum rates of pay as well as health, safety and hygiene at work, which Member States apply in compliance with Community law, nor does it affect relations between social partners, including the right to negotiate and conclude collective agreements, the right to strike and to take industrial action in accordance with national law and practices which are in conformity with Community law, nor does it apply to services provided by temporary work agencies. If appropriate, Member States may reflect working conditions in their authorisation procedures.
(47)Member States should ensure that sufficient points of contact and access points are established that take account of the needs of users in rural and sparsely populated areas. Member States should determine the minimum number of points of contact and access points in these areas in order that the universal service can be guaranteed.
(48) In order to confirm the framework for the regulation of the sector the date of expiry of Directive 97/67/EC should be deleted. The provisions that have not been amended by this Directive should continue to apply. The services that Member States may continue to reserve, during a transitional period, are those specified in Article 7a of Directive 97/67/EC.
(49) Since the objectives of the proposed action, namely achieving an internal market for postal services, safeguarding a common level of universal service for all users and setting harmonised principles for the regulation of postal services, cannot be sufficiently achieved by Member States acting alone and can therefore by reason of the scale and effects of the action to be taken, be better achieved at Community level, the Community may adopt measures in accordance with the principles 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 those objectives.
(50) Directive 97/67/EC should therefore be amended accordingly.
(51) This Directive is consistent with other current Community instruments concerning services. If this Directive comes into conflict with a provision of another Community instrument, in particular Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market(11), the present Directive and its provisions shall prevail and fully apply to the postal sector.
(52) This Directive is without prejudice to the application of the Treaty rules on competition and on the freedom to provide services. Insofar as financing mechanisms would involve aid granted by a Member State or through state aid resources in any form whatsoever within the meaning of Article 87(1) of the Treaty, this Directive is without prejudice to the obligation of Member States to uphold the State aid rules of the Treaty,
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Directive 97/67/EC is hereby amended as follows:
(1) In Article 1, the second indent shall be replaced by the following:
"
-
the conditions governing the provision of postal services,
"
(2) Article 2 shall be amended as follows,
a)
point 6 shall be replaced by the following:"
6.
postal item: an item addressed in the final form in which it is to be carried by a postal service provider. In addition to items of correspondence, such items also include for instance books, catalogues, newspapers, periodicals and postal packages containing merchandise with or without commercial value;
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b) point 19, paragraph 1, shall be replaced by the following: 19. essential requirements: general non-economic reasons which can induce a Member State to impose conditions on the supply of postal services. These reasons are the confidentiality of correspondence, security of the network as regards the transport of dangerous goods and respect for the terms and conditions of employment and social security schemes, laid down by law, regulation or administrative provision and/or by collective agreement negotiated between national social partners and, where justified, data protection, environmental protection and regional planning."
c)
the following point shall be added:"
20.
services provided at single piece tariff: postal services for which the tariff is set in the general terms and conditions of universal service providers for the transport of individual postal items.
"
(3) In the first subparagraph of Article 3(3), the introductory wording shall be replaced by the following:
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3.Member States shall take steps to ensure that the universal service is guaranteed every working day and not less than five days a week, save in circumstances or geographical conditions deemed exceptional by the national regulatory authorities, and that it includes as a minimum:
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(4) Article 4 shall be replaced by the following:
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Article 4
1. Each Member State shall ensure that the provision of the universal service is guaranteed and shall notify the Commission of the steps it has taken to fulfil this obligation. The Committee established under Article 21 shall be informed of, and monitor, the development of the measures established by Member States in order to ensure the provision of the universal service.
2. Member States may choose to designate one or more undertakings as universal service providers for a part or all of the national territory and for different elements of the universal service. When they do so, they shall determine, in accordance with Community law, the obligations and rights assigned to them and shall publish these obligations and rights. In particular, Member States shall take measures to ensure that the conditions under which universal services are entrusted are based on objective, non-discriminatory, proportionate and least market distortion principles, and that the designation of undertakings as universal service providers is limited in time. Member States shall notify the identity of the universal service provider(s) they designate to the Commission.
"
(5) In Article 5(2), "Articles 36 and 56" shall be replaced by "Articles 30 and 46".
(6) Article 6 shall be replaced by the following:
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Article 6
Member States shall take steps to ensure that users and undertakings providing postal services are regularly given sufficiently detailed and up-to-date information by the universal service provider(s) regarding the particular features of the universal services offered, with special reference to the general conditions of access to these services as well as to prices and quality standard levels. This information shall be published in an appropriate manner.
Member States shall notify the Commission of how the information to be published in accordance with the first paragraph is being made available.
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(7) In Chapter 3, the title shall be replaced by the following:
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CHAPTER 3
Guaranteed financing of universal services
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(8) Article 7 shall be replaced by the following:
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Article 7
1. With effect from 31 December 2010 Member States shall not grant or maintain in force exclusive or special rights for the establishment and the provision of postal services. Member States may finance the provision of universal services in accordance with one or more of the means provided for in paragraphs 3, 4 and 5, or in accordance with any other means compatible with the ║Treaty.
2.Each Member State shall ensure that the financing of the universal service is guaranteed at all times in a fully liberalised postal market. Each Member State shall notify the Commission of the steps it intends to take in order to fulfil this obligation.
3. Member States may ensure the provision of the universal services by procuring such services in accordance with applicable public procurement rules and regulations, including the possibility of directly negotiating and concluding service contracts with service providers.
4. Where a Member State determines that the universal service obligations, as provided for by this Directive, entail a net cost and represent an unfair financial burden for the universal service provider(s), it shall put into operation one of the mechanisms detailed in its national plan notified to the Commission by 1 January 2010 and which formed part of the Commission's report to the European Parliament and the Council.
The national plans may:
a)
introduce a mechanism to compensate the undertaking(s) concerned from public funds;
b)
introduce a mechanism for the sharing of the net cost of universal service obligations between providers of services and/or users.
5. Where the net cost is shared under paragraph 4(b), Member States may establish a compensation fund which may be funded by service providers' and/or users' fees, and which is to be administered for this purpose by a body independent of the beneficiary or beneficiaries. Member States may make the granting of authorisations to service providers under Article 9(2) subject to an obligation to make a financial contribution to that fund or to comply with universal service obligations. Only those services set out in Article 3 may be financed in this way.
6. Member States shall ensure that the principles of transparency, non-discrimination and proportionality are upheld when establishing the compensation fund and when fixing the level of the financial contributions referred to in paragraphs 4 and 5. Decisions taken under paragraphs 4 and 5 shall be based on objective and verifiable criteria and be made public.
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(9)The following Article 7a shall be inserted:
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Article 7a
To the extent necessary for ensuring the maintenance of the universal service, Member States that have acceded to the EU after the entry into force of Directive 2002/39/EC* or Member States with a small population and a limited geographical size, and therefore having specific characteristics that are particular to postal services, or Members States with a particularly difficult topography, especially those with a huge number of islands, may continue, until 31 December 2012, to reserve services to universal service provider(s) within the following limits and conditions:
a)
those services shall be limited to the clearance, sorting, transport and delivery of items of domestic correspondence and incoming cross-border correspondence, whether by accelerated delivery or not, within both of the following weight and price limits. The weight limit shall be 50 grams. This weight limit shall not apply if the price is equal to, or more than, two and a half times the public tariff for an item of correspondence in the first weight step of the fastest category.
To the extent necessary to ensure the provision of the universal service, direct mail may continue to be reserved within the same weight and price limits.
To the extent necessary to ensure the provision of the universal service, for example when certain sectors of postal activity have already been liberalised or because of the specific characteristics particular to the postal services in a Member State, outgoing cross-border mail may continue to be reserved within the same weight and price limits.
(b)
Member States that intend to use this exceptional transition facility shall notify the Commission of their intention to do so three months before the date laid down in Article 2(1) of Directive ... [amending Directive 97/67/EC concerning the full accomplishment of the internal market of Community postal services].
(c)
Member States that abolish their reserved areas after ...(12) and before 31 December 2012 may, during that transitional period, refuse to grant the authorisation provided for in Article 9(2) for services within the abolished reserved area in question to postal operators providing services within the scope of the universal service, and to companies controlled by them, which are granted a reserved area in another Member State.
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* OJ L 176, 5.7.2002, p. 21
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(10)Article 8 shall be replaced by the following:
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Article 8
The provisions of Article 7 shall be without prejudice to the right of Member States to:
–
incorporate special provisions into their national legislation applicable to universal service providers, according to objective, proportionate and non-discriminatory criteria, as necessary for the operation of the universal service;
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organise, in accordance with their national legislation, the siting of letter boxes on the public highway, the issue of postage stamps and the registered mail service used in the course of judicial or administrative procedures, as necessary for the provision of the universal service.
"
(11) In Chapter 4, the title shall be replaced by the following:
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CHAPTER 4
Conditions governing the provision of postal services and access to the network
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(12) Article 9 shall be replaced by the following:
"
Article 9
1. For services which are outside the scope of the universal service as defined in Article 3, Member States may introduce general authorisations to the extent necessary in order to guarantee compliance with the essential requirements.
2. For services which are within the scope of the universal service as defined in Article 3, and for services considered to be possible substitutes, Member States may introduce authorisation procedures, including individual licences, to the extent necessary in order to guarantee compliance with the essential requirements and to safeguard the universal service.
The granting of authorisations may:
–
where appropriate, be made subject to universal service obligations,
–
if necessary, impose requirements concerning the quality, availability and performance of the relevant services, even where they to some extent overlap with universal service obligations;
–
where appropriate, be subject to an obligation to make a financial contribution to the sharing mechanism referred to in Article 7, if the provision of the universal service entails a net cost to the universal service provider or providers designated in accordance with Article 4.
3.The granting of authorisations for service providers other than designated universal service providers may, where appropriate, be subject to an obligation to make a financial contribution to the sharing mechanism referred to in Article 7.
Member States may allow these undertakings to choose between an obligation to contribute to the sharing mechanism or to comply with universal service obligations.
Except in the case of undertakings that have been designated as universal service providers in accordance with Article 4, authorisations may not:
–
be limited in number,
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–
impose technical or operational conditions other than those necessary to fulfil the obligations of this Directive.
4. The procedures, obligations and requirements referred to in paragraphs 1 and 2 shall be transparent, accessible, non-discriminatory, proportionate, precise and unambiguous, made public in advance and based on objective criteria. Member States shall ensure that the reasons for refusing an authorisation in whole or in part are communicated to the applicant and must establish an appeal procedure.
5.Member States shall request all operators to fully respect the labour laws to which they are subject, that is any legal or contractual provision concerning employment conditions, working conditions, including health and safety at work and the relationship between employers and workers, which Member States apply in accordance with national law which respects Community law. Equally, Member States shall request the selected operator to fully respect the social security legislation to which it is subject and collective agreements concluded between social partners.
"
(13) Paragraph 1 of Article 10 shall be replaced by the following:
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1. The European Parliament and the Council, acting on a proposal from the Commission and on the basis of Articles 47(2), 55 and 95 of the Treaty, shall adopt the measures necessary for the harmonisation of the procedures referred to in Article 9 governing the commercial provision of postal services to the public.
"
(14) In Article 11, "Articles 57(2), 66 and 100a" shall be replaced by "Articles 47(2), 55 and 95".
(15) The following Articles 11a and 11bshall be inserted:
"
Article 11a
Whenever necessary to protect the interest of users and/or to promote effective competition, and in the light of national conditions, Member States shall ensure that transparent and non-discriminatory access conditions are available to the following elements of postal infrastructure or services: postcode system, address database, post office boxes, collection and delivery boxes, information on change of address, re-direction service, return to sender service.
Article 11b
This Directive is without prejudice to relevant national provisions on the protection of personal data, and without prejudice to the rights of Member States to adopt measures to ensure, where appropriate, access to the postal network of universal service providers or other elements of the postal infrastructure under conditions of transparency and non-discrimination.
"
(16) Article 12 shall be replaced by the following:
"
Article 12
Member States shall take steps to ensure that the tariffs for each of the services forming part of the provision of the universal service comply with the following principles:
–
prices must be affordable and must be such that all users, independent of geographical location, and, in light of specific national conditions, have access to the services provided. Member States shall publish the rules and criteria for ensuring affordability at national level. National regulatory authorities shall monitor all price changes and shall publish regular reports. Member States shall ensure the provision of a free postal service for blind and partially sighted persons,
–
█ whenever necessary for reasons relating to the public interest, Member States may decide that a uniform tariff should be applied throughout their national territory and/or to the territories of other Member States, only to services provided at single piece tariff █,
–
the application of a uniform tariff does not exclude the right of the universal service provider(s) to conclude individual agreements on prices with customers,
–
tariffs must be transparent and non-discriminatory,
–
whenever universal service providers apply special tariffs, for example for services for businesses, bulk mailers or consolidators of mail from different customers, they shall apply the principles of transparency and non-discrimination with regard both to the tariffs and to the associated conditions. The tariffs shall take account of the avoided costs, as compared to the standard service covering the complete range of features offered for the clearance, transport, sorting and delivery of individual postal items and, together with the associated conditions, shall apply equally both as between different third parties and as between third parties and universal service providers supplying equivalent services. Any such tariffs shall also be available to any other customer, in particular individual customers and small and medium-sized enterprises, who post under similar conditions.
"
(17) Article 14 shall be replaced by the following:
"
Article 14
1. Member States shall take the measures necessary to ensure that the accounting of the universal service providers is conducted in accordance with the provisions of this Article.
2. The universal service providers shall keep separate accounts within their internal accounting systems in order to clearly distinguish between services and products which are part of the universal service and receive or contribute to the financial compensation for the net costs of the universal service on the one hand, and, on the other hand, the services and products which are not. █Such internal accounting systems shall operate on the basis of consistently applied and objectively justifiable cost accounting principles.
3. The accounting systems referred to in paragraph 2 shall, without prejudice to paragraph 4, allocate costs in the following manner:
a)
costs which can be directly assigned to a particular service or product shall be so assigned;
b)
common costs, that is costs which cannot be directly assigned to a particular service or product, shall be allocated as follows:
i)
whenever possible, common costs shall be allocated on the basis of a direct analysis of the origin of the costs themselves;
ii)
when a direct analysis is not possible, common cost categories shall be allocated on the basis of an indirect linkage to another cost category or group of cost categories for which a direct assignment or allocation is possible; the indirect linkage shall be based on comparable cost structures;
iii)
when neither direct nor indirect measures of cost allocation can be found, the cost category shall be allocated on the basis of a general allocator computed by using the ratio of all expenses directly or indirectly assigned or allocated, on the one hand, to each of the universal services and, on the other hand, to the other services;
iv)
common costs, which are necessary for the provision of both universal services and non-universal services, shall not be entirely allocated to universal services; the same cost drivers must be applied to both universal services and non-universal services.
4. Other cost accounting systems may be applied only if they are compatible with paragraph 2 and have been approved by the national regulatory authority. The Commission shall be informed prior to their application.
