European Parliament resolution on 24 April 2009 on women's rights in Afghanistan

P6_TA(2009)0309 RC-B6-0197/2009

The European Parliament,

–   having regard to its previous resolutions on Afghanistan, in particular that of 15 January 2009 on the budgetary control of EU funds in Afghanistan(1),

–   having regard to the joint declaration issued by its Delegation for relations with Afghanistan and the Wolesi Jirga (the lower house of the Afghan Parliament) on 12 February 2009,

–   having regard to the Final Declaration of the International Conference on Afghanistan held in The Hague on 31 March 2009,

–   having regard to the NATO Summit Declaration on Afghanistan made by the Heads of State and Government participating in the meeting of the North Atlantic Council held in Strasbourg/Kehl on 4 April 2009,

–   having regard to the Joint Statement on legislation in Afghanistan issued by the Foreign Ministers of the EU Member States and the United States on 6 April 2009,

–   having regard to Rule 115(5) of its Rules of Procedure,

A.   whereas Afghanistan is a party to a number of international agreements on human rights and fundamental freedoms, in particular the Convention on the Elimination of All Forms of Discrimination against Women and the International Convention on the Rights of the Child,

B.   having regard to the Afghan Constitution of 4 January 2004, in particular Article 22 thereof, which stipulates that "the citizens of Afghanistan, men and women, have equal rights and duties before the law", and whereas that article is consistent with the international treaties ratified by Afghanistan,

C.   having regard to the Afghan Family Code, which, since the late 1970s, has contained a number of provisions which grant women rights in the areas of health and education, and whereas the Code is currently being revised in order to bring it into line with the 2004 Constitution,

D.   whereas an Independent Human Rights Commission was set up in June 2002, on the basis of the Bonn agreement of 5 December 2001, and whereas the Commission, under the chairmanship of Sima Samar, plays a key role in defending human rights,

E.   whereas the new draft law on the personal status of Shiite women, which was recently approved by both chambers of the Afghan Parliament, places severe restrictions on women's freedom of movement, denying them the right to leave their homes except for a "legitimate purpose", requires women to submit to the sexual desires of their husbands, thus legitimising "marital rape", and promotes forms of discrimination against women in the areas of marriage, divorce, inheritance and access to education which are not consistent with international human rights standards, in particularly standards regarding women's rights,

F.   whereas this draft law, which would affect between 15 and 20% of the Afghan population, has yet to come into force, since it has not yet been published in the Government Official Journal, although it has already been signed by the President of Afghanistan, Hamid Karzai,

G.   whereas, following the criticism it prompted both in Afghanistan and abroad, this draft law has been referred back to the Afghan Ministry of Justice so that the conformity of the text with the undertakings given by the Afghan Government in international agreements on women's rights and human rights in general and in the Constitution can be verified,

H.   whereas violence against activists, particularly those defending women's rights, continues to this day, and whereas many activists have been the victims of militants and radical groups, these victims include Sitara Achakzai, an Afghan women's rights defender and member of the Kandahar provincial council, who was killed outside her home; Gul Pecha and Abdul Aziz, who were killed after being accused of immoral acts and condemned to death by a council of conservative clerics; and Malai Kakar, the first woman police officer in Kandahar, who ran the police department responsible for investigating crimes against women in that city,

I.   whereas the 23 year-old Afghan journalist Perwiz Kambakhsh was sentenced to death for circulating an article about women's rights under Islam, and whereas, after strong international protests, that sentence was commuted to 20 years" imprisonment,

J.   whereas threats and intimidation against women who are active in public life or who work outside the home continue to be reported and confirmed by the UN; and whereas there have been recent reports about the difficulties in increasing the participation of girls in the education system, which is opposed by militants and radicals,

K.   whereas a number of cases have been reported in recent years of young women who have deliberately set themselves on fire in order to escape forced marriages or conjugal violence,

1.  Calls for the revision of the draft law concerning the personal status of Shiite women in Afghanistan, since it is clear that the substance of that draft law is not consistent with the principle of equality between men and women, as laid down in the Afghan Constitution and in international agreements;

2.  Underlines the dangers of adopting legislation which applies only to certain sections of the population and which, by definition, promotes discrimination and injustice;

3.  Urges the Afghan Ministry of Justice to repeal all laws which give rise to discrimination against women and which breach the international treaties to which Afghanistan is a party;

4.  Regards it as essential for the democratic development of the country that Afghanistan should commit itself to safeguarding human rights in general, and women's rights in particular, given that women play a crucial role in the development of the country and must be able to enjoy their fundamental and democratic rights to the full; reiterates its support for the fight against all forms of discrimination, including on grounds of belief and gender;

5.  Points out that the European Union's strategy document on Afghanistan for the period 2007-2013 identifies gender equality and women's rights as key aspects of Afghanistan's national development strategy;

6.  Salutes the courage of and expresses its support for the Afghan women who demonstrated in Kabul against the new draft law; condemns the acts of violence perpetrated against them during those demonstrations, and calls on the Afghan authorities to guarantee their protection;

7.  Condemns the murders of activists working to promote human rights and the emancipation of Afghan women, in particular the recent assassination of the regional parliamentarian Sitara Achikzai;

8.  Is appalled to learn that the Afghan Supreme Court has upheld the 20-year prison sentence which Perwiz Kambakhsh received on a blasphemy charge and calls on President Karzai to pardon Mr Kambakhsh and authorise his release from prison;

9.  Calls on the Afghan authorities, including local authorities, to take all possible steps to protect women against sexual violence and other forms of gender-related violence and to bring the perpetrators of such acts to justice;

10.  Considers that the advances in the field of equality between men and women achieved as a result of the great efforts made in recent years should on no account be sacrificed to pre-electoral bargaining between parties;

11.  Encourages women to stand in the presidential election to be held on 20 August 2009 and insists that Afghan women should be able to participate fully in the decision-making process and that they should also have the right to be elected and to be appointed to senior state positions;

12.  Calls on the the Council, the Commission and the Member States to continue to raise the issue of the law on the personal status of Shiite women and any discrimination against women and children, emphasising that they are unacceptable and incompatible with the long-term commitment made by the international community to assisting Afghanistan in its rehabilitation and reconstruction efforts;

13.  Calls on the Commission to provide funding and programming assistance directly to the Afghan Ministry of Women's Affairs and to promote gender mainstreaming in all its development policies in Afghanistan;

14.  Calls on the United Nations Development Fund for Women (Unifem) to be especially vigilant;

15.  Instructs its President to forward this resolution to the Council, the Commission, the Government and Parliament of the Islamic Republic of Afghanistan and to the President of the Independent Human Rights Commission.

(1) Texts Adopted, P6_TA(2009)0023.

European Parliament resolution of 24 April 2009 on support for the Special Court for Sierra Leone

P6_TA(2009)0310 RC-B6-0242/2009

The European Parliament,

–   having regard to its previous resolutions on this subject, including that of 6 September 2007 on the financing of the Special Court for Sierra Leone(1),

–   having regard to the Cotonou Agreement between the European Community and the ACP countries, and the commitment by parties to the Agreement to peace, security and stability, respect for human rights, democratic principles and the rule of law,

–   having regard to Rule 115(5) of its Rules of Procedure,

A.   whereas the Special Court for Sierra Leone (SCSL) was established in 2000 by the United Nations and the Government of Sierra Leone pursuant to UN Security Council Resolution 1315 to bring to justice those who had committed serious violations of international humanitarian law, notably war crimes and crimes against humanity,

B.   whereas the SCSL is setting a number of important precedents in international criminal justice in that it is the first international court to be funded by voluntary contributions, the first to be established in the country where the alleged crimes took place and, in the case of former Liberian President, the first to indict a sitting African head of state for war crimes and crimes against humanity,

C.   whereas the mandate of the SCSL will end in 2010, and the Government of Sierra Leone has indicated that it is not in a position to enforce the sentences of the persons convicted by the SCSL,

D.   whereas the enforcement of sentences is an essential element of international justice, which plays an important role as regards peace and the further development of the rule of law in the country,

E.   whereas it is currently problematic, from a political, security and institutional perspective, for those convicted to serve their sentences in Sierra Leone itself,

F.   whereas the SCSL has concluded agreements with states including UK, Sweden and Austria to ensure that some of the convicted persons serve their sentences in these countries, and whereas more agreements are needed to ensure that all persons already convicted, and those that are standing trial and may face convictions, actually serve their sentences,

G.   whereas failure to find appropriate detention facilities for persons convicted of the most egregious crimes imaginable would seriously undermine the efforts of the international community to effectively implement the fight against impunity,

H.   recalling that the fight against impunity is one of the cornerstones of the European Union's human rights policy and that the international community bears responsibility for supporting the accountability mechanisms put in place,

I.   whereas other tribunals and courts, such as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda are facing similar problems, and whether other international bodies such as the International Criminal Court, the Special Tribunal for Lebanon and the Extraordinary Chambers in the Courts of Cambodia are likely to face the same problem in the foreseeable future without a stronger commitment by states to support the enforcement of international justice,

J.   whereas international courts and tribunals are all playing important roles for peace and justice in their respective regions, and each is committed to ensuring a lasting legacy and to contributing to the further development of the rule of law in the region in which the crimes were committed,

1.  Welcomes the progress made by international courts and tribunals in bringing to trial those responsible for atrocities committed, and believes that these trials send a clear message to leaders around the world and to other war criminals that egregious human rights abuses will no longer be tolerated with impunity;

2.  Calls on the Council and the Member States to find a solution together with the SCSL in order to ensure that the persons convicted serve their sentences, since without such a solution the effort of the SCSL and the credibility of the international community, including the Union, will be severely undermined;

3.  Calls on all Member States to increase their contribution to the work of the international courts and tribunals as they seek to finalise a sustainable solution for the enforcement of sentences, whether by concluding agreements directly with the said institutions for the enforcement of sentences in the Member States' jurisdictions or by helping them to find alternative solutions to ensure the enforcement of sentences in the regions themselves;

4.  Calls on the Member States and other international institutions to provide further financial assistance to the SCSL with a view to enabling those convicted by the SCSL to serve out their sentences in countries that have the capacity to enforce sentences in accordance with international standards but lack the financial means to do so;

5.  Considers that a lack of assistance and support will put the work of international courts and tribunals at great risk as they will not be able to ensure that the persons convicted serve the sentences imposed;

6.  Calls for a comprehensive study evaluating the work done by international criminal tribunals, drawing lessons from it and putting forward recommendations on how to improve their functioning and future financing;

7.  Instructs its President to forward this resolution to the Council, the Commission, the governments and parliaments of the EU Member States, the Special Court for Sierra Leone, the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon, the UN Security Council, the member states of the African Union and the Co-Presidents of the ACP-EU Joint Parliamentary Assembly.

(1) OJ C 187 E, 24.7.2008, p. 242.

European Parliament resolution of 24 April 2009 on the humanitarian situation of Camp Ashraf residents

P6_TA(2009)0311 RC-B6-0248/2009

The European Parliament,

–   having regard to the Geneva Conventions and notably Article 27 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War,

–   having regard to the Geneva Convention of 1951 relating to the Status of Refugees and the 1967 Protocol thereto,

–   having regard to the Status of Forces Agreement between the US and Iraqi Governments, signed in November 2008,

–   having regard to its resolution of 12 July 2007 on the humanitarian situation of Iraqi refugees(1) and its resolution of 4 September 2008 on executions in Iran(2), which include references to Camp Ashraf residents having legal status as protected persons under the Fourth Geneva Convention,

–   having regard to Rule 115(5) of its Rules of Procedure,

A.   whereas Camp Ashraf in Northern Iraq was established during the 1980s for members of the Iranian opposition group People's Mujahedin Organisation of Iran (PMOI),

B.   whereas in 2003 US forces in Iraq disarmed Camp Ashraf's residents and provided them with protection, those residents having been designated "protected persons" under the Geneva Conventions,

C.   whereas in a letter dated 15 October 2008 the UN High Commissioner for Human Rights urged the Iraqi Government to protect Camp Ashraf residents from forcible deportation, expulsion or repatriation in violation of the non-refoulement principle, and to refrain from any action that would endanger their life or security,

D.   whereas following the conclusion of the US/Iraqi Status of Forces Agreement, control of Camp Ashraf was transferred to the Iraqi security forces as of 1 January 2009,

E.   whereas, according to recent statements reportedly made by the Iraqi National Security Advisor, the authorities intend gradually to make the continued presence of the Camp Ashraf residents "intolerable", and whereas he reportedly also referred to their expulsion/extradition and/or their forcible displacement inside Iraq,

1.  Urges the Iraqi Prime Minister to ensure that no action is taken by the Iraqi authorities which violates the human rights of the Camp Ashraf residents and to clarify the Iraqi government's intentions towards them; calls on the Iraqi authorities to protect the lives and the physical and moral integrity of the Camp Ashraf residents and to treat them in accordance with obligations under the Geneva Conventions, in particular by refraining from forcibly displacing, deporting, expelling or repatriating them in violation of the principle of non-refoulement;

2.  Respecting the individual wishes of anyone living in Camp Ashraf as regards his or her future, considers that those living in Camp Ashraf and other Iranian nationals who currently reside in Iraq having left Iran for political reasons could be at risk of serious human rights violations if they were to be returned involuntarily to Iran, and insists that no person should be returned, either directly or via a third country, to a situation where he or she would be at risk of torture or other serious human rights abuses;

3.  Calls on the Iraqi Government to end its blockade of the camp, to respect the legal status of the Camp Ashraf residents as protected persons under the Geneva Conventions, and to refrain from any action that would endanger their life or security, i.e. to afford them full access to food, water, medical care and supplies, fuel, family members and international humanitarian organisations;

4.  Calls on the Council, the Commission and the Member States, together with the Iraqi and US Governments, the UN High Commissioner for Refugees and the International Committee of the Red Cross, to work towards finding a satisfactory long-term legal status for Camp Ashraf residents;

5.  Instructs its President to forward this resolution to the Council, the Commission, the Governments and Parliaments of the Member States, the UN High Commissioner for Refugees, the International Committee of the Red Cross, the Government of the United States of America and the Government and Parliament of Iraq.

(1) OJ C 175 E, 10.7.2008, p. 609. (2) Texts adopted, P6_TA(2008)0412.