5. National regulatory authorities shall ensure that compliance with one of the cost accounting systems described in paragraphs 3 or 4 is verified by a competent body which is independent of the universal service provider. Member States shall ensure that a statement concerning compliance is published periodically.
6. The national regulatory authority shall keep available, to an adequate level of detail, information on the cost accounting systems applied by a universal service provider, and shall submit such information to the Commission on request.
7. On request, detailed accounting information arising from these systems shall be made available in confidence to the national regulatory authority and to the Commission, in accordance with Article 22a.
8. Where a given Member State has not established a financing mechanism for universal service provision, as permitted under Article 7, and where the national regulatory authority is satisfied that none of the designated universal service providers in that Member State is in receipt of State assistance, hidden or otherwise, and that competition in the market is fully effective, the national regulatory authority may decide not to apply the requirements of this Article. This Article shall, however, apply to incumbent universal service providers so long as no other universal service providers have been appointed. The national regulatory authority shall inform the Commission in advance of taking any such decision.
"
(18) Article 19 shall be replaced by the following:
"
Article 19
1. Member States shall ensure that transparent, simple and inexpensive procedures are made available by all undertakings providing postal services for dealing with users' complaints, particularly in cases involving loss, theft, damage or non-compliance with service quality standards (including procedures for determining where responsibility lies in cases where more than one operator is involved).
2. Member States shall adopt measures to ensure that the procedures referred to in paragraph 1 enable disputes to be settled fairly and promptly with provision █ for a system of reimbursement and/or compensation.
3. Member States shall also encourage the development of independent out-of-court schemes for the resolution of disputes between undertakings providing postal services and consumers.
4. Without prejudice to other possibilities of appeal or means of redress under national and Community legislation, Member States shall ensure that users, acting individually or, where permitted by national law, jointly with organisations representing the interests of users and/or consumers, may bring before the competent national authority cases where users' complaints to undertakings providing services within the scope of the universal service have not been satisfactorily resolved.
5. In accordance with Article 16, Member States shall ensure that the universal service providers and, where appropriate, undertakings providing services within the scope of the universal service, publish, together with the annual report on the monitoring of their performance, information on the number of complaints and the manner in which they have been dealt with.
"
(19) Article 21 shall be replaced by the following:
"
"Article 21
1. The Commission shall be assisted by a committee.
2. Where reference is made to this Article, Article 5a(1) to (4) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
"
║
(20) Article 22 shall be replaced by the following:
"
Article 22
1. Each Member State shall designate one or more national regulatory authorities for the postal sector that are legally separate from and operationally independent of the postal operators. Member States that retain ownership or control of undertakings providing postal services shall ensure effective structural separation of the regulatory functions from activities associated with ownership or control.
Member States shall inform the Commission which national regulatory authorities they have designated to carry out the tasks arising from this Directive. They shall publish the tasks to be undertaken by national regulatory authorities in an easily accessible form, in particular where those tasks are assigned to more than one body. Member States shall ensure, where appropriate, consultation and cooperation between those authorities and national authorities entrusted with the implementation of competition law and consumer law, on matters of common interest.
2. The national regulatory authorities shall be given the particular task of ensuring compliance with the obligations arising from this Directive, in particular by establishing monitoring and regulatory procedures in order to ensure the provision of the universal service. They may also be charged with ensuring compliance with the competition rules in the postal sector.
The national regulatory authorities of the Member States shall work in close collaboration and shall provide mutual assistance in order to facilitate the application of this Directive.
3. Member States shall ensure that effective mechanisms exist at national level under which any user or undertaking providing postal services ║ affected by a decision of a national regulatory authority has the right to appeal against the decision to an appeal body which is independent of the parties involved. Pending the outcome of any such appeal, the decision of the national regulatory authority shall stand, unless the appeal body decides otherwise.
"
(21) After Article 22, the following Chapter title shall be inserted:
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CHAPTER 9a
Provision of information
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(22) The following Article 22a shall be inserted:
"
Article 22a
1. Member States shall ensure that postal service providers provide all the information to the national regulatory authority, including financial information and information about the provision of the universal service, in order that national regulatory authorities ║ ensure conformity with the provisions of, or decisions made in accordance with, this Directive.
█
2. All undertakings shall, upon request, provide such information promptly and in confidence, where necessary, within the timescales and to the level of detail required by the national regulatory authority. The information requested by the national regulatory authority shall be proportionate to the performance of its tasks and it shall not be used for purposes other than those for which it was requested. The national regulatory authority shall give the reasons justifying its request for information.
"
(23) Article 23 shall be replaced by the following:
"
Article 23
Every four years, on the first occasion no later than 31 December 2011, the Commission shall submit a report to the European Parliament and the Council on the application of this Directive, including the appropriate information about developments in the sector, particularly concerning economic, social, employment patterns and technological aspects, as well as about the quality of service. The report shall be accompanied where appropriate by proposals to the European Parliament and the Council.
A separate report on general employment trends in the sector and on the working conditions applied by all operators in every Member State shall be submitted no later than three years from the date of the opening up of the market to competition. The report shall also give an account of measures adopted through legislation or negotiation between the social partners. If the report reveals distortions of competition, it shall, if appropriate, also make proposals.
"
(24)The following Article 23a shall be inserted:
"
Article 23a
The Commission shall provide assistance to the Member States on the implementation of this Directive, including guidance on the calculation of any net cost, before 1 January 2009. Member States shall present to the Commission their financing plans as referred to in Article 7(4) and may present studies.
"
(25) Article 26 shall be deleted.
(26) Article 27 shall be deleted.
Article 2
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 2009 at the latest. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied 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 fields covered by this Directive.
Article 3
This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.
European Parliament legislative resolution of 11 July 2007 on the proposal for a regulation of the European Parliament and of the Council on common rules for the operation of air transport services in the Community (recast) (COM(2006)0396 – C6-0248/2006 – 2006/0130(COD))
– having regard to the Commission proposal to the European Parliament and the Council (COM(2006)0396)(1),
– having regard to Article 251(2) and Article 80(2) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0248/2006),
– having regard to Rule 51 of its Rules of Procedure,
– having regard to the report of the Committee on Transport and Tourism (A6-0178/2007),
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. Requests the Commission to bring forward a legislative proposal to the European Parliament and the Council relating to the social and working conditions in the European aviation sector and, meanwhile, until the entry into force of such legislation, requests the air carriers to observe the rules on posting where their employees are concerned.
4. Instructs its President to forward its position to the Council and Commission.
Position of the European Parliament adopted at first reading on 11 July 2007 with a view to the adoption of Regulation (EC) No .../2007 of the European Parliament and of the Council on common rules for the operation of air transport services in the Community (recast)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,
Having regard to the proposal from the Commission║,
Having regard to the opinion of the European Economic and Social Committee(2),
Having regard to the opinion of the Committee of the Regions(3),
Acting in accordance with the procedure laid down in Article 251 of the Treaty(4),
Whereas:
(1) A number of substantial changes are to be made to Council Regulations (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers(5), (EEC) No 2408/92 of 23 July 1992 on access of Community air carriers to intra-Community air routes(6) and (EEC) No 2409/92 of 23 July 1992 on fares and rates for air services(7). In the interests of clarity, these Regulations should be recast and consolidated into one single Regulation.
(2) Through the adoption of those three Regulations air transport in the Community was liberalised. Despite the success of that liberalisation in terms of growth, competition and lower fares, the inconsistent application of those Regulations across the Member States distorts the functioning of the internal aviation market.
(3) In order to ensure a more efficient and consistent application of Community legislation for the internal aviation market, a series of adjustments to the current legal framework are required.
(4) Recognising the potential link between the financial health of an air carrier and safety, ║ more stringent monitoring of the financial situation of ║ air carriers should be established.
(5) Given the growing importance of air carriers with operational bases in several Member States and the need to ensure the efficient supervision of these air carriers, the same Member State should be responsible for overseeing activities carried out pursuant to the AOC (Air Operator's Certificate) and ║ the operating licence.
(6) In order to ensure the consistent monitoring of ║ compliance with the requirements of the operating licences of all Community air carriers, licensing authorities should carry out regular assessments of the air carriers" financial situation. Therefore, the latter should provide sufficient information on their financial situation, especially in the first two years of their existence as these are particularly critical for the survival of an air carrier on the market. In order to avoid a distortion of competition arising from the application of different rules at national level, it is necessary to ensure transparency and to submit the financial situation of all Community air carriers to the joint control of the Commission and Member States.
(7) In order to reduce risks to passengers, Community air carriers that fail║ to fulfil the requirements for maintaining a valid operating licence should not be allowed to continue operations. In such cases, the competent licensing authority should revoke or suspend the operating licence. In cases where the competent licensing authority fails to do so, the Commission should be allowed to revoke or suspend the operating licence in order to ensure the homogeneous application of Community legislation.
(8) In order to avoid ║ excessive recourse to lease agreements of aircraft registered in third countries, especially with crew (wet lease), such a possibility should only be allowed in exceptional circumstances, such as a lack of adequate aircraft on the Community market, be strictly limited in time and fulfil safety standards equivalent to the safety rules of Community legislation.
(9)With respect to employees of a Community air carrier operating air services from an operational base outside the territory of the Member State where that Community air carrier has its principal place of business, Member States should ensure the proper application of Community and national legislation in the social field.
(10) In order to ensure the safe and coherent functioning of the internal aviation market, it is desirable that the Community be responsible for negotiating intra-Community traffic rights with third countries. This would avoid possible inconsistencies between the internal market and individual negotiations by Member States.
(11) In order to complete the internal aviation market ║ existing restrictions applied between Member States, such as restrictions on ║ code sharing on routes to third countries or on ║ price setting on routes to third countries with an intermediate stop in another Member State (6th freedom flights), should be lifted.
(12) The conditions under which public service obligations may be imposed should be defined clearly and in an unambiguous way, while the associated tender procedures should allow a sufficient number of competitors to take part║. The Commission should be able to obtain as much information as is necessary in order to be able to assess the economic justifications for public service obligations in individual cases.
(13) The rules in force with regard to traffic distribution between airports serving a same city or conurbation should be clarified and simplified.
(14) It is appropriate to ensure that Member States have the possibility to react to sudden problems resulting from unforeseeable and unavoidable circumstances, which make it technically or practically very difficult to carry out air services.
(15) Passengers should have access to the same tariffs for the same flights irrespective of their place of residence within the Community or their nationality and irrespective of the place of establishment of the travel agents within the Community.
(16) Passengers should be able to effectively compare tariffs between airlines. Therefore, published tariffs should indicate the final price to be paid by the passenger, inclusive of all taxes, charges and fees.
(17) The measures necessary for the implementation of this regulation should 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(8).
(18) Since a more homogeneous application of ║ Community legislation with regard to the internal aviation market cannot be sufficiently achieved by the Member States because of the international character of air transport, 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 those objectives.
(19) It is therefore necessary to repeal Regulations (EEC) No 2407/92, 2408/92 and 2409/92,
HAVE ADOPTED THIS REGULATION:
Chapter I
General provisions
Article 1
Subject matter
1. This Regulation regulates the licensing of Community air carriers, the right of Community air carriers to operate air services within the Community, and the pricing of air services operated within the Community. Provisions on information and non-discrimination in pricing shall apply to flights departing from an airport situated in the territory of a Member State and to flights contracted by a Community air carrier departing from an airport located in a third country to an airport situated in the territory of a Member State, unless air carriers are subject to the same obligations in that third country.
2. The application of Chapter III of this Regulation to the airport of Gibraltar is understood to be without prejudice to the respective legal positions of the Kingdom of Spain and the United Kingdom with regard to the dispute over sovereignty over the territory in which the airport is situated.
3. Application of the provisions of Chapter III of this Regulation to Gibraltar airport shall be suspended until the arrangements in the joint declaration made by the Foreign ministers of the Kingdom of Spain and the United Kingdom on 2 December 1987 have come into operation. The Governments of Spain and the United Kingdom will so inform the Council on that date.
Article 2
Definitions
For the purposes of this Regulation, the following definitions shall apply:
1)
"operating licence' means an authorisation granted by the competent licensing authority to an undertaking, permitting it to carry by air passengers, mail and/or cargo, as stated in the operating licence, for remuneration and/or hire;
2)
"competent licensing authority" means an authority ║ entitled to grant, refuse, revoke or suspend an operating licence in accordance with Chapter II;
3)
"undertaking' means any natural or legal person, whether profit-making or not, or any official body whether it has its own legal personality or not;
4)
"air service' means a flight or a series of flights carrying passengers, cargo and/or mail for remuneration and/or hire;
5)
"flight' means a departure from a specified airport towards a specified destination airport;
6)
"airport' means any area in a Member State which is open for commercial air transport operations;
7)
"air operator's certificate (AOC)' means a certificate issued to an undertaking affirming that the operator in question has the professional ability and organisation to secure the safe operation of aircraft for the aviation activities specified in the certificate, as provided in the relevant provisions of Community law;
8)
"effective control' means a relationship constituted by rights, contracts or any other means which, either separately or jointly and having regard to the considerations of fact or law involved, confer the possibility of directly or indirectly exercising a decisive influence on an undertaking, in particular by:
a)
the right to use all or part of the assets of an undertaking;
b)
rights or contracts which confer a decisive influence on the composition, voting or decisions of the bodies of an undertaking or otherwise confer a decisive influence on the running of the business of the undertaking;
9)
"air carrier' means an air transport undertaking with a valid operating licence;
10)
"Community air carrier' means an air carrier with a valid operating licence granted by a competent licensing authority in accordance with Chapter II;
11)
"business plan' means a detailed description of the air carrier's intended commercial activities for the period in question, in particular in relation to the expected market development and the investments to be carried out, including the financial and economic implications of these activities;
(12)
"Intra-Community air service" means an air service operated within the Community;
(13)
"Transit" means the right to fly across the territory of the Community or of a third country without landing and to land for non-traffic purposes;
14)
"traffic right' means the right to operate an air service between two Community airports;
█
15)
"seat-only sales" means the sale of seats, without any other service bundled, such as accommodation, directly to the public by the air carrier or its authorised agent or a charterer;
16)
'scheduled air service' means a series of flights possessing all the following characteristics:
a)
it is performed by aircraft for the transport of passengers, cargo and/or mail for remuneration, in such a manner that on each flight seats are available for individual purchase by the public (either directly from the air carrier or from its authorised agents);
b)
it is operated so as to serve traffic between the same two or more airports, either:
–
according to a published timetable; or
–
with flights so regular or frequent that they constitute a recognisably systematic series;
17)
"capacity" means the number of seats offered to the general public on a scheduled air service over a given period;
18)
'air fares' means the prices expressed in euros or in local currency to be paid by passengers to air carriers or their agents for the carriage of those passengers and ║ their baggage on air services and any conditions under which those prices apply, including remuneration and conditions offered to agencies, and other auxiliary services █;
19)
"air rates" means the prices expressed in euros or in local currency to be paid for the carriage of cargo and the conditions under which those prices apply, including remuneration and conditions offered to agencies, and other auxiliary services █;
20)'Member State(s) concerned' means the Member State(s) between or within which an air service is operated;
21)'Member State(s) involved' means the Member State(s) concerned and the Member State(s) where the air carrier(s) operating the air service is (are) licensed;
(22)
"Conurbation" means an urban area comprising a number of cities or towns which, through population growth and expansion, have physically merged to form one continuous built up area;
23)
'management account' means a detailed statement of income and costs of an air carrier for the period in question including a breakdown between air-transport-related and other activities as well as between pecuniary and non-pecuniary elements;
24)
"dry lease agreement' means an agreement between air carriers pursuant to which an aircraft is operated under the AOC of the lessee;
25)
"wet lease agreement' means an agreement between air carriers pursuant to which an aircraft is operated under the AOC of the lessor;
26)
"principal place of business" means the place of the head office and, if any, the registered office of a Community air carrier in a Member State within, to or from which the Community air carrier carries out a significant part of its operational activities.