European Parliament legislative resolution of 24 April 2009 on the proposal for a Council decision concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities (COM(2008)0530 – C6-0116/2009 – 2008/0170(CNS))

P6_TA(2009)0312 A6-0229/2009

(Consultation procedure)

The European Parliament,

–   having regard to the proposal for a Council decision (COM(2008)0530),

–   having regard to the United Nations Convention on the Rights of Persons with Disabilities ("the Convention"), adopted by the United Nations General Assembly on 13 December 2006,

–   having regard to Articles 13(1) and 300(2), first subparagraph, of the EC Treaty,

–   having regard to Article 300(3), first subparagraph, of the EC Treaty, pursuant to which the Council consulted Parliament (C6-0116/2009),

–   having regard to Rules 51 and 83(7) of its Rules of Procedure,

–   having regard to the report of the Committee on Employment and Social Affairs and the opinion of the Committee on Women's rights and Gender Equality (A6-0229/2009),

1.  Approves conclusion of the Convention;

2.  Instructs its President to forward its position to the Council and the Commission, and the governments and parliaments of the Member States.

European Parliament legislative resolution of 24 April 2009 on the proposal for a Council decision concerning the conclusion, by the European Community, of the Optional Protocol to the United Nations Convention on the Rights of Persons with Disabilities (COM(2008)0530 – C6-0117/2009 – 2008/0171(CNS))

P6_TA(2009)0313 A6-0230/2009

(Consultation procedure)

The European Parliament,

–   having regard to the proposal for a Council decision (COM(2008)0530),

–   having regard to the Optional Protocol to the United Nations Convention on the Rights of Persons with Disabilities ("the Optional Protocol"), adopted by the United Nations General Assembly on 13 December 2006,

–   having regard to Articles 13(1) and 300(2), first subparagraph, of the EC Treaty,

–   having regard to Article 300(3), first subparagraph, of the EC Treaty, pursuant to which the Council consulted Parliament (C6-0117/2009),

–   having regard to Rules 51 and 83(7) of its Rules of Procedure,

–   having regard to the report of the Committee on Employment and Social Affairs and the opinion of the Committee on Women's rights and Gender Equality (A6-0230/2009),

1.  Approves conclusion of the Optional Protocol;

2.  Calls on the Member States and the Commission to report every three years to the Council and to Parliament on the status of implementation of the Optional Protocol in accordance with their respective fields of competence;

3.  Instructs its President to forward its position to the Council and the Commission, and the governments and parliaments of the Member States.

European Parliament recommendation to the Council of 24 April 2009 on the problem of profiling, notably on the basis of ethnicity and race, in counter-terrorism, law enforcement, immigration, customs and border control (2008/2020(INI))

P6_TA(2009)0314 A6-0222/2009

The European Parliament,

–   having regard to the proposal for a recommendation to the Council by Sarah Ludford on behalf of the ALDE Group on the problem of profiling, notably on the basis of ethnicity and race, in counter-terrorism, law enforcement, immigration, customs and border control (B6-0483/2007),

–   having regard to international, European and national human rights instruments, in particular to: the International Covenant on Civil and Political Rights (ICCPR); the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR); the Treaty on European Union; the Treaty establishing the European Community (EC Treaty); the Charter of Fundamental Rights of the European Union (the Charter) and the national constitutions of the Member States, and to the rights and guarantees which they confer on individuals in the field of privacy, data protection, non-discrimination and free movement,

–   having regard to European data protection measures from the Council of Europe: Article 8 of the ECHR, Council of Europe Convention 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data, Recommendations of the Council of Europe's Committee of Ministers to Member States R(87)15 regulating the use of personal data in the police sector(1), R (97) 18 concerning the protection of personal data collected and processed for statistical purposes(2) and R(2001) 10 on the European Code of Police Ethics(3),

–   having regard to EU data protection provisions: Articles 7 and 8 of the Charter, Directive 95/46/EC of the European Parliament and the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(4), and Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters(5),

–   having regard to measures against racial discrimination: the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), Article 14 of and Protocol 12 to the ECHR, Article 13 of the EC Treaty and Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin(6),

–   having regard to EU instruments in the field of security and the fight against terrorism, including police and judicial cooperation and exchange of information and intelligence, such as Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and cooperation concerning terrorist offences(7), Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union(8), Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime(9) and its implementing Decision 2008/616/JHA of 23 June 2008(10),

–   having regard to existing and planned EU databases such as the Schengen Information System, Eurodac and the Visa Information System, to biometric data collection measures such as those for residence permits and passports, and to the Commission's Communication of 30 November 2006 entitled "Reinforcing the management of the European Union's Southern Maritime Borders" concerning the establishment of a Permanent Coastal Patrol Network for the southern maritime external borders (COM(2006)0733), as well as to proposed surveillance projects such as Eurosur (European borders surveillance system),

–   having regard to the proposal to create 'e-borders' as mentioned in the Commission's Communication of 13 February 2008 on "Preparing the next steps in border management in the European Union", where integrated border management envisaging the creation of automated border controls including a registered traveller programme and an entry-exit system is proposed (COM (2008)0069),

–   having regard to the Agreement between the European Union and the United States of America on the processing and transfer of Passenger Name Record (PNR) data by air carriers to the United States Department of Homeland Security (DHS) (2007 PNR Agreement)(11) , to the proposal for a Council framework decision on the use of Passenger Name Records (PNR) for law enforcement purposes (COM (2007)0654), as well as to the opinions on that proposal by the European Union Agency for Fundamental Rights (the Fundamental Rights Agency), the European Data Protection Supervisor, the Article 29 Working Party and the Working Party on Police and Justice,

–   having regard to relevant national case-law such as the ruling of the German Constitutional Court on polizeiliche präventive Rasterfahndung(12) and the judgment of the UK House of Lords on the Czech Roma(13) and to the case-law of the European Court of Human Rights (ECtHR), in particular Timishev v. Russia(14),Nachova and others v. Bulgaria(15), D.H and others v. the Czech Republic(16) and S. and Marper v. the United Kingdom,(17) and of the Court of Justice of the European Communities, particularly in Huber v Germany(18),

–   having regard to the report of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin(19), to the paper on "Protecting the right to Privacy in the fight against terrorism" by the Council of Europe Commissioner for Human Rights Thomas Hammarberg(20), to General Policy Recommendations No 8 on Combating racism while fighting terrorism(21) and No 11 on Combating racism and racial discrimination in policing(22) of the European Commission against Racism and Intolerance (ECRI) of the Council of Europe and to the report on "Ethnic profiling" by the European Union Network of Independent Experts on Fundamental Rights(23),

–   having regard to Rule 114(3) and Rule 94 of its Rules of Procedure,

–   having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the opinion of the Committee on Foreign Affairs (A6-0222/2009),

Profiling and data mining

A.  Whereas Member States are making ever greater use of new technologies, via programmes and systems involving the acquisition, use, retention or exchange of information on individuals, as a means of combating terrorism or responding to other threats in the context of the fight against crime;

B.  Whereas there is a need to adopt, at European level, a clear definition of profiling, having in mind the specific objective pursued; whereas profiling is an investigation technique made possible by new technologies and commonly used in the commercial sector, but is now also increasingly used as an instrument of law enforcement, notably for the detection and prevention of crime and in the context of border controls;