Chapter II
Operating licence
Article 3
Operating licence
1. No undertaking established in the Community shall be permitted to carry by air passengers, mail and/or cargo for remuneration and/or hire within the Community unless it has been granted the appropriate operating licence.
An undertaking meeting the requirements of this Chapter shall be entitled to receive an operating licence.
2. The competent licensing authority shall not grant operating licences where any of the requirements of this Chapter are not complied with.
3. Without prejudice to any other applicable provisions of Community, national, or international law the following categories of air services are not subject to the requirement to hold a valid operating licence:
a)
air services performed by non-power driven aircraft and/or ultralight power driven aircraft, and
b)
local flights not involving the carriage of passengers, mail and/or cargo between different airports.
Article 4
Conditions for granting an operating licence
An undertaking shall be granted an operating licence by the competent licensing authority provided that:
a)
its principal place of business is located in the Community and it operates the largest part of its air services within, to or from the Community;
b)
it holds a valid AOC;
c)
where the licence is applied for to the authority of a Member State, its principal place of business is located in that Member State █;
d)
it has one or more aircraft at its disposal as a result of ownership or a dry lease agreement;
e)
its main occupation is to operate air services in isolation or combined with any other commercial operation of aircraft or the repair and maintenance of aircraft;
f)
its company structure allows the competent licensing authority to implement the provisions of this Chapter;
(g)
Member States and/or nationals of Member States own more than 50 per cent of the undertaking and effectively control it, whether directly or indirectly through one or more intermediate undertakings, unless otherwise provided for in an agreement with a third country to which the Community is a party;
h)
it meets the financial conditions specified in Article 5;
i)
it complies with the insurance requirements specified in Article 11;
j)
it provides evidence that it has sufficient insurance cover to be able to refund sums paid and to cover the costs of repatriating passengers in the event of it being unable to operate booked flights because of insolvency or revocation of its operating licence.
Article 5
Financial conditions for granting an operating licence
1. The competent licensing authority shall closely assess whether an undertaking applying for the first time for an operating licence can demonstrate that:
a)
it can meet at any time its actual and potential obligations established under realistic assumptions, for a period of 36 months from the start of operations;
b)
it can meet its fixed and operational costs incurred by operations according to its business plan and established under realistic assumptions, for a period of three months from the start of operations, without taking into account any income from its operations; and
c)
its net capital is at least EUR 100 000.
2. For the purpose of paragraph 1, each applicant shall submit a business plan for, at least, the first three years of its operation. The business plan shall also detail the applicant's financial links with any other commercial activities in which the applicant is engaged either directly or through related undertakings. The applicant shall also provide all relevant information; in particular the data referred to in point 1 of Annex I. Each applicant shall establish provisions to avoid or mitigate the negative social consequences of insolvency.
3. Paragraphs 1 and 2 shall not apply to air carriers exclusively engaged in operations with aircraft of less than 10 tonnes MTOW (Maximum Take Off Weight) and/or less than 20 seats. Such air carriers shall at all times be able to demonstrate that their net capital is at least EUR 100 000 or to provide when required by the competent licensing authority the information relevant for the purposes of article 9(2).
A Member State may nevertheless apply paragraphs 1 and 2 to air carriers licensed by it that operate scheduled services or whose turnover exceeds EUR 3 million per year.
Article 6
Air operator's certificate
1. The granting and validity at any time of an operating licence shall be dependent upon the possession of a valid AOC specifying the activities covered by the operating licence and complying with the criteria established under relevant Community law.
2. Any modification in the AOC of a Community air carrier shall be reflected, where appropriate, in its operating licence.
3.Where the AOC is granted by a national authority, the competent authorities of that Member State shall be responsible for granting, refusing, revoking or suspending the AOC and the operating licence of a Community air carrier.
Article 7
Proof of good repute
1. Where, for the purpose of issuing an operating licence, proof is required that the persons who will continuously and effectively manage the operations of the undertaking are of good repute or that they have not been declared bankrupt, or for the purpose of suspending or revoking the operating licence in the event of serious professional misconduct or a criminal offence, the competent licensing authority shall accept as sufficient evidence in respect of nationals of Member States the production of documents issued by the competent authorities in the Member State of origin or the Member State where the person has his/her permanent residence showing that those requirements are met.
2. Where the Member State of origin or the Member State where the person has his/her permanent residence does not issue the documents referred to in paragraph 1, such documents shall be replaced by a declaration on oath - or, in Member States where there is no provision for declaration on oath - by a solemn declaration made by the person concerned before a competent judicial or administrative authority or, where appropriate, a notary or qualified professional body of the Member State of origin or the Member State where the person has his/her permanent residence; such authority, notary or qualified professional body shall issue a certificate attesting the authenticity of the declaration on oath or solemn declaration.
3. The competent licensing authority may require that the documents and certificates referred to in paragraphs 1 and 2 be presented no more than three months after their date of issue.
Article 8
Validity of an operating licence
1. An operating licence shall be valid as long as the Community air carrier complies with the requirements of this Chapter.
A Community air carrier shall at all times be able on request to demonstrate to the competent licensing authority that it meets all the requirements of this Chapter.
2. The competent licensing authority shall closely monitor ║ compliance with the requirements of this chapter. It shall in any case review ║ compliance with these requirements in the following cases:
a)
two years after a new operating licence has been granted, or
b)
when a potential problem has been suspected, or
c)
at the request of the Commission.
In the event that a competent licensing authority suspects that the financial problems of a Community air carrier might affect the safety of its operations, it will immediately inform the authority responsible for issuing the AOC.
3. The operating licence shall be resubmitted for approval when a Community air carrier:
a)
has not started operations within six months of the grant of an operating licence,
b)
has ceased its operations for more than six months.
4. A Community air carrier shall provide ║ the competent licensing authority every financial year with ║ audited accounts relating to the previous financial year within six months of the accounts closing date. During the first two years of operation of a Community air carrier, the data, as referred to in point 3 of Annex I, shall be updated and made available to the competent licensing authority on a six monthly basis.
The competent licensing authority may at any time assess the financial performance of a Community air carrier to which it has granted an operating licence by requesting the relevant information and, in particular, the data referred to in point 3 of Annex I.
5. A Community air carrier shall notify the competent licensing authority:
a)
in advance of any plans to operate new scheduled services or non-scheduled services to a continent or a world region not previously served, change the type or number of aircraft used or to substantially change the scale of its activities;
b)
in advance of any intended mergers or acquisitions, and
c)
within fourteen days of any change in the ownership of any single shareholding which represents 10% or more of the total shareholding of the Community air carrier or of its parent or ultimate holding company.
6. If the competent licensing authority deems the changes notified under paragraph 5 to have a significant bearing on the finances of the Community air carrier, it shall require the submission of a revised business plan incorporating the changes in question and covering, at least, a period of 12 months from its date of implementation as well as the data referred to in point 2 of Annex I, in addition to the information to be provided under paragraph 4.
The competent licensing authority shall take a decision on the revised business plan not later than three months after all the necessary information has been submitted to it.
7. In relation to Community air carriers licensed by it, the competent licensing authority shall decide whether the operating licence is to be resubmitted for approval in the event of change in one or more elements affecting the legal situation of the Community air carriers and, in particular, in the event of a merger or takeover.
8. Paragraphs 4, 5 and 6 shall not apply to air carriers exclusively engaged in operations with aircraft of less than 10 tonnes MTOW (Maximum Take Off Weight) and/or less than 20 seats. Such air carriers shall at all times be able to demonstrate that their net capital is at least EUR 100 000 or to provide when required by the competent licensing authority the information relevant for the purposes of Article 9(2).
A Member State may nevertheless apply paragraphs 4, 5 and 6 to air carriers licensed by it that operate scheduled services or whose turnover exceeds EUR 3 million per year.
Article 9
Suspension and revocation of an operating licence
1. The competent licensing authority shall suspend or revoke the operating licence if there are reasonable grounds for suspecting that the Community air carrier cannot meet its actual and potential obligations for a 12-month period.
The competent licensing authority may grant a temporary licence, not exceeding 12 months, pending financial reorganisation of the Community air carrier provided that safety is not at risk, that this temporary licence reflects any changes to the AOC and that there is a realistic prospect of a satisfactory financial reconstruction within that time period.
2. Whenever there are clear indications that financial problems exist, or when insolvency or similar proceedings are opened against a Community air carrier licensed by it, the competent licensing authority shall without delay carry out an in depth assessment of the financial situation and, on the basis of its findings, review the status of the operating licence in compliance with this article within a time period of three months.
The competent licensing authority shall inform the Commission of the assessment procedure and of its findings, as well as of the decision it takes relating to the status of the operating licence.
3. When the audited accounts referred to in Article 8(4) have not been communicated within six months following the accounts closing date of the previous financial year, the competent licensing authority shall request the Community air carrier to communicate these audited accounts without delay.
If the audited accounts are not communicated within one month, the operating licence shall be revoked or suspended.
The competent licensing authority shall inform the Commission of the failure of the Community air carrier to communicate its audited accounts within the six month time limit and of the subsequent action it takes.
4. In the event that a Community air carrier's AOC is suspended or withdrawn, the competent licensing authority shall immediately suspend or revoke that air carrier's operating licence.
Article 10
Decisions on operating licences
1. The competent licensing authority shall take a decision on an application as soon as possible, and not later than three months after all the necessary information has been submitted, taking into account all available evidence. The decision shall be communicated to the applicant. A refusal shall indicate the reasons therefore.
2. Procedures for granting, suspending and revoking ║ operating licences shall be made public by the competent licensing authorities, which shall inform the Commission thereof.
3. A list of decisions of the competent licensing authorities to grant, suspend or revoke operating licences shall be published annually in the Official Journal of the European Union.
Article 11
Insurance requirements
An air carrier shall be insured so as to cover liability in the event of an accident, in particular with respect to passengers, luggage, cargo, mail and third parties. Where applicable, the insurance cover║ shall comply with the minimum requirements provided for in Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators(9).
Article 12
Registration
1. Without prejudice to Article 13(2), aircraft used by a Community air carrier shall be registered █within the Community. The Member State whose competent licensing authority is responsible for granting the operating licence of the Community air carrier may require such aircraft to be registered in its national register.
2. In accordance with paragraph 1, a competent licensing authority shall, subject to applicable laws and regulations, accept on its national register, without any discriminatory fee and without delay, aircraft owned by nationals of other Member States and transfers from aircraft registers of other Member States. No fee shall be applied to transfers of aircraft in addition to the normal registration fee.
Article 13
Leasing
1. █An undertaking requesting the granting of an operating licence shall have one or more aircraft at its disposal through ownership or lease without crew (dry lease) agreement.
A Community air carrier shall have one or more aircraft at its disposal through ownership or ║ a ║dry lease agreement.
A Community air carrier may have one or more aircraft at its disposal through a ║ wet lease agreement.
2. In the case of short-term wet lease agreements to meet the temporary needs of a Community air carrier, or otherwise in exceptional circumstances, the competent licensing authority may grant waivers to the requirement of registration provided for in Article 12(1) provided that:
a)
the Community air carrier can justify such leasing on the basis of an exceptional need, in which case a waiver may be granted for a period of up to seven months that may, in exceptional circumstances, be renewed once only for a second period of up to seven months; or
b)
the Community air carrier demonstrates that leasing is necessary to satisfy seasonal capacity needs, which cannot reasonably be satisfied through leasing aircraft registered in accordance with Article 12(1), in which case the waiver may be granted for a period of up to seven months that may be renewed; or
c)
the Community air carrier demonstrates that leasing is necessary to overcome unforeseen operational difficulties, such as technical problems, and it is not reasonable to lease aircraft registered in accordance with Article 12(1), in which case the waiver shall be of a limited duration which is strictly necessary for overcoming the difficulties.
█Such waivers shall be subject to the existence of a valid agreement providing for reciprocity as regards wet-leasing between the Member State concerned or the Community and the third country of registration of the leased aircraft.
3. For the purposes of ensuring safety standards, a Community air carrier using an aircraft from another undertaking or providing it to another undertaking, with or without crew, shall obtain prior approval for the operation from the competent licensing authority. The conditions of the approval shall be part of the lease agreement between the parties.
4. The competent licensing authority shall not approve wet-leasing or dry-leasing agreements ║ as regards an air carrier to which it has granted an operating licence unless that authority has determined and declared in writing to the air carrier in question that all safety standards equivalent to those imposed in the relevant Community law are met.
Article 14
Examination by the Commission
1. The Commission acting in accordance with the procedure referred to in Article 28(2) at the request of a Member State, or on its own initiative, shall examine compliance with the requirements of this Chapter and take a decision to suspend or revoke an operating licence if necessary.
2. In order to carry out its duties under this Article the Commission may obtain all necessary information from the competent licensing authority or directly from the Community air carrier(s) concerned within a time limit fixed by the Commission.
Article 15
Rights of defence
The competent licensing authority and the Commission shall ensure that, when adopting a decision to suspend or revoke the operating licence of a Community air carrier, the Community air carrier concerned is given the opportunity of being heard, taking into account the need, in some cases, for an urgency procedure.
Article 16
Social legislation
With respect to employees of a Community air carrier operating air services from an operational base outside the territory of the Member State in which that Community air carrier has its principal place of business, Member States shall ensure the proper application of Community and national legislation in the social field.
Chapter III
Access to routes
Article 17
Provision of intra-Community air services
1. Community air carriers shall be entitled to exercise traffic rights on routes within the Community.
2. Member States shall not subject the exercise of traffic rights by a Community air carrier to any permit or authorisation. If a Member State has reasons to doubt ║the validity of an operating licence issued to a Community air carrier, it shall raise the matter with the competent licensing authority. Member States shall not require Community air carriers to provide any documents or information which they have already supplied to the competent licensing authority.