C.  Whereas the practice of profiling, which is often carried out through the automated 'mining' of computer-held data, merits examination and political debate, since it controversially departs from the general rule that law enforcement decisions should be based on an individual's personal conduct; whereas profiling is an investigative technique taking information from various sources about people, which may include their ethnicity, race, nationality and religion, as a basis for trying to identify and potentially take prohibitive measures against those who may be criminal or terrorist suspects, and can be defined as:

D.  Whereas ethnic profiling, which has a specifically racial or ethnic basis and thus raises deep concerns about conflict with non-discrimination norms, can be defined as:

E.  Whereas profiling, whether through data-mining or the practices of police and other agencies, is increasingly used as a tool for law enforcement and border control, and insufficient regard is being given to the evaluation of its effectiveness and to the development and application of legal safeguards to ensure respect for rights of privacy and the avoidance of discrimination;

F.  Whereas profiles can be:

G.  Whereas data-mining and profiling blur the boundaries between permissible targeted surveillance and problematic mass surveillance in which data are gathered because they are useful rather than for defined purposes, amounting potentially to unlawful interference with privacy;

H.  Whereas unjustified travel restrictions and intrusive control practices could negatively affect vital economic, scientific, cultural and social exchanges with third countries; accordingly, underlines the importance of minimising the risk of certain groups, communities or nationalities being subject to discriminatory practices or measures that cannot be objectively justified;

I.  Whereas the danger exists that innocent people may be subject to arbitrary stops, interrogations, travel restrictions, surveillance or security alerts because information has been added to their profile by a State agent, and that if the information is not promptly removed this could lead through the exchange of data and mutual recognition of decisions to refusals of visas, travel or border admission, placement on watchlists, inclusion on databases, bans on employment or banking, arrest or loss of liberty or other deprivation of rights, all of which may be without redress;

Legal obligations

J.  Whereas law enforcement must always be conducted with respect for fundamental rights, including rights to private and family life, the protection of personal data and non-discrimination; close international cooperation is indispensable in the fight against terrorism and serious crime, but all such cooperation must comply with international law as well as European norms and values on equal treatment and proper legal protection, not least so that the EU does not undermine its credibility as a promoter of human rights within its borders and at international level;

K.  Whereas the EU should avoid investigative approaches that could unnecessarily harm diplomatic relations, hamper such international cooperation or damage its image in the world and its credibility as a promoter of international law; whereas European standards for equal treatment, non-discrimination and legal protection should continue to set an example;

L.  Whereas both descriptive and predictive profiling may be legitimate investigative tools when they are based on specific, reliable and timely information as opposed to untested generalisations based on stereotypes, and when the actions taken on the basis of such profiles meet the legal tests of necessity and proportionality; whereas, however, in the absence of adequate legal restrictions and safeguards as regards the use of data on ethnicity, race, religion, nationality and political affiliation, there is a considerable risk that profiling may lead to discriminatory practices;

M.  Whereas, the guidance in the European Code of Police Ethics to the effect that 'police investigations shall as a minimum be based upon reasonable suspicion of an actual or possible offence or crime', and whereas it is asserted that a likelihood of breach of human rights(29) threatening individuals and society as whole arises in the absence of such reasonable suspicion, when profiling is based on stereotypes or prejudice;

N.  Whereas 'predictive profiling', using broad profiles developed through cross-referencing between databases and reflecting untested generalisations or patterns of behaviour judged likely to indicate the commission of some future or as-yet-undiscovered crime or terrorist act raises strong privacy concerns and may constitute an interference with the rights to respect for private life under Article 8 of the ECHR and Article 7 of the Charter(30);

O.  Whereas the ECtHR case-law makes clear that derogations from Article 8(2) ECHR are only allowed if they are in accordance with the law and necessary in a democratic society(31), as confirmed in its recent above-mentioned judgment in S. and Marper v. the United Kingdom, when it held that "Blanket and indiscriminate (...) powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences" was a violation of Article 8 ECHR;

P.  Whereas the ECtHR's above-mentioned finding in S. and Marper v. the United Kingdom, of a 'risk of stigmatisation' from the fact that persons not convicted of any offence are treated in the same way as convicted criminals in the UK DNA database must also raise questions about the legality of profiling operations based on processing of personal data of persons not found guilty by the courts(32);

Q.  Whereas the Rasterfahndung programme, in which German police authorities collected personal records from public and private databases of males between 18 and 40 who were current or former students of presumed Muslim faith in an (unsuccessful) attempt to identify terrorist suspects was deemed unconstitutional by the German Constitutional Court in its above-mentioned ruling, which found that data mining is an illegal intrusion into personal data and privacy that cannot be justified as a response to a general threat situation of the kind that has existed continually in regard to terrorist attacks since 9/11, but requires demonstration of a "concrete danger" such as the preparation or commission of terrorist attacks;

Effectiveness

R.  Whereas doubt has been cast on the usefulness of data-mining and profiling in various American studies among which:

'automated identification of terrorists through data mining…is neither feasible as an objective nor desirable as a goal of technology development efforts(34)';

S.  Whereas the effectiveness of data-mining is weakened by the 'needle in the haystack' problem of analysts having to filter through the huge quantity of available data; whereas the extent of 'digital tracks' left by law-abiding citizens is even greater than that of criminals and terrorists who make considerable efforts to conceal their identities; and whereas there are significant rates of 'false positives' whereby not only do wholly innocent people come under suspicion resulting in potential invasion of individual privacy but real suspects meanwhile remain unidentified;

T.  Whereas the inverse problem is the possibility of missing perpetrators who do not fit the profile, an example being the ringleader of the 7 July 2005 London bombings who "had come to the attention of the intelligence services as an associate of other men who were suspected of involvement in a terrorist bomb plot...but ...was not pursued because he did not tick enough of the boxes in the pre-July 2005 profile of the terror suspect"(35);

U.  Whereas profiling that upsets good community relations and alienates certain communities from cooperation with law enforcement agencies would be counter-productive in hampering the gathering of intelligence and effective action against crime and terrorism(36);

V.  Whereas the efficient collection of information about specific suspects and following of specific leads is the best approach to detect and pre-empt terrorism and as a supplement to this, random checks and controls which affect everyone equally and are impossible for terrorists to evade may be more effective than profiling in preventive counter-terrorism efforts(37);

Ethnic profiling

W.  Whereas the use of ethnicity, national origin or religion as factors in law enforcement investigations is not precluded as long as such use conforms to non-discrimination standards, including Article 14 of the ECHR, but it must pass the scrutiny tests of effectiveness, necessity and proportionality if it is to constitute a legitimate difference in treatment that does not constitute discrimination;

X.  Whereas profiling based on stereotypical assumptions may exacerbate sentiments of hostility and xenophobia in the general public towards persons of certain ethnic, national or religious background(38);

Y.  Whereas the ECtHR case-law has established that where race constitutes an exclusive basis for law enforcement action it amounts to prohibited discrimination(39); whereas in practice it is not always clear if race or ethnicity was the exclusive or decisive basis for such action and it is often only when patterns of law enforcement practice are analysed that the predominant weight of these factors clearly emerges;