3. In operating intra-Community air services, a Community air carrier shall be permitted to combine air services, and to enter into code share arrangements, without prejudice to the Community competition rules applicable to undertakings.
4. Any restrictions on the freedom of Community air carriers to provide intra-Community air services arising from bilateral agreements between Member States are hereby superseded.
5. Notwithstanding the provisions of bilateral agreements between Member States, and subject to the Community competition rules applicable to undertakings and to the provisions of bilateral agreements between Member States and third countries, Community air carriers shall be permitted by the Member State(s) concerned to combine air services and to enter into code share arrangements with any air carrier on air services to, from or via any airport in their territory from or to any point(s) in third countries.
6. Without prejudice to any existing rights granted prior to the entry into force of this Regulation, and notwithstanding Regulation (EC) Nr. 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air service agreements between member states and third countries(10), non-Community air carriers shall not be permitted to exercise traffic rights, to combine air services or to enter into code-share arrangements in respect of routes wholly within the Community unless they are permitted to do so by an agreement concluded by the Community with a third country.
7. Without prejudice to any existing rights granted prior to the entry into force of this Regulation, and notwithstanding Regulation (EC) Nr 847/2004, air carriers of third countries shall not be permitted to transit the territory of the Community unless the third country concerned is a party to the International Air Services Transit Agreement signed at Chicago on 7 December 1944 or has concluded an agreement to that effect with the Community.
Article 18
General principles for public service obligations
1. A Member State, following consultations with the other Member States concerned and after having informed the Commission, the airports concerned and air carriers operating on the route, may impose a public service obligation in respect of scheduled air services to an airport in its territory, any such route being considered vital for the economic and social development of the region █which the airport serves. That obligation shall be imposed only to the extent necessary to ensure on that route the minimum provision of scheduled air services satisfying fixed standards of continuity, regularity, pricing or minimum capacity, ║ standards which air carriers would not assume if they were solely considering their commercial interest.
The fixed standards imposed on the route subject to that public service obligation shall be set in a transparent and non-discriminatory way.
2. In instances where other modes of transport cannot ensure an uninterrupted service with at least two daily operations, the Member States concerned may include in the public service obligation the requirement that any air carrier intending to operate the route gives a guarantee that it will operate the route for a certain period, to be specified, in accordance with the other terms of the public service obligation.
3. When a public service obligation has been imposed in accordance with paragraphs 1 and 2 ║ air carriers shall be able to offer seat-only sales only if the air service in question meets all the requirements of the public service obligation. Consequently, that air service shall be considered as a scheduled air service.
4. If no air carrier has commenced or is about to commence scheduled air services on a route in accordance with the public service obligation which has been imposed on that route, the Member State concerned may limit access to the scheduled air services on that route to only one air carrier for a period of up to four years, after which the situation shall be reviewed.
This period may be up to five years if the public service obligation is imposed on a route to an airport serving an ultra-peripheral region, as defined in Article 299(2) of the Treaty.
5. The right to operate the services referred to in paragraph 4 shall be offered by public tender in accordance with Article 19, either singly or, in cases where this is indispensable for operational reasons, for a group of such routes to any Community air carrier entitled to operate such air services.
6. When a Member State wishes to impose a public service obligation, it shall communicate the complete text of the envisaged imposition of the public service obligation to the Commission, to the other Member States concerned, to the airports concerned and to the air carriers operating the route in question.
The Commission shall publish an information notice in the Official Journal of the European Union:
a)
identifying the two airports connected by the route concerned,
b)
mentioning the date of entry into force of the public service obligation, and
c)
indicating the complete address where the text and any relevant information and/or documentation related to the public service obligation shall be made available without delay and free of charge by the Member State concerned.
7. The need and ║ adequacy of an envisaged public service obligation shall be assessed by the Member States having regard to:
a)
the proportionality between the envisaged obligation and the economic development needs of the region concerned;
b)
the possibility of having recourse to other modes of transport and the ability of such modes to meet the transport needs under consideration, in particular when existing rail services serve the envisaged route with a travel time of less than three hours;
c)
the air fares and conditions which can be quoted to users;
d)
the combined effect of all air carriers operating or intending to operate on the route.
8. The date of entry into force of a public service obligation shall not be earlier than the date of publication of the information notice referred to in the second subparagraph of paragraph 6.
9. A public service obligation shall be deemed to have expired if no scheduled air service has been operated during a period of more than twelve months in the route subject to such obligation.
10. In the event of a sudden interruption in service by the air carrier selected in accordance with Article 19, the Member State concerned may, in the event of an emergency, select by mutual agreement a different air carrier to operate the public service obligation for a period of up to six months, which is not renewable, under the following conditions:
a)
any compensation paid by the Member State shall be made in compliance with Article 19(8);
b)
the selection shall be made among Community air carriers in compliance with the principles of transparency and non-discrimination.
The Commission and the Member State(s) shall be informed without delay of the emergency procedure and of its reasons. At the request of a Member State(s), or on its own initiative, the Commission may, in accordance with the procedure referred to in Article 28(2), suspend the procedure if it considers that it does not meet the requirements of this paragraph or is otherwise contrary to Community legislation.
Article 19
Public tender procedure for public service obligation
1. The public tender required by Article 18(5) shall be conducted according to the procedure set out in paragraphs 2 to 11.
2. The Member State concerned shall communicate the entire text of the invitation to tender to the Commission.
3. The Commission shall make the invitation to tender known through an information notice published in the Official Journal of the European Union. The deadline for submission of tenders shall not be earlier than two months after the day of publication of such an information notice. In the event that the tender concerns a route to which ║ access had already been limited to one carrier in accordance with Article 18(4), the invitation to tender shall be published at least six months before the start of the new concession in order to enable the continued need for restricted access to be assessed.
4. The information notice shall provide the following information:
(a) Member State(s) concerned;
(b)
Air route concerned;
(c)
Period of validity of the contract;
(d)
Complete address at which the text of the invitation to tender and any relevant information and/or documentation related to the public tender and the public service obligation shall be made available by the Member State concerned;
(e)
Deadline for submission of tenders.
5. The Member State(s) concerned shall communicate without delay and free of charge any relevant information and documents requested by a party interested in the public tender.
6. The invitation to tender and the subsequent contract shall cover, inter alia, the following points:
(a)
The standards required by the public service obligation;
(b)
Rules concerning the amendment and termination of the contract, in particular to take account of unforeseeable changes;
(c)
The period of validity of the contract;
(d)
Sanctions in the event of failure to comply with the contract;
(e)
Objective and transparent parameters on the basis of which compensation, if any, for the discharge of the public service obligations shall be calculated.
7. The selection among the submissions shall be made as soon as possible taking into consideration the adequacy of the service, including the prices and conditions which can be quoted to users, and the cost of the compensation required from the Member State(s) concerned, if any.
8. The Member State concerned may compensate an air carrier, which has been selected under paragraph 7, for adhering to the standards required by a public service obligation imposed under Article 18. Such compensation may not exceed the amount required to cover the net costs incurred in discharging each public service obligation, taking into account revenue relating thereto kept by the air carrier and a reasonable profit.
9. The Commission shall be informed without delay of the results of the public tender and of the selection through a notice from the Member State including the following information:
(a)
Numbers and names of, and corporate information on, tenderers;
(b)
Operational elements contained in the offers;
(c)
Compensation requested in the offers;
(d)
Name of the selected tenderer.
10. At the request of a Member State, or on its own initiative, the Commission may request Member States to communicate, within one month, all relevant documents relating to the selection of an air carrier for the operation of a public service obligation. In the event that the requested documents are not communicated within the deadline, the Commission may decide to suspend the invitation to tender in accordance with the procedure referred to in Article 28(2).
Article 20
Examination of public service obligations
1. Member States shall take all necessary measures to ensure that any decision taken under Articles 18 and 19 can be reviewed effectively and, in particular, as soon as possible, on the grounds that such decisions have infringed Community law or national rules implementing Community law.
In particular, at the request of a Member State, or on its own initiative, the Commission may request Member States to communicate, within two months:
a)
a document justifying the need for the public service obligation and its compliance with the criteria mentioned in Article 18,
b)
an analysis of the economy of the region,
c)
an analysis of the proportionality between the envisaged obligations and the economic development objectives,
d)
an analysis of ║ existing air services, if any, and of ║other modes of transport available which could be considered a substitute regarding the envisaged imposition of a public service obligation.
2. At the request of a Member State which considers that the development of a route is being unduly restricted by the terms of Articles 18 and 19, or on its own initiative, the Commission shall carry out an investigation and, within six months of receipt of the request and in accordance with the procedure referred to in Article 28(2), shall take a decision, on the basis of all relevant factors, on whether Articles 18 and 19 shall continue to apply in respect of the route concerned.
Pending such a decision, the Commission may decide on interim measures including the suspension, in whole or in part, of a public service obligation.
Article 21
Traffic distribution between airports and exercise of traffic rights
1. The exercise of traffic rights shall be subject to published Community, national, regional and local operational rules relating to safety, security, the protection of the environment and the allocation of slots.
2. A Member State, after consultation of the air carriers and airports concerned, may regulate, without discrimination between destinations inside the Community or on grounds of nationality or identity of air carriers, the distribution of air traffic between airports satisfying the following conditions:
a)
the airports serve the same city or serve a conurbation in which they are all situated;
b)
the airports are served by an adequate transport infrastructure making it possible to arrive at the airport, using public transport, within an hour; and
c)
the airports are linked to one another and to the city or conurbation they shall serve by frequent, reliable and efficient public transport services.
Any decision to regulate the distribution of air traffic between the airports shall respect the principles of proportionality and transparency, and shall be based on objective criteria.
3. Without prejudice to traffic distribution rules existing prior to the adoption of this Regulation, the Member State concerned shall inform the Commission of its intention to regulate the distribution of air traffic or to change an existing traffic distribution rule.
The Commission shall examine the application of paragraphs 1 and 2 and, within six months of receipt of this request, and in accordance with the procedure referred to in Article 28(2), shall decide whether the Member State may apply the measures.
The Commission shall publish its decision in the Official Journal of the European Union and the measures shall not be applied before the publication of the Commission's approval.
Article 22
Emergency measures
1. A Member State may refuse, limit or impose conditions on the exercise of traffic rights to deal with sudden problems of short duration resulting from unforeseeable and unavoidable circumstances. Such action shall respect the principles of proportionality and transparency and shall be based on objective and non-discriminatory criteria.
The Commission and the other Member States shall be informed without delay of such action with its adequate justification. If the problems necessitating such action continue to exist for more than 14 days, the Member State shall inform the Commission and the other Member States accordingly and may, with the agreement of the Commission, prolong the action for further periods of up to 14 days.
2. At the request of the Member State(s) involved, or on its own initiative, the Commission may suspend this action if it does not meet the requirements of paragraph 1 or is otherwise contrary to Community law.
Chapter IV
Provisions on Pricing
Article 23
Pricing
Without prejudice to Article 25, this Chapter shall not apply to:
a)
air fares and rates charged by air carriers other than Community air carriers;
b)
air fares and rates established pursuant to a public service obligation in accordance with Chapter III.
Article 24
Pricing freedom
1. Without prejudice to Articles 18(1) and 25, Community air carriers shall freely set air fares and rates for intra-Community air services.
2. Notwithstanding the provisions of bilateral agreements between Member States, Member States may not discriminate on grounds of nationality or identity of air carrier in allowing Community air carriers to set fares and rates for air services between their territory and a third country. Any remaining restrictions on pricing, including with respect to routes to third countries, arising from bilateral agreements between Member States are hereby superseded.
█
Article 25
Information and non-discrimination
1.This Article shall apply to flights departing from an airport situated in the territory of a Member State and to flights contracted by a Community air carrier departing from an airport located in a third country to an airport situated in the territory of a Member State, unless air carriers are subject to the same obligations in that third country.
2. Air carriers operating within the Community shall provide the general public with comprehensive information on their air fares and rates in accordance with Article 2(18) and (19) and the conditions attached, and on all applicable taxes, non-avoidable charges, surcharges and fees levied by them for the benefit of third parties.
Air fares published in any form, including on the Internet, which are addressed directly or indirectly to the travelling public shall include all applicable taxes, non-avoidable charges, surcharges and fees known at the time of publication. Air fares shall not incorporate costs not actually incurred by air carriers.
Optional price supplements shall be communicated in a clear, transparent and unambiguous way at the start of any booking process and their acceptance by the passenger shall be on an "opt-in" basis. Implied agreements to accept such supplements shall be null and void.
All costs which are not part of the air fare and which are not levied by air carriers operating within the Community shall be comprehensively advertised by the "ticket seller" within the meaning of Article 2 (d) of Regulation (EC) No 2111/2005 of the European Parliament and of the Council of 14 December 2005 on the establishment of a Community list of air carriers subject to an operating ban within the Community and on informing air transport passengers of the identity of the operating air carrier(11).
3. Air carriers shall allow access to air fares without any discrimination based on the nationality or the place of residence of the passenger or on the place of establishment of the travel agent within the Community.
Air carriers shall not impose rules on passengers and travel agencies which in practice restrict their free and equal access to air fares.
4.For the implementation of the obligations set out in paragraphs 2 and 3, air carriers shall advertise their air fares and rates and the conditions attached, and all applicable taxes, charges and fees levied by them for the benefit of third parties, using the following categories:
-
taxes and other state charges and duties,
-
charges, duties, fees and other costs for the benefit of the airlines,
-
charges, duties, fees and other costs for the benefit of the airport operators.
5.Consumers shall be provided with a full breakdown of any taxes, fees and charges added to the ticket price.
Article 26
Transparency in charging
Where airport or on-board security costs are included in the price of an air ticket, those costs shall be shown separately on the ticket or otherwise indicated to the passenger. Security taxes and charges, whether levied by Member States or by air carriers or entities, shall be transparent and shall be used exclusively to meet airport or on-board security costs.
Article 27
Penalties
Member States shall ensure compliance with the rules set out in this Chapter and shall lay down penalties for infringements thereof. Those penalties shall be effective, proportionate and dissuasive.
Chapter V
Final provisions
Article 28
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.
║
Article 29
Cooperation and right to obtain information
1. Member States and the Commission shall cooperate in applying and in monitoring the application of this Regulation.
2. In order to carry out its duties under this Regulation the Commission may obtain all necessary information from Member States, which shall also ensure the provision of information by air carriers licensed by their competent licensing authorities.
3. Member States shall, according to their national legislation, take the necessary measures to ensure appropriate confidentiality of the information received by them in application of this Regulation.
Article 30
Repeal
Regulations (EEC) No 2407/92, 2408/92 and 2409/92 are repealed.
References to the repealed Regulations shall be construed as references to this regulation and shall be read in accordance with the correlation table in ║ Annex II ║.