Z.  Whereas there is no international or European norm which expressly forbids 'ethnic profiling', ECtHR case-law would suggest that conclusion and both ICERD and ECRI have made clear that such practice does violate the prohibition against discrimination(40);

AA.  Whereas the Programme of Action adopted at the 2000 World Conference against Racism urged States "to design, implement and enforce effective measures to eliminate "racial profiling"(41); whereas ECRI, in its above-mentioned Recommendation No. 8 on Combating racism while fighting terrorism, has asked governments to ensure that no discrimination ensues from legislation and regulations or their implementation in the field of law enforcement; and whereas the EU Network of Independent Experts on Fundamental Rights believes that terrorist profiles on the basis of characteristics such as nationality, age or birthplace "presents a major risk of discrimination"(42);

AB.  Whereas there is a need for a comprehensive evaluation of investigative practices and data processing systems within the EU and Member States which employ or supply the basis for profiling techniques, in order to ensure full compliance with national, European and international legal obligations and avoid unjustified discriminatory or privacy-invading impacts;

AC.  Whereas the following guidelines should be applied to such operations and whereas a combination of all these protections is required in order to provide full and effective protection;

1.  Addresses the following recommendations to the Council:

2.  Instructs its President to forward this recommendation to the Council and, for information, to the Commission and to the governments and parliaments of the Member States.

(1) Adopted by the Committee of Ministers on 17 September 1987 at the 410th meeting of the Ministers' Deputies. (2) Adopted by the Committee of Ministers on 30 September 1997 at the 602nd meeting of the Ministers' Deputies. (3) Adopted by the Committee of Ministers on 19 September 2001 at the 765th meeting of the Ministers' Deputies. (4) OJ L 281, 23.11.1995, p. 31. (5) OJ L 350, 30.12.2008, p. 60. (6) OJ L 180, 19.7.2000, p. 22. (7) OJ L 253, 29.9.2005, p. 22. (8) OJ L 386, 29.12.2006, p. 89. (9) OJ L 210, 6.8.2008, p. 1. (10) OJ L 210, 6.8.2008, p. 12. (11) OJ L 204, 4.8.2007, p. 18. (12) Decision of the German Constitutional Court, BVerfG, 1 BvR 518/02 of 4.4.2006, Absatz-Nr. (1-184). (13) House of Lords, 9 December 2004, R v. Immigration Office at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants) [2004] UKHL 55, paragraph 101. (14) Timishev v. Russia, 13 December 2005, nos. 55762/00 and 55974/00, ECHR 2005-XII. (15) Nachova and Others v. Bulgaria [GC], 26 February 2004, nos. 43577/98 and 43579/98, ECHR 2005-VII. (16) D.H. and others v. the Czech Republic, 13 November 2007, no. 57325/00. (17) S. and Marper v. the United Kingdom, 4 December 2008, nos. 30562/04 and 30566/04. (18) Judgment of 16 December 2008. Case C-524/06, not yet published in the European Case Reports. (19) UN document A/HRC/4/26, 29 January 2007. (20) CommDH/Issue Paper (2008)3, Strasbourg 17 November 2008. (21) CRI (2004) 26, adopted on 17 March 2004. (22) CRI (2007) 39, adopted on 29 June 2007. (23) CFR-CDF, Opinion 4.2006, available at http://ec.europa.eu/justice_home/cfr_cdf/doc/avis/2006_4_en.pdf. (24) Opinion of the European Union Agency for Fundamental Rights of 28 October 2008 on the Proposal for a Council Framework Decision on the use of Passenger Name Record (PNR) data for law enforcement purposes, paragraph 35. (25) House of Lords Report: Clarke R, Profiling: A Hidden Challenge to the Regulation of Data Surveillance, 1993, para 33, footnote 41. (26) De Schutter, Oliver and Ringelheim, Julie (2008), "Ethnic Profiling: A Rising Challenge for European Human Rights Law," Modern Law Review, 71(3):358-384. (27) European Commission against Racism and Intolerance (ECRI) General policy recommendation No 11, above-mentioned, paragraph 1. (28) Report of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, paragraph 33. (29) Ibid., paragraph 33. See also the report on "Ethnic Profiling" of the E.U. Network of Independent Experts on Fundamental Rights, above-mentioned, pp. 9-13. (30) Opinion of the European Agency for Fundamental Rights of 28 October 2008 on the Proposal for a Council Framework Decision on the use of Passenger Name Record (PNR) data for law enforcement purposes, paragraph 4. (31) For a short overview of the relevant case law see E. Brouwer, Towards a European PNR System?, Study conducted for European Parliament Policy department C, Citizen's rights and constitutional affairs, Document PE 410.649, January 2009, paragraph 5, pp. 16-17. (32) Judgment of the ECtHR in Case S. and Marper v. the United Kingdom , above-mentioned, paragraph 125. (33) Cato Institute Policy Analysis No 584, 11 December 2006, 'Effective Terrorism and the limited role of predictive data-mining' by Jeff Jonas and Jim Harper. (34) Protecting Individual Privacy in the Struggle Against Terrorists: A Framework for Program Assessment. Free executive summary available at http://www.nap.edu/catalog/12452.html, page 4. (35) "Detectives draw up new brief in hunt for radicals," The Times, 28 December 2005. (36) Report of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, paragraph 62. (37) Ibid., paragraph 61. (38) Ibid., paragraph 40. (39) Judgment of the ECtHR in Case Timishev v. Russia, above-mentioned. (40) Opinion of the European Agency for Fundamental Rights of 28 October 2008 on the Council Framework Decision for a Passenger Name Record (PNR) data for law enforcement purposes, paragraph 39. (41) Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (A/CONF.189/12), Programme of Action, paragraph 72. (42) EU Network of Independent Experts on Fundamental Rights, "The balance between freedom and security in the response by the European Union and its member States to the Terrorist Threats" (2003), p. 21.

European Parliament resolution of 24 April 2009 on the protection of the Communities' financial interests and the fight against fraud – Annual report 2007 (2008/2242(INI))

P6_TA(2009)0315 A6-0180/2009

The European Parliament,

–   having regard to its resolutions on previous annual reports of the Commission and the European Anti-Fraud Office (OLAF),

–   having regard to the report of 22 July 2008 from the Commission to the European Parliament and the Council entitled "Protection of the Communities" financial interests – Fight against fraud – Annual report 2007" (COM(2008)0475), including annexes (SEC(2008)2300 and SEC(2008)2301) thereto,

–   having regard to the OLAF Activity Report for 2007(1), and to its second report of 19 June 2008 on the application of Council Regulation (Euratom, EC) No 2185/96 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities' financial interests against fraud and other irregularities, as well as to the guidelines replacing the OLAF Vademecum,

–   having regard to the Activity Report of the OLAF Supervisory Committee for the period from June 2007 to May 2008(2),

–   having regard to the European Court of Auditors" Annual Report on the Implementation of the Budget in the Financial Year 2007(3),

–   having regard to Articles 276(3) and 280(5) of the EC Treaty,

–   having regard to Council Regulation (EC, Euratom) No 1995/2006 of 13 December 2006 amending Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities(4),

–   having regard to Rule 45 of its Rules of Procedure,

–   having regard to the report of the Committee on Budgetary Control and the opinions of the Committee on Regional Development and the Committee on Agriculture (A6-0180/2009),