Article 31
Entry into force
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
ANNEX I
Information to be provided in the context of Articles 5 and 8
1. Information to be provided by a first-time applicant from a financial fitness point of view
1.1. The most recent internal management accounts and, if available, audited accounts for the previous financial year.
1.2. A projected balance sheet, including profit and loss account, for the following three years.
1.3. The basis for projected expenditure and income figures on such items as fuel, fares and rates, salaries, maintenance, depreciation, exchange rate fluctuations, airport charges, insurance, etc. Traffic/revenue forecasts.
1.4. Details of the start-up costs incurred in the period between submission of an application and the commencement of operations and an explanation of how ║ these costs are to be financed.
1.5. Details of existing and projected sources of finance.
1.6. Details of shareholders, including nationality and type of shares to be held, and the Articles of Association. If part of a group of undertakings, information on the relationship between them.
1.7. Projected cash-flow statements and liquidity plans for the first three years of operation.
1.8. Details of the financing of aircraft purchase/leasing including, in the case of leasing, the terms and conditions of contract.
2. Information to be provided for assessment of the continuing financial fitness of existing licence holders planning a change in their structures or in their activities with a significant bearing on their finances
2.1. If necessary, the most recent internal management balance sheet and audited accounts for the previous financial year.
2.2. Precise details of all proposed changes e.g. change of type of service, proposed takeover or merger, modifications in share capital, changes in shareholders, etc.
2.3. A projected balance sheet, with a profit and loss account, for the current financial year, including all proposed changes in structure or activities with a significant bearing on finances.
2.4. Past and projected expenditure and income figures on such items as fuel, fares and rates, salaries, maintenance, depreciation, exchange rate fluctuations, airport charges, insurance, etc. Traffic/revenue forecasts.
2.5. Cash-flow statements and liquidity plans for the following year, including all proposed changes in structure or activities with a significant bearing on finances.
2.6. Details of the financing of aircraft purchase/leasing including, in the case of leasing, the terms and conditions of contract.
3. Information to be provided for assessment of the continuing financial fitness of existing licence holders
3.1. Audited accounts not later than six months after the end of the relevant period and, if necessary, the most recent internal management balance sheet.
3.2. A projected balance sheet, including profit and loss account, for the forthcoming year.
3.3. Past and projected expenditure and income figures on such items as fuel, fares and rates, salaries, maintenance, depreciation, exchange rate fluctuations, airport charges, insurance, etc. Traffic/revenue forecasts.
3.4. Cash-flow statements and liquidity plans for the following year.
– having regard to the Commission White Paper on Financial Services Policy 2005-2010 (COM(2005)0629) (hereinafter the "Commission White Paper"),
– having regard to the implementation of the Financial Services Action Plan (FSAP) (COM(1999)0232) adopted by the Commission, in particular Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse)(1), Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments(2) (MiFID), Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market(3), the capital requirements directives (CRD) (Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (recast)(4) and Directive 2006/49/EC of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions (recast)(5)) and the proposal for a Directive of the European Parliament and of the Council on the exercise of voting rights by shareholders of companies having their registered office in a Member State and whose shares are admitted to trading on a regulated market (COM(2005)0685),
– having regard to the Commission staff working document - Single Market in Financial Services Progress report 2006,
– having regard to the European Code of Conduct on Clearing and Settlement of 7 November 2006 and the Euro system proposal to develop a settlement system for securities transactions in central bank money (Target 2 Securities) (hereinafter the "Code of Conduct"),
– having regard to the Commission proposal for a directive of the European Parliament and of the Council amending Council Directive 92/49/EEC and Directives 2002/83/EC, 2004/39/EC, 2005/68/EC and 2006/48/EC of the European Parliament and of the Council as regards procedural rules and evaluation criteria for the prudential assessment of acquisitions and increase of shareholdings in the financial sector (COM(2006)0507),
– having regard to the FSC Report on financial supervision of February 2006 (Francq Report), published on 23 February 2006,
– having regard to the Second Interim Report of the Inter-Institutional Monitoring Group monitoring the Lamfalussy Process (IIMG), issued on 26 January 2007,
– having regard to the Committee of European Securities Regulators (CESR) report on "which supervisory tools for the EU securities markets", (Himalaya Report), published on 25 October 2004,
– having regard to its recommendation of 19 June 2007 based on the report of the Committee of Inquiry into the crisis of the Equitable Life Assurance Society(6),
– having regard to its resolutions of 15 January 2004 on the future of hedge funds and derivatives(7), of 28 April 2005 on the current state of integration of EU financial markets(8), and of 4 July 2006 on consolidation in the financial services industry(9),
– having regard to Rule 45 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 Legal Affairs (A6-0248/2007),
1. congratulates the Commission on the contribution of the FSAP towards the creation of a European capital market that is leading in the world not least because of the quality and solidity of its financial regulation; welcomes the economic priorities set out in the Commission White Paper, namely to consolidate the European financial market, remove barriers to the free movement of capital and improve the supervision of financial services;
2. urges Member States to ensure the timely and consistent implementation of the FSAP; calls on the Commission to monitor its enforcement, and on the Level 3 committees continuously to improve the consistency of its application;
3. Is concerned that the rate of transposition of Community law by the Member States within the prescribed deadline is still low and calls for increased cooperation between supervisory bodies in the Member States;
4. Welcomes the Commission's commitment to a coherent interpretation of terminology across Member States; urges the Commission, when drafting new legislation, to ensure compatibility with existing terminology at both European and global levels;
5. would welcome a more in-depth examination of the economic effects of the FSAP measures in the light of the Lisbon Strategy and the financing needs of the real economy; asks the Commission to commission such studies together with its annual progress reports and implementation monitors, and recommends that special attention be given to the effects of the implementation of the FSAP measures with special reference to the countries benefiting relatively from FSAP implementation and to the magnitude of beneficiary countries' profits earned from the consolidation of the financial market;
Market concentration
6. notes a high market consolidation in the top segment of financial services provided to large listed companies, notably by audit firms and credit rating agencies (CRAs); urges the Commission and national competition authorities to carefully apply the Community competition rules to those market players, to be vigilant with regard to any risk of unlawful market concentration in the provision of services to large listed companies; emphasises the need for accessible complaint and redress procedures; asks the Commission to take due account of the users" perspective; emphasises also the need to remove barriers to new entrants as well as the need to remove legislation favouring incumbents and current market structures where competition is limited;
7. Urges implementation of the recommendations contained in the report of the Committee of Inquiry into the Crisis of the Equitable Life Assurance Society (A6-0203/2007);
8. Is pleased with the recent approval of the reform of Article 19 of Directive 2006/48/EC by the prospective directive on the prudential assessment of acquisitions and increase of holdings in the financial sector, and urges the Commission to continue its action towards the removal of obstacles to cross-border mergers and acquisitions, as identified in the Commission Staff Working Document on Cross-border consolidation in the EU financial sector (SEC(2005)1398) and Parliament's above mentioned resolution of 4 July 2006;
9. Stresses the need among CRAs for transparency of fees and the separation of rating and ancillary services as well as for a clarification of assessment criteria and business models; emphasises that CRAs play a public role in, for example, the CRD and that they should, therefore, meet high standards of accessibility, transparency, quality and reliability required of regulated businesses such as banks; urges the International Organization of Securities Commissions (IOSCO) and the CESR to continue to closely monitor the compliance of CRAs with the IOSCO code of conduct; would welcome the emergence of European players in the CRA sector;
10. Following the implementation of MiFID, anticipates increased competition among trading platforms and financial intermediaries, but also increased consolidation of the stock exchanges; believes that stronger cross-Atlantic convergence of financial market rules and supervisory practices is needed without undermining the principle-based approach, and avoiding the imposition of extraterritorial rules; emphasises that good governance is imperative and that the influence of users and the rights of workers employed in this sector must not be eroded with changing ownership;
11. Calls on the Commission to investigate which measures are best suited to promote shareholder loyalty and to encourage employee share-ownership, with a view to balancing the different stakeholder interests;
12. while calling for progress in removing the other barriers identified in the Giovannini Group's report on Cross-Border Clearing and Settlement Arrangements in the European Union of November 2001, strongly reiterates the need to improve the post-trading infrastructure both with a view to price transparency, and competition as to the public interest of clearing and settlement security; welcomes the progress being made in implementing the Code of Conduct which will deliver those aims and which will also support Article 34 of MiFID, requiring stock exchanges to provide all their users with the option of designating the settlement system with which they wish to settle their transactions in the event of cross-border share transactions; intends closely to scrutinise the developments surrounding the Code of Conduct as well as the TARGET2 Securities project in this context, emphasising the governance and supervision needed to cope with conflicts of interest; calls on the Council and the Commission to launch, without further delay, the initiatives required to remove completely the obstacles under the control of the public sector, relating to the legal and fiscal barriers identified in the Giovannini Group's report and in the areas not covered by the Code of Conduct;
13. points to the increasing influence of proxy voting intermediaries and financial intermediaries holding consumers' tangible assets through indirect holding systems; asks the Commission to assess the potential risks of market dominance, market abuse and conflicts of interest by such intermediaries and to closely monitor the effects of the prospective directive on the exercise of voting rights by shareholders of companies; encourages wider use of modern software solutions, thereby promoting disintermediation and direct market access by the end investor;
14. Recognises the high proportion of financial service companies in the new Member States that are wholly or partly foreign owned and is concerned that, without properly implemented cooperation, this may make it difficult for the supervisory authorities in those Member States to exercise effective supervision and control and to take into account the interests and needs of the new Member States;
15. Asks the Commission to assess facts about the functioning of the top level of the market of large merger and acquisition transactions and private equity deals and the accompanying underwriting and lending activities; warmly welcomes the increased vigilance of supervisors with regard to plain cases of market manipulation, insider dealing or front-running; urges the Commission to cooperate with US regulators to check whether the necessary safeguards, such as internal codes of conduct and 'Chinese walls' are adequate to achieve an appropriate level of corporate governance and market transparency and to manage conflicts of interest;
16. Emphasises the importance of ensuring the independence of financial analysts and financial market data providers through transparent funding structures; urges the Commission to address the issues left unresolved by Directive 2004/72/EC(10) and MiFID with regard to the distinction between "financial analysis" and "other information";
Alternative investment vehicles
17. is fully aware of the rapid rise of alternative investment vehicles (hedge funds and private equity); recognises that they provide liquidity and diversification in the market and create an opportunity to improve efficiency of corporate management, but also shares the concerns of some central banks and supervisors that they may give rise to systemic risk and to high levels of exposure of other financial institutions;
18. Calls on the Commission to launch a debate on hedge funds so as to be prepared for international and European discussions;
19. Welcomes the Commission's recent studies on hedge funds and private equity, but regrets that these studies have so far focused only on barriers to growth of such funds; invites the Commission to monitor any potential policy gaps; emphasises the need for sector-specific work by the regulators of such funds, including the CESR and IOSCO and competent authorities in markets where such funds are common, taking it on board as part of the EU-US dialogue; asks for a broader and more critical approach with regard to the risks of market abuse; invites the Commission to review the differences in Member States' regimes for retail access to alternative investments, and, in particular, to determine the appropriate qualifications for distributors of such products to retail investors;
20. urges the Commission to assess the quality of supervision in offshore locations and to step up cooperation with the supervisors in these jurisdictions; intends to join forces with the US Congress Financial Services Committee of the House of Representatives in investigating how to respond to the undesired flight of capital to tax havens;
21. Welcomes the updated report of the Financial Stability Forum of 19 May 2007 on the hedge fund industry; welcomes, in particular, the recommendations of the report which aim to address potential systemic risk and operational risks associated with the activities of hedge funds; calls for increased cooperation and exchange of information among supervisors of financial institutions in taking forward these recommendations and in spreading good practice in order to enhance resilience to systemic shocks; and furthermore urges the creditors, investors and authorities to remain vigilant and to adequately assess potential counterparty risks that hedge funds present;
Access to finance in the retail segment
22. notes that cross-border integration of EU retail financial markets is less developed than in the wholesale area; notes that consumers still use physically present institutions more than virtual ones, and notes a predominantly domestic-oriented financing structure; warns, however, against simply overhauling the national consumer protection traditions and legal systems by one-size-fits-all harmonisation; takes the view that national consumer protection traditions must not be interpreted in such a way that new competitors are hindered on the domestic market; emphasises the need for a well-functioning internal market for financial services; notes the importance of intermediaries in bringing competition to Member States' domestic markets; stresses the benefits of open and pluralistic structures in the European banking market in meeting the different and evolving needs of consumers;
23. prefers a more focused approach directed at the de facto barriers which impact on mobile cross-border users; encourages the financial industry to develop pilot pan-European financial products such as pensions, mortgages, insurance products or consumer credit, and invites the Commission to undertake the preparation of an appropriate and feasible framework of regulation and supervision, in terms of contractual law, consumer credit and consumer protection so that such products are portable and mutually recognised within the European Union, in order to foster favourable conditions for cross-border labour mobility in an integrated single market;
24. Points to the need for the same risks, profile and business strategies to be matched by the same security in a common European market in financial products and for capital requirements to be couched accordingly; maintains that, for the purposes of transparency and protection of consumers, Member States must be prevented from engaging in competition based on the lowest supervision and security standards;
25. Shares the concern expressed in point 1.2.3 of the Background Paper annexed to the Commission Green Paper on enhancement of the European framework for investment funds (SEC(2005)0947), regarding the emergence in some Member States of guaranteed funds not backed by capital adequacy requirements, given that consumer protection in this area is insufficient; calls on the Commission, therefore, with a view to protecting consumers effectively, to close the European regulatory gap by laying down appropriate capital adequacy requirements for guaranteed funds, observing the principle that supervision requirements must be equally stringent both from a qualitative point of view, in terms of risk management standards, and quantitatively, as regards capital requirements ("same risk, same capital");
26. has taken due note of the sector inquiry into retail banking and payment cards systems that reveals several areas in need of improvement; welcomes the prospective Payment Services Directive, which is expected to bring about better preconditions for competition in these fields; warns, however, that opening up existing imperfect systems should not lead to a situation in which a high level of market consolidation could create new imperfections and price constraints, damaging the overall structure of the European economy's financing system, the quality of local services, and the opportunities for SMEs to obtain financing suited to their needs; has taken note of the need to open access to credit registers and payment systems and asks for further clarification on the next concrete steps to be taken in this respect;
27. Would welcome the emergence, not least in the light of the current position regarding SWIFT, of the EU's own banking card system;
28. Stresses that the two building blocks of the Single European Payment Area (SEPA), namely credit transfers and direct debits, will come into effect in 2010; notes that the third pillar, the cards framework, will be put in place from 2008 onwards; notes that the prospective Payment Services Directive is expected to bring new service providers, such as retailers, money remitters and mobile operators into this area of business; will monitor whether, as a consequence, the cost of interchange fees and cross-border retail payment transactions declines significantly;
29. Is concerned that the consumer's choice is often limited to retail products of the financial groups operating domestically; stresses the importance of the unbundling of different services provided to consumers and calls for disclosure of value chain costs to the clients in order to introduce more transparency and ensure a level playing field for competition;
30. Urges the Commission to reactivate the initiative aimed at providing mutual societies with a European statute, as called for in Parliament's resolution of 16 May 2006 on the outcome of the screening of legislative proposals pending before the Legislator(11);