Amount of irregularities notified

1.  Welcomes the inclusion of a chapter on direct expenditure, but stresses that it expects it to be further improved with more comprehensive data in the following reports;

2.  Reiterates its call for the annual reports for the protection of the Communities' financial interests (annual PIF reports) and the corresponding resolutions by Parliament to be included on the Council's agenda, and for the Council subsequently to forward its observations to Parliament and the Commission; is deeply disappointed that the Council has not done yet done so, despite the call by Parliament and the insistence of the Commission;

3.  Notes that in the areas of own resources, agricultural expenditure, structural actions and direct expenditure, irregularities notified in 2007 totalled EUR 1 425 million (compared to EUR 1 143 million in 2006); the amounts notified by the Member States to the Commission in 2007 can be broken down as follows:

4.  Welcomes the fact that after last year's parliamentary report, the Commission has defined the differences between an irregularity and fraud in its report; however, the definition of "suspected fraud" still causes difficulties for the Member States;

General considerations

5.  Welcomes the efforts already made by the Member States but stresses once again that they should ensure the adequacy of their financial control mechanisms and emphasises the importance of preventive action by the Member States in order to increase the detection of irregularities before any payment is effectively made to the beneficiaries; underlines the fact that fighting fraud and corruption is an ongoing responsibility of all Member States and also that a concerted effort is needed in order to achieve real improvements;

6.  Emphasises the need for greater harmonisation of methods for collecting and using information, with the aim of providing a standardised framework for evaluating more efficiently the risk of fraud as part of an intensified prevention strategy;

7.  Welcomes the national management declarations issued by some Member States regarding European funds managed at national level; calls on the other Member States to carry out similar initiatives, and on the Commission to do all in its power to ensure that such national management declarations are introduced throughout the European Union;

Own resources

8.  Notes that the estimated amount affected by irregularities rose by 6%; the products most affected by irregularities were, as in previous years, televisions and cigarettes;

9.  Deplores the delay in adopting the proposal for a regulation on mutual administrative assistance for the protection of the financial interests of the European Community against fraud and any other illegal activities (COM(2006)0473) and therefore invites the Council promptly to adopt the regulation;

10.  Welcomes the fact that, following its Communication concerning the need to develop a co-ordinated strategy to improve the fight against fiscal fraud (COM(2006)0254), the Commission adopted a Communication on a coordinated strategy to improve the fight against VAT fraud (COM(2007)0758), and follows with special attention both the Commission proposal for a Council directive concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures (COM(2009)0028) and the Commission proposal for a Council directive on administrative cooperation in the field of taxation (COM(2009)0029);

11.  Insists that new political impetus is needed in order to achieve substantial improvements in cooperation in the fight against VAT fraud;

12.  Deplores the fact that since OLAF has no access to the content of the data exchange between the Member States under Council Regulation (EC) No 1798/2003 of 7 October 2003 on administrative cooperation in the field of value added tax(5), it cannot provide added value in the field of anti-VAT fraud intelligence, prevention and support of Member States" anti-fraud operations; regrets in this context the fact that OLAF had no case on VAT fraud in 2007;

13.  Reminds Member States to be aware of the considerable number of transnational VAT fraud cases;

14.  Regrets the increase in cases of fraud involving the origin of products, relating not only to the preferential tariff arrangements, but also to the GATT tariff quotas;

15.  Invites the Commission to undertake a specific assessment of the potential for fraud, by product and by country, taking into consideration the possibility of carrying out systematic, targeted and, where appropriate, permanent, checks both in the country of origin and the country of destination, paying particular attention to the phenomenon of carousel fraud;

Agricultural expenditure

16.  Recalls that as from 1 January 2007, Member States are obliged to inform the Commission of irregularities involving more than EUR 10 000, the threshold introduced by Commission Regulation (EC) No 1848/2006 of 14 December 2006 concerning irregularities and the recovery of sums wrongly paid in connection with the financing of the common agricultural policy and the organisation of an information system in this field(6); observes that the number of cases of irregularities reported was down 53% (1 548 cases, compared to 3 294 in 2006); points out that this relatively low number of irregularities can be explained by the higher threshold for reporting;

17.  Notes that the estimated amount affected rose by 44%, an increase relating in part to cases with a significant financial impact which arose or were discovered in previous years, but were reported only in 2007; notes that the sectors most affected were milk and milk products, fruit and vegetables, sugar, rural development, beef and veal;

18.  Points out that the milk, fruit and vegetable, sugar and rural development sectors taken together account for about 77% of the total amount of irregularities and that rural development represents alone about 38% of all irregularities reported; further notes that the highest amount in irregularities within rural development is reported for the support measure "forestry" and the highest number of irregularities is reported for the support measure "agri-environment"; therefore asks OLAF to pay special attention in its next annual report to the irregularities affecting rural development;

19.  Points out that the reporting compliance rates, in particular timely reporting, vary greatly between Member States; deplores that for Austria and Sweden the time gap between the detection and the reporting of the irregularities is far beyond the average time gap (1,2 years): 3,4 and 2,3 years respectively;

20.  Agrees with the statement of the European Court of Auditors (ECA) at paragraph 5.20 of its above-mentioned annual report that the Integrated Administration and Control System (IACS) continues to be an effective control system which limits the risk of irregular expenditure where properly implemented and if accurate and reliable data are entered into it; advocates extending the application of the system into new areas presently not covered by it; notes however that the quantity and quality of the checks made under it should be stepped up in order to reinforce fraud deterrence;

21.  Calls on the Commission to take a firm political decision should the Greek authorities fail to comply with the deadlines set by the action plan for setting up a new operational Land Parcel Identification System-Geographical Information System;

22.  Reiterates its call on the Commission to evaluate the efficiency and transparency of monitoring systems relating to payment of farmers in the context of its next annual report;

Structural actions

23.  Welcomes the simplified and clarified rules of Council Regulation (EC) No 1083/2006(7) and the implementing Commission Regulation (EC) No 1828/2006(8); however, is concerned by the statement of the ECA at paragraph 6.31 of its above-mentioned annual report that the management and supervisory systems of the Member States as well as the supervision of their operation by the Commission are only partially effective;

24.  Acknowledges that irregularities in the use of EU funds relating to mismanagement and sometimes even fraud occur in a large number of Member States; notes that the Member States reported 3 832 irregularities in 2007 (which is an increase of 19.2% in relation to 2006), that the total financial amount affected in 2007 was about EUR 828 million (equivalent to slightly less than 1.83% of commitment appropriations), that suspected frauds as a percentage of the total number of reported irregularities represent around 12-15% in 2007 and that the total irregular amount for the European Regional Development Fund has risen by 48% in comparison to 2006;

25.  Stresses the importance of the Action Plan adopted by the Commission on 19 February 2008 to strengthen supervision under shared management for structural actions, which aims to reduce errors in payment claims from Member States; is confident that this new Action Plan will significantly improve the situation, not least by assisting Member States in developing their ability to check the eligibility of project expenditure; notes that the first progress report relating to this Action Plan presents some positive initial results;

26.  Endorses the Commission's position in taking corrective action in the event of the detection of irregularities of a serious nature, including the suspension of payments and the recovery of undue or erroneous payments; recalls that the Commission should report four times a year on the progress achieved in the implementation of its Action Plan; nevertheless, calls on the Commission to intensify its efforts to support the Member States in preventing irregularities and transferring the necessary expertise to the competent national and regional authorities;

27.  Welcomes the quality of the results achieved in virtually all projects and, in order not to adversely affect the monitoring and proper implementation of the Structural Funds, emphasises the need to draw a distinction between:

28.  Acknowledges that effective absorption of the Structural Funds has posed significant challenges, especially for the new Member States, as they are called upon to comply with strict and often complex requirements for their utilisation; welcomes, therefore, the efforts made by these Member States to improve their implementation capacity and invites them to step up that work so as to be able to show tangible results within an acceptable timeframe;

29.  Calls on the Commission to take account of the administrative cost borne by Member States' national, regional and local administrations in applying the often complex and expensive requirements involved in monitoring and checking co-financed projects;

30.  To this end, calls on both the Commission and the Member States to work methodically to provide advice on ways of avoiding irregularities and administrative errors and failings;

31.  Urges the Commission to simplify further the management and monitoring procedures of the Structural Funds programmes, which are to some extent responsible for irregularities on the part of the Member States in the implementation of these programmes;

32.  Is shocked by the lack of reporting discipline of the Member States after a number of years; finds it unacceptable that six Member States(9) still do not use electronic reporting, 14(10) failed to comply with the reporting deadlines and some(11) did not classify any of their reported cases of irregularities; urges the Commission to find effective solutions, besides infringement proceedings, to address the situation, and invites the Commission to seriously consider establishing an effective financial sanctions system to be integrated in the future regulations, and to implement it systematically;

33.  Stresses that the classification of the irregularity (indicating whether or not it is a case of suspected fraud) is an element of the reporting by the Member States that needs to be strengthened, given that various Member States have yet to provide any classification at all and other Member States have only been able to provide the classification for a limited part of their reported irregularities;

34.  Urges the Member States who do not yet use the electronic modules AFIS/ECR for electronic reporting to do so quickly in order to improve their data quality and timeliness of reporting before the end of 2009; notes that the Commission is working on a new web based reporting system, the Irregularity Management System (IMS), to be applied from summer 2009, which will presumably improve reporting discipline;

35.  Advocates that more efforts need to be undertaken in view of an improved harmonisation of reporting of irregularities, especially as regards the Cohesion Fund;

36.  Regrets that notwithstanding the fact that the details of all beneficiaries of EU cohesion policy have to be published by the Managing Authorities under the rules governing the implementation of the Structural Funds 2007-2013 (Commission Regulation (EC) No 1828/2006), the database on the Commission website is incomplete; calls, therefore, on the Commission to work together with the Member States to speed up the flow of information with a view to the operation of a more effective and transparent database; urges, moreover, the Member States and the Commission to comply fully and timeously with this transparency obligation and in particular before June 2009 - the deadline set by Parliament's resolution of 19 February 2008 on transparency in financial matters(12);

37.  Supports in the framework of the proposed revision of Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF)(13) the request to Member States that they systematically inform OLAF of the follow-up of those cases which were transmitted by OLAF; points out that this could improve the reporting discipline of national courts' judgments on the fraudulent use of Structural Funds;

Pre-accession funds

38.  Calls attention to the fact that although the number of irregularities decreased, their financial impact increased by 2,2 times, and the financial impact of suspected fraud increased by three times, largely due to "non-eligible" expenditures;

39.  Notes that the Commission has published a series of detailed, in-depth reports critically assessing the progress in Bulgaria and Romania of judicial reform and the fight against corruption under the Co-operation and Verification mechanisms and a separate report on the management of Community funds in Bulgaria, which highlight the need for sustained political commitment and implementation on the ground if the benchmarks set at the time of accession are to be met in full; notes also that in the case of Bulgaria the Commission has definitively suspended part of the EU funds under the Phare programme because of irregularities discovered through its control and auditing system; therefore calls upon these Member States to take urgent action to implement the specific follow up measures proposed in these reports; finally, supports the efforts so far made by these Member States and calls on them to take all the necessary measures to that end;

40.  Has reservations about the fact that according to OLAF there were no suspected fraud cases for ISPA in 2007; notes that Cyprus and Lithuania did not report any cases in 2007;

41.  Stresses that the insufficient quality of reported information remains an outstanding problem; observes that reliability of reported information is the worst in Bulgaria and Romania; however, in relative terms Hungarian notifications are the least reliable; notes that timely reporting also causes problems, in particular, in four Member States and in one candidate country(14);

42.  As there are serious problems with the reliability of reported information and the general compliance rate of the requirements in some EU-12 Member States (that is, the Member States having acceded to the European Union in 2004 and in 2007), which indicates whether the administrative set-up of the reporting mechanism in the beneficiary country is strong or very weak, believes that there will be similar problems concerning the implementation of the Structural and Cohesion Funds; therefore urges the Member States concerned to cooperate with the Commission to find ways to remedy this situation;

Direct expenditure

43.  Points out that external aid is a sector which is increasingly affected by irregularities and fraud;

44.  Is concerned about the findings of the OLAF Annual Activity Report, according to which in the external aid area OLAF investigators often encounter a modus operandi typical of organised fraud due to shortcomings in coordination between the different international donor organisations;

45.  Requests the Commission to pay attention to the problem of double financing of projects; in particular, requests the Commission, when concluding or amending agreements on the management and implementation of projects by international organisations, to send systematically all their internal and external audits on the use of Community funds to the ECA and to the Internal Auditor of the Commission;

Recoveries

46.  Regrets that recovery rates are still low, especially in sectors where Member States manage recoveries; points out that, according to the OLAF report, currently about EUR 3,75 billion in recoveries are still pending;

47.  Supports the fact that the recovered amounts stay in the same budget line from where they were unduly paid out;

48.  Welcomes the publication of the new central exclusion database for recipients of Community funds who have committed fraud(15); points out that it has been operational since 1 January 2009, and asks the Commission for an evaluation report by the beginning of 2010;

49.  Points out that a faster and more appropriate recovery procedure is needed; therefore reiterates its call on the Commission to include binding and precautionary elements in future legislation concerning shared management so that irregular payments can be recovered at the end of the recovery procedure;

50.  Requests the Commission to explore the possibility of introducing a system of surety, such as by putting a certain amount into a reserve or earmarking it, to speed up the recovery of outstanding amounts;

OLAF's relationship with Europol and Eurojust

51.  Notes with satisfaction the signature by Eurojust and OLAF on 24 September 2008 of a Practical Agreement on arrangements of cooperation(16) governing modalities for close and increased cooperation and provisions for the exchange of general and personal data; supports the conclusion of a similar agreement with Europol;

52.  Feels that it is crucial to create a solid basis for operational and intelligence synergies with Eurojust and Europol, for example by means of a common operational and intelligence team, as this would certainly bring added value to the fight against fraud;

53.  Points out also that the currently overlapping competencies of these bodies should be clarified;

OLAF's cooperation with Member States

54.  Supports the major aim of the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 1073/1999 concerning investigations conducted by the European Anti Fraud Office (OLAF) (COM(2006)0244) of strengthening OLAF's independence; recalls, however, the importance of interlinking the work and results of OLAF, the Commission's services and the Member States" authorities by effective communication channels avoiding duplication of work and lack of information;