31. acknowledges the challenge of ageing populations; emphasises the importance of collective second pillar occupational pensions in addition to proper solidarity-based first-pillar pension schemes, and endorses Directive 2003/41/EC of the European Parliament and of the Council of 3 June 2003 on the activities and supervision of institutions for occupational retirement provision(12) as the specific regulatory framework for pension funds; urges the Commission to explore the possibility, within the framework of better regulation, and in order to promote supervisory convergence across the European Union and to prevent unequal treatment of market players and distortions of competition, of supplementing that Directive with a harmonised solvency framework for pension funds in line with the Solvency II approach, in order to provide for advanced risk management techniques as well as disincentives for regulatory arbitrage by establishing equal supervision requirements both from a qualitative point of view, in terms of risk management standards, and quantitatively, as regards capital requirements ("same risk, same capital"), taking into account the specific features of occupational retirement provision; reiterates that such a legislative framework must be supported by the coordination of taxation, especially concentrating on the tax base;
32. notes that too many EU citizens are excluded from basic financial services; concludes that well-functioning basic financial services should remain available and affordable to every EU citizen; asks the Commission to conduct a study on the accessibility of services such as bank accounts, cash machines, payment cards, and low-cost loans, and to promote best practices and experiences developed by financial institutions in providing such basic services;
33. Supports the findings of the sector inquiry into retail banking that credit data sharing tends to have positive economic effects, increasing competition and benefiting new market entrants, by reducing the information asymmetry between the bank and the customer, acting as a borrower disciplining device, reducing the problems of adverse selection and promoting customer mobility; considers that granting access to both positive and negative credit data can play a key role in helping consumers obtain access to credit and fight financial exclusion;
34. Signals the growth of specific financial service providers for migrant groups, which transfer remittances and develop the banking system, including Islamic banking; warns that requirements for those new niche players should be solid but also such as to prevent them from disappearing into a grey zone, where no supervision at all is possible; calls on the European Union, especially when pursuing its relations with home countries of migrant workers, to cooperate with the appropriate local economic and monetary authorities;
35. Welcomes the increasing attention to microcredit provision as a contribution to self-employment and start-ups, e.g. in the activities of the Commission Directorate General for Regional Policy and the JEREMIE programme of the European Investment Bank Group; asks that the Basel rules be adapted for the purposes of microcredit portfolios and capping the often excessive costs on small loans; urges the Commission, working in collaboration with its various Directorates-General responsible for this sector, to draw up an action plan for microfinancing, to coordinate the different policy measures, and to make optimal use of best practices in and outside the European Union;
Financial literacy and users' input in policymaking
36. believes that more is involved in the creation of a European integrated financial market than just providing consumers with more choice; emphasises that financial literacy should be more actively promoted than hitherto, and that access to proper information and unbiased investment advice is essential; takes the view that principles such as ensuring best execution and carrying out suitability tests when providing investment services should form the basis for regulation of service providers in this field;
37. Strongly supports the Commission's initiatives to upgrade financial capability and invites the Commission and the Member States to increase their efforts to create specific programmes and websites, in which the firms concerned should likewise be involved, but also urges them to make it an integral part of basic school education;
38. welcomes the establishment of the Financial Services Consumer Group and the attempts to involve user representatives in expert groups and consultations; notes, nevertheless, that the voice of consumers and end users such as small and medium-sized enterprises (SMEs) lags far behind that of the financial industry; recommends the creation of a European budget line to finance financial market expertise in consumer and SME organisations in order to feed into the FSAP consultation processes;
39. Calls on industry to play its part in consumer protection by producing readily comprehensible and usable products and succinct consumer-friendly information;
Better regulation
40. is fully committed to the aims of better regulation based on the findings of careful, independent and professionally conducted impact assessments, and emphasises that such assessments, as well as the policy decisions based on them, should not be made solely on the basis of financial considerations but should duly take into account economic, social, societal, environmental, cultural and other aspects of public interest;
41. Notes that one of the priorities of better regulation concerns the legal aspect, namely to implement, enforce and continuously evaluate the existing legislation, and to apply rigorously the better regulation agenda to future initiatives;
42. Takes the view that consultations with stakeholders should continue to play a key role, and stresses that such consultations should be held sufficiently upstream of the decision-making process so that opinions can genuinely be taken into account; calls on the Commission to continue to publish the replies to its consultations in order to ensure that the process is transparent;
43. Notes that under the agreement on better law-making, any new Commission proposal should give rise to an impact assessment on the important issues; regrets that, up to now, this commitment has not been fulfilled in a satisfactory manner and stresses that impact assessments should nevertheless not bring law-making to a standstill; reaffirms Parliament's commitment to better regulation and to conducting impact assessments when making substantive changes to legislative proposals;
44. Points out that the choice of appropriate instrument, i.e. a directive or regulation, is not neutral; calls for a debate to be launched on the basis of the work of the IIMG on criteria to provide guidance and consistency;
45. welcomes the recent comitology agreement and is committed to the adaptation of the involved instruments in the financial services field; recommends similarly modifying the pre-Lamfalussy instruments; insists that Parliament should be allowed observers in the Level 2 committees; notes the need to build well-established interinstitutional working methods through practice more than through written rules or formal agreements and that, in this respect, the elaboration of Level 2 implementing measures for MiFID could serve as a useful example;
46. Is committed to fast-track legislative procedures where possible, if they have proved their worth in practice, but warns that aiming for first reading agreements should not hamper the quality of decision-making or impinge on the democratic process; suggests an evaluation of these processes and an elaboration of rules of procedure to guarantee collective responsibility, transparency and democratic control;
47. Considers that a variety of reporting requirements that duplicate existing provisions results in unnecessary costs and an excessive administrative burden and may also have adverse consequences in terms of legal certainty and, therefore, market integrity; stresses that there is a case for obtaining further benefits by streamlining, simplifying and, when necessary, repealing inefficient existing provisions;
48. Believes that the FSAP has contributed to filling many regulatory gaps in the area of financial services; is convinced, however, that further coordination with competition rule enforcement could have a multiplicative effect on the overall functioning and efficiency of the regulatory framework; points out that new legislation should ensure a fair and competitive environment in line with competition policy;
Systemic risks
49. takes note of a range of new developments which present both potential strengths and possible concerns, including innovative risk mitigation techniques, the substantial growth of credit derivatives markets, the increased systemic importance of large pan-European financial groups, and the growing role of non-bank financial institutions such as hedge funds and private equity;
50. points out that those market changes also affect the nature, source and transfer of systemic risk, and thus the effectiveness of existing ex-ante risk mitigation tools; calls, therefore, for evidence-based identification and evaluation of the sources of systemic risks and the underlying dynamics of financial crises in this context;
51. is concerned that the current nationally and sectorally based supervisory framework may potentially fail to keep pace with the financial market dynamics and stresses that it must be sufficiently well resourced, coordinated and legally entitled to give adequate and quick responses in cases of major systemic crises that affect more than one Member State;
52. appreciates the decision of the Economic and Financial Affairs Council to initiate a crisis exercise to test the appropriateness of the reaction of the prudential supervisors, the finance ministers, and the central banks, and encourages the joint working group set up as a follow-up, to draw courageous conclusions, even in the event that they are politically sensitive;
53. Welcomes the recent report from the Commission evaluating Directive 2002/47/EC on financial collateral arrangements (FCD) (COM(2006)0833); notes the Commission's comments on the importance of close-out netting for reduction of credit risk and increasing efficiency in financial markets as well as more efficient allocation of regulatory capital, and encourages the Commission to formulate a proposal for improving the consistency of the acquis in relation to various Community instruments, including the FCD, which contains provisions on netting and set-off, possibly by developing a single instrument setting out a set of common fundamental principles for each national legal regime for close-out netting;
Architecture of regulation and supervision
54. Welcomes the work performed by the European committees of regulators (the CESR, the Committee of European Banking Supervisors (CEBS), and the Committee of European Insurance and Occupational Pensions Supervisors (CEIOPS)) in consulting the markets, advising the Council and Commission Level 2 committees, and above all in progressing with convergence of regulatory and supervisory practices, without, however, overstepping their remit or attempting to replace the legislators; is convinced that that effort must be encouraged and those committees be adequately employed and resourced for the task which they have undertaken;
55. urges the three Level 3 committees to improve cross-sectoral consistency in prudential regulation and group supervision rules for large financial groups dealing with the same or similar products, and, following stakeholder consultation and due procedure give advice to the legislators as to where it is necessary to review the rules; urges them also to ensure that all financial institutions are equally supervised on a functional basis in all Member States;
56. calls on the Level 2 and Level 3 committees to contain national discretion and gold-plating in line with the basic Level 1 legislation, but to take into account national peculiarities and, in particular, the structural features of individual markets; suggests, in the context of the work of the IIMG, a review of whether it may be helpful if Level 3 committees could operate increasingly on the basis of decision-making by some form of qualified majority voting where its principles still have to be defined; suggests that Level 3 committees be given an annual mandate by Parliament and the Council to come up with concrete plans for cooperation and implementation of agreed measures, possibly drawing on EU budgetary resources; recommends that Lamfalussy Level 2 and Level 3 committees' respective powers and mandates be defined more precisely in order to reflect the need to progress towards a greater convergence of their practices and to let them take, within the remit of their activities, binding decisions vis à vis their members, and that the consultation process with industry gets more input from small and medium-sized enterprises and investors;
57. Emphasises the importance of an integrated European system of cooperation between national and sectoral supervisors, capable of securing the efficient supervision of both big financial players and local entities rooted in national traditions; emphasises that all supervisors must take due account of those traditions in the way they execute their conduct of on-the-spot business supervision; welcomes the increasing cooperation of the Level 3 committees CEBS, CESR and CEIOPS and the fact that they now publish joint annual working programmes;
58. notes that, for effective oversight of the systemic and prudential risks of the top market players, the present system of cooperation may need to be strengthened on the basis of the system of cooperation that exists among supervisors, and encourages greater coordination, in particular with respect to prudential risk supervision of multi-jurisdictional and cross-sectoral entities and financial conglomerates; encourages agreements and codes of conduct between Member States and central banks on the financial backing of this system of prudential supervision, with respect to bail-out and lender-of-last-resort obligations where several Member States and more supervisors are involved; notes that, to judge whether the present system provides for a real oversight of the systemic and prudential risks of the top players in the market, it is necessary to give the relatively new Level 2 and Level 3 arrangements time to bed down and, at the same time, to look into the desirability and feasibility of EU-level execution of prudential supervision where needed in the future;
59. Understands why Member States wish to allow new arrangements time to be implemented and tested before considering any further moves towards convergence; points out that, if progress is not made in this direction, pressure for consideration of a centralised supervisory arrangement may be increased; therefore advocates that, in these circumstances, closer convergence in supervision and cooperation between home and host supervisors within the existing structures becomes a matter of particular importance;
60. Welcomes the cooperation among national supervisory authorities aimed at putting supervisory resources to better use, developing supervisory practice, and lightening the burden that supervision imposes on the market; is positive about colleges of supervisors dealing with multi-jurisdictional financial conglomerates, and about the operational networking project that CEBS has recently initiated; calls on the colleges of supervisors to foster a common European supervisory culture and to determine exactly where the limits of such voluntary cooperation lie when real crisis situations appear; notes, however, that these colleges lack the national mandates to transfer competences, to accept majority decisions, or simply to put sufficient resources and expertise into the colleges' work; points out, therefore, the necessity of defining a framework and national mandates for cooperation and expects the colleges of supervisors and the operational networking project to provide necessary practical solutions (memoranda of understanding) for the supervision of cross-border groups within a short time frame;
61. Emphasises that home-host supervisory cooperation is the most significant building- block in the set-up of the single financial market; notes in particular that, in the field of the supervisory approval process for mergers and acquisitions, there is much to do to facilitate the creation of efficiently functioning financial conglomerates with wider economies of scale; maintains that the banking market landscape of the country where the acquired financial entity is domiciled must be taken into due consideration;
62. considers that a more precise allocation of roles is desirable between the Council, the Commission, and the Level 3 committees; considers also that, for strong supervision, (particularly where there is a clear link to competition issues) a high level of independence and neutrality is required, which cannot be well combined with an overly political profile; emphasises that Member States should be encouraged to converge the powers of national supervisors, especially where penalties are concerned; considers that greater convergence among supervisors should facilitate the business of companies now subject to more than one regulator; highlights that the biggest challenge in terms of practical cooperation reside in the Level 3 committees; suggests the creation of training programmes for financial market supervisors to this effect and calls on the Commission to consider to what extent EU-wide standards could be laid down for the training of national supervisors in keeping with, and to promote, a common European supervision culture;
63. welcomes the decision of the Economic and Financial Affairs Council to set up a Financial Services Committee subgroup on long-term supervisory issues, which is due to report in October 2007; expects that group to give a fair assessment of the present situation which, together with the final report of the IIMG that is also expected in autumn 2007, the report of Parliament and the expected follow-up report of the Commission, may create momentum for an assessment of the remaining challenges to the integration and effectiveness of the financial regulation and supervision architecture, and provide commitment for possible recommendations for further steps;
64. Firmly believes that convergence of supervision practices could encourage the emergence of a European retail financial market;
65. invites the IIMG to take a broad perspective on the challenges and opportunities facing the European system of supervision and to contribute to a further forward-looking debate in its final conclusions;
Global impact
66. believes that a greater counterbalance by the European Union to US leadership could reinforce the influence of the European Union and Member States globally as regards the authority of the US Securities and Exchange Commission; is convinced that the funding model and accountability framework of self-regulatory bodies such as the International Accounting Standards Board, should be clarified; hopes that it will also be possible to bring the International Monetary Fund back on track as a real global monetary authority and actor to prevent crises, guarantee financial stability, and restore global imbalances;
67. Believes that the transatlantic partnership should be developed and strengthened by enhancing regulatory coordination; highlights the importance of the implementation of Basel II by the US authorities as well as mutual recognition of EU and US accounting standards, and calls for more democratically controlled cooperation between the European Union and the United States in monitoring the sector-specific work of regulators of alternative investment vehicles such as hedge funds, including with the International Organization of Securities Commissions and the competent authorities in markets where such funds are common and, as part of the EU-US dialogue; supports the Council Presidency's Transatlantic Economic Partnership initiative, which is aimed at fostering transatlantic regulatory coordination and averting needless overlapping, and possibly even inconsistencies, in the rules applying to financial market players;
68. Believes that comparable regulatory responses in the main financial marketplaces are appropriate in the face of some new global challenges and risks; is aware that Community regulation has an impact on relations with third countries; urges the Commission to maintain intense dialogue and technical cooperation between the European Union and developing countries to ensure efficiency and quality of global legal and regulatory financial services frameworks;
69. points to the leading role of the European Union in the current work on the Solvency II framework, and expects that role to influence the global regulatory architecture and the standard-setting activities of the International Association of Insurance Supervisors;
70. Believes that the European Union should take a constructive, open-minded attitude to the economic rise of south-east Asia, and especially of India, China, and South Korea, and refrain from imposing any protectionist measures at Community or national level; supports initiatives to devise common global standards for financial services such as, for example, the annual meetings of the EU-China Round Table on Financial Services and Regulation;
o o o
71. Instructs its President to forward this resolution to the Council, the Commission, the European Central Bank, the Committee of European Securities Regulators, the Committee of European Banking Supervisors and the Committee of European Insurance and Occupational Pensions Supervisors.
Commission Directive 2004/72/EC of 29 April 2004 implementing Directive 2003/6/EC of the European Parliament and of the Council as regards accepted market practices, the definition of inside information in relation to derivatives on commodities, the drawing up of lists of insiders, the notification of managers' transactions and the notification of suspicious transactions (OJ L 162, 30.4.2004, p. 70).
– having regard to ILO Convention C87 on freedom of association and protection of the right to organise (1948), ILO Convention C98 on the right to organise and collective bargaining (1949) and ILO Recommendation R198 concerning the employment relationship (2006),
– having regard to Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation(1),
– having regard to its resolution of 6 September 2006 on a European Social Model for the future which reiterates the European Union's common values of equality, solidarity, non-discrimination and redistribution(2),
– having regard to Articles 136 to 145 of the EC Treaty,
– having regard to Articles 15, 20 and 27 to 38 of the Charter of Fundamental Rights of the European Union(3), in particular the rights to protection in the event of unjustified dismissal and fair and just working conditions,
– having regard to the European Social Charter,
– having regard to the Report of the High Level Group on the future of social policy in an enlarged European Union of May 2004,
– having regard to the Commission staff working document entitled 'Community Lisbon Programme: Technical implementation report 2006' and its implementation (SEC(2006)1379),
– having regard to the Commission Communication on the Social Agenda (COM(2005)0033),
– having regard to the national Lisbon reform programmes as presented by the Member States,
– having regard to the Commission Communication entitled "Global Europe: competing in the world"(COM(2006)0567),
– having regard to the Commission Communication on Integrated Guidelines for Growth and Jobs (2005-2008) (COM(2005)0141),
– having regard to the Presidency conclusions of March 2000, March 2001, March and October 2005 and March 2006,
– having regard to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP(4),
– having regard to its resolution of 23 March 2006 on demographic challenges and solidarity between generations(5),
– having regard to Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services(6),
– having regard to its resolution of 26 October 2006 on the application of Directive 96/71/EC on the posting of workers(7),
– having regard to the ILO Migrant Workers (Supplementary Provisions) Convention, 1975,
– having regard to the ILO Private Employment Agencies Convention, 1997,
– having regard to the ILO decent work agenda,
– having regard to the Commission Communication entitled 'Promoting decent work for all: The EU contribution to the implementation of the decent work agenda in the world" (COM(2006)0249),
– having regard to Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women(8),
– having regard to Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions(9),
– having regard to Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC)(10),
– having regard to Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work(11),
– having regard to Council Directive 94/45/EC of 22 September 1994 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees(12),
– having regard to Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions(13),
– having regard to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC – Annex : Framework agreement on part-time work(14),
– having regard to Rule 45 of its Rules of Procedure,
– having regard to the report of the Committee on Employment and Social Affairs and the opinions of the Committee on Economic and Monetary Affairs, the Committee on Internal Market and Consumer Protection and the Committee on Women's Rights and Gender Equality (A6-0247/2007),
A. whereas, at a time of globalisation and rapid technological progress, demographic change and significant growth of the services sector, improvement of European labour law where necessary to take account of the requirement for increasing flexibility demanded by employers and employees alike, as well as a desire for greater worker security, will ensure that both undertakings and workers are able to adapt successfully, thereby reinforcing the values of the European Social Model,
B. whereas economic growth is one of the fundamental conditions for sustainable employment growth, and whereas social policies, when appropriately designed, should not be regarded as a cost, and indeed can be a positive factor in the European Union's economic growth in line with achievement of the Lisbon agenda,
C. whereas the European Union is not only a free trade area but also a community of shared values and, as a consequence, labour law should reflect those values, and whereas the basic principles of labour law which have developed within Europe remain valid; whereas labour law provides legal certainty and protection for workers and employers by way of either legislation or collective agreement, or a combination of the two, and whereas it regulates the balance of power between worker and employer, and whereas the success of any changes in labour law will be greater if workers feel more secure, and such security also depends on how easy it is to find a new job,
D. whereas the freedom of movement of workers is one of the fundamental principles of the EU, as laid down in Article 39 of the EC Treaty, and whereas this fundamental freedom should go hand in hand with efficient implementation of the rules that ensure the principle of equal pay for equal work,
E. whereas new forms of non-standard contracts and flexible standard contracts (e.g. part-time contracts, fixed-term contracts, temporary contracts through employment agencies, recurring freelance contracts and project contracts), some of which are non-secure in nature, today are increasingly common in the European labour market,
F. whereas such forms of contractual relations, if accompanied by the necessary guarantees of employee security, can contribute towards providing businesses with the adaptability required in the new international context and at the same time towards responding to the specific needs of employees for a different balance between personal and family life and professional training,
G. whereas part-time employment has accounted for around 60 % of newly-created jobs in the European Union since 2000, and whereas 68 % of part-time workers are satisfied with their working hours, whereas, however, this degree of satisfaction is closely linked to the level of protection that is afforded to part-time workers by labour law and social security,
H. whereas part-time work is predominantly a feature of female employment, as it is often a compromise strategy that women follow because of the lack of accessible and affordable facilities for childcare and dependent persons care,
I. whereas existing EC legislation promoting gender equality has not achieved its aims to date and the gender pay gap and lack of provisions concerning the reconciliation of work and family life and public childcare services remain key concerns for European workers,
J. whereas temporary employment has grown faster in Member States where changes have been made to the relevant rules to encourage temporary employment and whereas non-standard employment may be beneficial if it suits the circumstances of workers and is voluntary; but whereas, at present, much non-standard employment is not chosen and many workers are falling outside the scope of fundamental labour and social rights, thereby undermining the principle of equal treatment,
K. whereas the services provided by temporary agencies have been excluded from the scope of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market(15),
L. whereas 60% of those who had taken up non-standard contractual arrangements in 1997 had standard contracts in 2003, indicating that 40% of non-standard workers still do not have full employment status after 6 years; whereas this concerns in particular young people who increasingly enter into employment via positions with working and social conditions which are much more insecure than average, and who increasingly risk remaining trapped on the margins of the labour market,
M. whereas the recent growth in non-standard contracts has brought with it differences in working conditions in terms of health and safety that can lead to poorer working conditions and higher accident rates,
N. whereas, given that inequalities generate direct and indirect economic costs and – on the contrary – equal treatment generates competitive advantages, the establishment of equal treatment constitutes a major strategic contribution to social and economic development; whereas, furthermore, the European Union cannot afford to dispense with the energy and the productive capacity of women, who make up half of the population,
O. whereas women are now confronted with a triple bind, i.e. to increase their labour market participation, to give birth to more children, and to assume more and more caring responsibilities within their families; whereas it is nearly always women who are required to make the compromises necessary to fit work around the family's needs and who experience high levels of stress and anxiety because of the combination of working and caring roles,
P. whereas it is a fact that hundreds of thousands of women have no choice but to accept irregular conditions of employment, because they are domestic workers outside their own household or have caring responsibilities for elderly family members,
Q. whereas workers who have non-standard contracts may be at higher risk than their colleagues in other forms of employment due to lack of training, not knowing about risks, and unawareness of rights,
R. whereas all workers should benefit from adequate employment security and protection, independently of their contractual arrangements,
S. whereas in a number of Member States collective bargaining helps the labour market to operate flexibly and is a key element of labour law as well as an essential regulatory tool; whereas conditions concerning industrial relations must be respected and traditions of industrial relations and level of trade union membership vary in the Member States; whereas Member States should promote social dialogue between social partners at all levels because this can be an effective means of helping to achieve appropriate reforms in labour law,
T. whereas action at European Union level must respect Member States' competence in the field of labour law and the principles of subsidiarity and proportionality; and whereas the Commission must propose initiatives when this is considered necessary to underpin a system of minimum social standards applicable throughout the Union, on the basis of the Community acquis,
U. whereas in order to meet the current economic challenges the European Union must do its utmost to ensure the stability of the Member States" labour markets, respond to the large-scale redundancies in certain sectors and provide its citizens with a higher level of health and safety in the workplace than before, which is essential for maintaining living conditions in harmony with human dignity and fundamental European values,
V. whereas the high level of unemployment in Europe is a failure which calls for actions making it easier for more people to enter the labour market, increasing mobility and helping workers to change jobs without sacrificing security; whereas the priority must be to create a climate which will foster the creation of additional, new, better quality jobs;
1. Welcomes a new approach to labour law that aims to cover all workers regardless of their contractual situation;
2. Welcomes discussions on the need to improve labour law to meet the challenges of the 21st century, which mean that employers and employees alike require greater flexibility, and the need to provide greater security than may currently be associated with non-standard forms of employment, and to enhance the protection of vulnerable workers, in order to create more and better jobs and greater social cohesion, thereby helping to achieve the goals of the Lisbon Strategy; considers that improving labour law should be consistent with the principles of the Charter of Fundamental Rights, with particular reference to Title IV, and must respect and safeguard the values of the European social model and established social rights;
3. Welcomes the wide variety of labour traditions, contracts and business models existing in labour markets;
4. Calls for the creation of flexible and secure contractual arrangements in the context of modern organization of work;
5. Considers that among the priorities for labour law reform within Member States are:
a)
facilitating the transition between various situations of employment and unemployment;
b)
ensuring appropriate protection for workers in non-standard forms of employment;
c)
clarifying the situation of dependent employment and the grey areas between self-employment and employees with a dependent employment relationship;
d)
taking action against undeclared work;
6. Stresses the social and economic priority of getting more people into employment in order for the European economy to be able to compete globally and to fulfil the promises of social security; underlines that the high unemployment in Europe today undermines wealth and future prosperity as well as European competitiveness and, even more importantly, creates social segregation;
7. Regrets, however, that the social partners were not consulted as provided for by Article 138 of the EC Treaty, considering that the Commission's Green Paper entitled 'Modernising labour law to meet the challenges of 21st century' (COM(2006)0708) clearly has important implications for the social policy field;
8. Considers that, if labour law is to meet the challenges of the 21st century, it must focus to a large extent on employment security throughout a worker's life rather than protecting particular jobs, making it easier both to enter and to stay in the labour market and to change from unemployment to employment and from one job to another through the use of active labour policies focused both on human capital development to enhance employability and on creating a supportive business climate as well as improving the quality of jobs;
9. Considers that the labour relations which characterise citizens" employment and professional activity have been subject to profound changes over the course of the last decade, notes that the permanent full-time contract is the common form of the working relationship and as such should be seen as the reference for a coherent and consistent application of the principle of non-discrimination, therefore believes that European labour law should recognise employment contracts of an indefinite duration as the general form of employment where adequate social and health protection is provided and respect for fundamental rights is ensured;
10. In this respect, acknowledges the need for working time arrangements to be sufficiently flexible to meet the needs of employers and employees and to enable people to better balance work and family life as well as to safeguard competitiveness and improve the employment situation in Europe, without neglecting the health of employees;
11. Strongly disagrees with the analytical framework presented in the Green Paper, which claims that the standard indefinite employment contract is outdated, increases labour market segmentation and the gap between "insiders" and "outsiders", and must therefore be regarded as an obstacle to employment growth and improved economic dynamism;
12. Stresses that labour legislation is only efficient, fair and strong if it is implemented by all Member States, applied equally to all actors and controlled on a regular basis and in an efficient manner; requests that within the "Better legislation" initiative the Commission should strengthen its role as Guardian of the Treaty concerning the implementation of social and employment legislation;
13. Points out that recent OECD and other studies have shown that there is no evidence for the claim that reducing dismissal protection and weakening standard employment contracts facilitates employment growth; points out that the example of the Scandinavian countries shows clearly that a high level of dismissal protection and employment standards is fully compatible with high employment growth;
14. Notes that certain forms of non-standard contracts, depending on how well they are embedded in labour and social security law, as well as the provision of lifelong learning and training opportunities, can contribute both to improving the European Union's economic competitiveness and also to catering for different needs of workers, bearing in mind the stage of life they are at and their job prospects; at the same time recognises that non-standard forms of work must go hand in hand with support for workers who find themselves in situations of transition from one job to another, or from one employment status to another; also notes that in order to make this transition rapid and sustainable, it is necessary to focus on active intervention allowing workers who re-enter the labour market to be entitled to some level of income support during the period strictly necessary for them to become more employable through training and requalification;
15. Stresses that the Green Paper should focus on labour law itself;
16. Notes the Commission's focus on individual labour law, and urges the Commission to promote collective labour law as one of the means of increasing both flexibility and security for workers and employers;
17. Firmly believes that any form of employment, whether non-standard or otherwise, should carry with it a core of rights regardless of the specific employment status, which should include: equal treatment, workers" health and safety protection and provisions on working/rest time, freedom of association and representation, collective bargaining, collective action, and access to training; at the same time stresses that these matters should be adequately enforced at Member State level, taking into account the different traditions and social and economic circumstances in each country; underlines that Community legislation is not in contradiction to national legislation, but should be viewed as complementary;
18. Notes that a fundamental part of labour law in many Member States, and as enshrined in the Treaty, is the right to take industrial action, and that the Commission has stated in proceedings before the Court of Justice that the specific form of some Nordic collective actions is in accordance with the EC Treaty, and requests the Commission to respect collective agreements as a specific type of labour law as recognised by the Court of Justice;
19. Requests that all workers have access to the same level of protection and that certain groups are not excluded by default from the broadest level of protection, such as is currently often the case for seafarers, workers on vessels and offshore workers as well as workers in road transport; requests that efficient legislation should apply to all persons regardless of the place where they work;
20. Considers that excessive administrative burdens can deter employers from taking on new workers even during times of economic growth, thereby worsening job prospects and preventing workers from entering the labour market; stresses that job creation is a priority European objective in accordance with the decisions taken by the Council in Lisbon in 2000;
21. Notes the growing informal economy and especially the labour exploitation of undocumented workers and considers that the best ways to combat this phenomenon are to focus on instruments and mechanisms to tackle exploitation, including more and better enforcement of labour law and labour standards and to make legal employment easier and focus on fundamental human rights of workers; calls on Member States to bring forward legislation to prevent the exploitation of vulnerable workers by gangmasters and to sign and ratify the UN Convention on the Protection of the Rights of All Migrant Workers and their Families and to sign and ratify the Council of Europe Convention on Action Against Trafficking in Human Beings;
22. Notes with great concern that the Green Paper, while recognising that the current labour market conditions create gender inequality, for example in terms of the gender pay gap and occupational and sectoral segregation, totally ignores the obligations and responsibilities under the Commission Communication 'A Roadmap for equality between women and men' (COM(2006)0092);
23. Notes, again with great concern, that the Green Paper, although recognising that women face an imbalance between their professional and private lives, ignores the urgent need for action to reconcile professional and private life with demographic challenges, as is necessary to comply with the European Pact for Gender Equality and the Commission Communication on the demographic future of Europe (COM(2006)0571);
24. Welcomes the wide variety of labour traditions, contractual forms and business models existing in labour markets;
25. Calls for the creation of flexible and secure contractual arrangements in the context of modern work organizations;
26. Highlights that small and medium-sized enterprises (SMEs) are recognised as playing a major role in creating and increasing employment in Europe as well as fostering social and regional development; believes therefore that it is vital to increase the role of SMEs in creating extra jobs by means of improving labour law;
27. Considers that for more effective application of Community law it is necessary to address the deficiencies of the current social dialogue in some Member States given the absence of workers' representation in certain sectors, where most economic activity is undertaken by SMEs employing fewer than 10 people (this absence of representation being particularly pronounced in some new Member States);
28. Observes that the current social dialogue structure fails to include many of the flexible workers discussed in the Green Paper, who are neither employers nor employees, and who must be consulted in addition to any discussions between the social partners;
29. Endorses the Council's aim of mobilising all appropriate national and Community resources to develop a skilled, trained and adaptable workforce and labour markets responsive to the challenges stemming from the combined impact of globalisation and of the ageing of European societies;
30. Notes that due to labour market segmentation, where job security is low and employment is more unstable, in many non-standard contracts there is little access to education and training, occupational pensions and professional development provided, and in general underinvestment in human capital; underlines that this increases economic insecurity and creates opposition to change and globalisation in general;
31. Notes that, in many Member States, because no adequate social security exists, it is impossible to obtain a pension in the second pillar, bringing extra pressure to bear on old-age pensions in the first pillar;
32. Believes that a combination of individual motivation, employers' support, accessibility and availability of facilities are the most important factors as regards participation in the process of lifelong learning and calls for the development of the education sector and schools which meet labour market requirements and workers" and employers" individual expectations; stresses the need for proper linking of professional careers and school syllabuses;
33. Points to the urgent need to improve the educational level of the European Union population and urges the Commission, Member States and the social partners to invest in lifelong learning and the development of human capital as the most effective means of overcoming long-term unemployment, in which connection the development of skills and the acquisition of qualifications is in the general interest, as the European social partners jointly emphasise in the 2006 Framework of Action for the Lifelong Development of Competences and Qualifications;
34. Is of the opinion that reforms of labour law should facilitate companies' investment in the skills of their workers, stimulate workers to upgrade their own skills and guarantee the intervention of social security systems to ensure such an approach;
35. Stresses the importance of arriving at a degree of consistency in the field of labour law, which may be achieved though directives and collective agreements and the open method of coordination, urges the Commission to take account of the vast differences that exist between national labour markets and the Member States' competency in this area, but recalls the goal of creating a competitive, innovative and inclusive Europe and more and better jobs;
36. Notes the lack of proper implementation and enforcement of existing Community legislation, and calls on the Commission to ensure coordination between the relevant national employment inspectorate bodies; stresses the need for Member States to bring their health and safety legislation into line with Community legislation;
37. Considers that the rights of cross-border workers could be adequately protected under the relevant legislation if it were effectively implemented and that the aim of adopting a single definition of a worker and a self-employed person under Community law is extremely complex because of the very different social and economic realities and traditions in the individual Member States; at the same time, considers that there needs to be an initiative aimed at achieving the level of convergence necessary to guarantee that the implementation of the Community acquis is coherent and more efficient; this convergence should respect the rights of the Member States to determine the existence of an employment relationship;
38. Acknowledges that business start-ups and micro-entrepreneurs may be economically dependent, if they initially participate in the economy with one client; takes the view therefore that genuinely self-employed people when dependent on one client should neither be assigned to a third category intermediate between self-employment and employment nor classified as employees;
39. Reiterates its position, in compliance with the employment guidelines laid down by the Court of Justice, according to which the definition of worker should be based on the de facto situation at the place and time of work;
40. Calls on Member States to promote the implementation of the 2006 ILO Recommendation on the employment relationship;
41. Asks the Member States to note that the abovementioned ILO Recommendation provides that employment law should not interfere with genuine commercial relationships;
42. Urges that the open method of coordination be used in the sphere of employment policy and social policy as a useful instrument for exchanging information on best practice so as to respond to joint challenges in a flexible and transparent manner, taking into account the diverse conditions which are of crucial importance for labour markets in individual Member States;
43. Recommends to the Member States, the Council and the Commission that, within the framework of the open method of coordination, they exchange information on best practices concerning the flexible organisation of working time and take account of innovative working time arrangements that strike a good balance between work and family life;
44. Calls on the Commission to continue to collect and analyse information on national labour markets so as to ensure that exchanges of information on good practice in connection with the employment policies pursued in individual Member States are based on reliable data, particularly homogeneous and comparable statistics;
45. Calls on the Member States to review and adapt social security systems and to complement active labour market policies, particularly training and lifelong learning with a view to new realities of work supporting professional transitions and re-entry into the labour market to prevent any unnecessary dependence on benefits and work in the informal sector;
46. Strongly condemns any abusive replacement of regular employment with new forms of employment without any imperative economic necessity, only the aim of maximising short-term profits to a far greater extent than normal, at the expense of the general public, employees and competitors; stresses that any such action violates the European social model, as it lastingly destroys the consensus, fairness and trust between employers and employees; urges Member States and the two sides of industry to take action in this regard in order to halt any irresponsible abuses;
47. Recalls that flexicurity is defined as combining flexibility and security in the job market in a way that helps increase both productivity and the quality of jobs by guaranteeing security, while at the same time allowing firms the flexibility needed to create jobs in response to the changing needs of the market; is of the opinion that flexibility and security requirements are not contradictory and are mutually reinforcing;
48. Stresses that flexicurity can only be achieved by effective and modern labour law that reflects the changing realities of work; notes that collective bargaining and strong social partners are an important part of the flexicurity approach; believes however that there are various models of flexicurity; also notes that a common approach should be based on combining firms' and workers' ability to adapt with a sufficient level of social protection, social security and unemployment benefits, active labour market policies and training/ lifelong learning opportunities; considers that broad welfare provisions and universal access to services such as childcare and other dependents contribute positively to these aims;
49. Believes that the definition of flexicurity in the Commission's Green Paper is too narrow; notes however that the Commission will publish a communication on flexicurity;
50. Believes that older workers should be able to remain in the workforce on a voluntary and flexible basis, supported by appropriate training and healthcare at work; highlights the urgent need for positive action to encourage older workers to re-enter the labour market, and the need for more flexibility in the choice of pension and retirement schemes;
51. Calls on the Commission and the Member States to recognise that labour law has an immense influence on the behaviour of undertakings, and that their confidence in stable, clear and sound provisions is a key element when taking decisions to create more and better jobs and calls therefore on the Member States to implement and enforce properly all of the existing Community legislation affecting labour markets;
52. Calls on the Member States to strengthen rights for parental leave and childcare provisions at both national and European level for both men and women;
53. Welcomes the strategy outlined to fight against undeclared work and the underground economy, which – although present to a varying extent in the different Member States – damages the economy, leaves workers unprotected, is detrimental to consumers, reduces tax revenues and leads to unfair competition between firms; shares the Commission's approach to combating undeclared work through strong coordination between government enforcement agencies, labour inspectorates and/or trade unions, social security administrations and tax authorities, and calls on Member States to use innovative methods based on indicators and benchmarks specific to the different business sectors in order to fight against fiscal erosion;
54. Calls on the Member States and the Commission to launch an information campaign directed at employers and workers aimed at drawing attention to the applicable EC minimum rules and regulations and to the adverse effects clandestine work can have on national social security systems, public finances, fair competition, economic performance and on workers themselves;
55. Calls for special attention to be directed to young workers who are most engaged in temporary work to ensure that their lack of experience on the job does not lead to work-related accidents; encourages Member States to exchange good practice in this regard and calls on temporary employment agencies to raise awareness among employers and the young workers themselves;
56. Highlights the role of the social partners in informing and training workers and employers on their rights and obligations in an employment relationship and on the enforcement of existing law in this area, and therefore calls on the Commission to promote technical support for social partners and to encourage them to share knowledge and experience in order to improve working conditions;
57. Highlights the valuable role played by the social partners which already achieved some success in reforming labour markets, namely through the conclusion of agreements on parental leave, part-time work and fixed-term contracts, as well as telework and lifelong learning;
58. Believes that the Member States must demonstrate a spirit of openness in the dialogue with the social partners on the subject of modernising labour law and adapting it to the challenges of the 21st century, take account of the social partners" arguments and respond to their concerns;
59. Believes that the Commission should consult not only with prescribed social partners but with all organisations and individuals affected by labour legislation; notes in particular that SMEs are currently under-represented in the consultation process, as are workers who do not belong to a trade union;
60. Points to the positive role of collective bargaining at national, sectoral and company level can play in employment relationships and work organisation, increasing the productivity of firms and improving working conditions, thereby encouraging growth in employment, and points to the possibility of changing arrangements so as to support the role of collective bargaining and open up such bargaining for solutions close at company level which benefit employees and employers;
61. Calls on the Commission and the Member States, under the "Better legislation" initiative, to cooperate constantly with the social partners, and where appropriate other, relevant, representative civil society bodies on any legislation in the labour law or social policy fields, with a view to simplifying administrative procedures facing SMEs and new firms in particular, making their financial situation easier to increase their competitiveness in order to create jobs;
62. Stresses the need to regulate joint and several liability for general or principal undertakings, in order to deal with abuses in the subcontracting and outsourcing of workers and to set up a transparent and competitive market for all companies on the basis of a level playing field regarding respect for labour standards and working conditions; in particular calls on the Commission and the Member States to clearly establish who is responsible for compliance with labour law and for paying the associated wages, social security contributions and taxes in a chain of subcontractors;
63. Expresses its deep conviction that creating insecure, poorly-paid jobs is not an appropriate response to the relocation trend affecting more and more sectors; considers, on the contrary, that it is investment in research, development, training and lifelong learning which will be able to boost those sectors which are currently suffering from a lack of competitiveness;
64. Calls on the Commission to facilitate the establishment of a dispute settlement system, to enable the European agreements between social partners to develop into an effective and flexible tool that can foster a more effective regulatory approach at European level;
65. Calls on the Member States to remove the restrictions on access to their labour markets and thus improve worker mobility within the EU, thereby enabling the goals of the single market and the Lisbon Strategy to be achieved more swiftly;
66. Instructs its President to forward this resolution to the Council and Commission, and the Parliaments of the Member States and candidate countries.
Posting of workers in the framework of the provision of services
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European Parliament resolution of 11 July 2007 on the Commission Communication on the posting of workers in the framework of the provision of services: maximising its benefits and potential while guaranteeing the protection of workers
– having regard to Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services(1),
– having regard to the Commission Communication of 4 April 2006 on 'Guidance on the posting of workers in the framework of the provision of services' (COM(2006)0159),
– having regard to the Commission Communication of 13 June 2007 on the 'Posting of workers in the framework of the provision of services: maximising its benefits and potential while guaranteeing the protection of workers' (COM(2007)0304) ('Communication on the posting of workers'),
– having regard to its resolutions on the posting of workers of 15 January 2004(2) and 26 October 2006(3),
– having regard to Question for Oral Answer B6-0132/2007 put to the Commission on the Communication on the posting of workers,
– having regard to Rule 108(5) of its Rules of Procedure,
A. whereas full, consistent, implementation of Directive 96/71/EC has proved to be problematic due to a lack of proper implementation in the Member States and coordination among their competent authorities,
B. whereas the previous Commission Communications on this issue were considered insufficient by Parliament and have not solved the problems encountered by the Directive; whereas divergent points of views between the Commission and Parliament remain on issues such as the availability of a legal representative of the posting company in the host country and the keeping of documents at the workplace to control compliance with the Directive,
C. whereas the protection of posted workers is of the utmost importance in guaranteeing the free movement of workers and preserving working conditions as provided for in the Treaty, and should be regarded as an overriding reason of general interest,
D. whereas the case law of the Court of Justice states that measures falling within the posting of workers Directive can be justified if motivated by public-interest objectives, such as the protection of workers,
1. Is convinced that full implementation of Directive 96/71/EC is paramount for achieving the correct balance between the freedom to provide services and worker protection, in particular against social dumping;
2. Is convinced that in its guidance and legal interpretation, the Commission goes in some cases beyond what has been established by the case law of the European Court of Justice;
3. Calls on the Commission to fully take into account the variety of labour market models existing in the European Union when it comes to adopting any measure on posting; calls on the Commission to respect that some Member States require the availability of a mandated representative with legal capacity in the host country in order to properly implement and monitor the Directive; this could be any person that has been provided with a clear mandate from the company (including a worker);
4. Considers that cooperation and exchange of information among Member States has been insufficient to date, and that addressing this problem is a prerequisite for the successful implementation of the Directive; takes the view that the Commission should be more precise when providing guidance to the Member States on control measures acceptable under the Directive to protect posted workers;
5. Considers that the checks and controls carried out by host Member States under the Directive, notably the obligation to keep certain documents in the host country, must be seen as an important tool to guarantee the protection of the rights of posted workers; considers, however, that these measures should be strictly proportional and not constitute hidden obstacles to exercising the right of free movement;
6. Points out that existing case-law recognises the right of the host Member State to require certain documents to verify compliance with the employment conditions laid down in the Directive;
7. Invites the Commission to find the right mix of guidance measures addressed to both companies and Member States so that they have a better understanding of what they are allowed to do under the Directive and relevant case-law; requests the Commission actively to support close cooperation between inspection bodies in the Member States by providing a permanent European platform for cross-border cooperation; welcomes in this respect the future setting-up by the Commission of a high-level group in order to support and assist the Member States in identifying and exchanging good practices and to formally involve social partners on a regular basis;
8. Takes the view that it would be appropriate for the social partners in those Member States where the Directive is implemented through collective agreements to gain direct access to information about the posting companies, so that they can exercise the supervision which in other Member States is subject to authorities that have such access to company information;
9. Supports the Commission conclusion to the effect that the host Member State should be able to require a prior declaration by the service provider to enable it to verify compliance with the employment conditions;
10. Instructs its President to forward this resolution to the Commission and the Council.