55.  Points out that OLAF is the only authority to exercise all the powers of investigation to fight against and to prevent fraud, corruption and any other illegal activity detrimental to the general budget of the EU; therefore stresses that especially in relation to Structural Funds and External Aid with the highest irregularities reported, OLAF's investigative function should be further strengthened;

56.  Points out that "follow-up" cases have steadily increased since 2003, and that in 2007 OLAF cases were mainly closed with financial recovery or judicial follow-up recommendations; concludes that this means that OLAF's investigation results are positive for the Member States and the EU institutions;

57.  Notes that OLAF's recommendations are not binding, so that national authorities take the relevant decisions and impose sanctions independently; believes that the establishment of a European Public Prosecutor's office would help to overcome difficulties arising from the cross-border nature of cases;

58.  Stresses the need for streamlining legal instruments, since the definitions of fraud, suspicions of fraud and other irregularities are scattered across a number of different legal instruments, in spite of repeated calls by Parliament for a recast of the anti-fraud rules;

59.  Notes the qualification problem of Member States in applying Articles 4 and 5 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests(17); considers that in case of ambivalence, national courts should ask the Court of Justice for a preliminary ruling;

60.  Welcomes the publication of the above-mentioned second report of OLAF on on-the-spot checks and inspections outlining good practices for each stage of checks, as well as the new version of the OLAF Vademecum (guidelines); requests the Commission to send Parliament's competent committee the updated and comprehensive version of OLAF's manual by September 2009;

61.  Advocates the need for clearer provisions on procedures and binding time limits for competent authorities in providing the assistance required and generally more binding provisions for cooperation identifying the national authority competent to provide assistance; insists, with a view to solving this problem, on the usefulness of its position of 20 November 2008 on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 1073/1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF)(18);

62.  Requests the Commission to take appropriate measures, including infringement proceedings, against those Members States which do not assist its services in carrying out on-the-spot checks as provided for by Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities' financial interests against fraud and other irregularities(19);

63.  Notes that since extensive judicial follow-up of cases has been observed but admissibility of evidence - by the national courts - collected by OLAF is very limited, the aim is to improve the judicial support for the investigative function of OLAF; considers moreover that Eurojust should be informed when information or final case reports are transmitted to the judicial authorities if they concern serious forms of transnational crime and two or more Member States are involved;

64.  Reminds the Commission of Parliament's request to include in the 2008 PIF Report an analysis of the Member States' structures involved in combating irregularities;

65.  Deplores the inadequate notification by Member States of action taken on information or final case reports transmitted by OLAF; requests the Member States to ensure that their competent authorities forward a report to OLAF on progress made in acting on the information or recommendations forwarded to them by OLAF;

66.  Notes that the national audit authorities have considerable competencies in audits regarding EU-funds and they provide the first source of information for both national prosecution authorities and EU institutions; believes therefore that maximising the cooperation and information flow between audit authorities, national prosecution authorities and OLAF would further strengthen the protection of the Communities' financial interests;

67.  Notes that according to its above-mentioned position of 20 November 2008 on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 1073/1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF), Member States shall systematically inform OLAF on the follow up of those cases which were transmitted by OLAF to them, therefore asks OLAF to report on this issue in its next annual report;

68.  Points out that the anti-Fraud coordination service (AFCOS) for OLAF in the Member States which acceded to the EU after 2004 are very important information/contact points for OLAF; however points out that so long as these offices are not independent from the national administration, their functional added value is minimal (especially concerning reporting of irregularities to the Commission); therefore invites the Commission to make a proposal to Parliament's competent committee about making the work of these offices more valuable and also considers it necessary to improve collaboration with the candidate countries;

Tobacco - Agreement with Philip Morris

69.  Regrets that the Commission was unable to provide a comprehensive report on the follow-up to Parliament's resolution of 11 October 2007 on the implications of the agreement between the Community, Member States and Philip Morris on intensifying the fight against fraud and cigarette smuggling and progress made in implementing the recommendations of Parliament's Committee of Inquiry into the Community Transit System(20), and in particular paragraph 49 thereof, which explicitly asked the Commission to publish such a report by the end of 2008; expects that the Commission will come forward with this report before the end of the discharge procedure for the financial year 2007;

70.  Cannot accept that, whereas under the Philip Morris and Japan Tobacco agreements the Community received USD 1,65 billion for the fight against fraud, instead of setting up a common approach, the Commission sent some 90% of this money un-earmarked straight to the Ministers of Finance of the Member States; calls on the Council and the Commission to set up a tripartite working group with Parliament to find adequate solutions to make wise and better use of this and similar income of the Union; finds it unacceptable that in times of economic downturn billions of Euro of fines, paid by major companies who violated European competition rules to the detriment of European consumers, are not used by the Union to stimulate the economy to the benefit of the unemployed and /or to help developing countries who will suffer most under the crisis, but instead are simply sent to the national treasuries;

Organised crime

71.  Welcomes the publication of the Commission Communication of 20 November 2008 on proceeds of organised crime (COM(2008)0766), which deals with the confiscation and recovery of crime, and agrees with the Commission that confiscation is one of the most effective ways to fight organised crime and that measures should be put in place in order to increase the limited number of confiscation cases and the modest amounts recovered;

72.  Underlines that it is essential to have in place expedient and effective mechanisms to freeze and confiscate assets abroad and therefore a recasting of the existing EU legal framework should be considered; stresses that Council Decision 2007/845/JHA should be implemented, as a matter of urgency, in order to ensure that all Member States set up or designate Asset Recovery Offices (AROs);

73.  Reiterates its call on the Commission to provide Parliament with a detailed analysis of the system or systems used by organised crime to undermine the Communities' financial interest; finds the yearly Europol Organized Crime Threat Assessment (OCTA) useful, but not sufficient in this respect;

74.  Deplores the fact that the Convention on the Protection of the European Communities" Financial Interests of 1995 and its protocols of 1996 and 2007 have still not been ratified by the Czech Republic, Hungary, Malta and Poland, that one of the two protocols has not been ratified by Estonia and Italy and that in seven Member States the transposition of the provisions has shortcomings;

o
o   o

75.  Instructs its President to forward this resolution to the Council, the Commission, the Court of Justice, the European Court of Auditors, the OLAF Supervisory Committee and OLAF.

(1) http://ec.europa.eu/atwork/synthesis/aar/doc/olaf_aar.pdf. (2) http://ec.europa.eu/anti_fraud/reports/sup-com_en.html. (3) OJ C 286, 10.11.2008, p. 1. (4) OJ L 390, 30.12.2006, p. 1. (5) OJ L 264, 15.10.2003, p. 1. (6) OJ L 355, 15.12.2006, p. 56. (7) Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund (OJ L 210, 31.7.2006, p. 25). (8) OJ L 371, 27.12.2006, p. 1. (9) France, Ireland, Sweden, Spain, Latvia and Luxembourg; since November 2008 the situation has improved, with Germany and Estonia using an electronic file and no paper notification. (10) Timely reporting is especially a problem in Spain, France and the Netherlands. (11) Spain, France, Ireland and Luxembourg. (12) Texts adopted, P6_TA(2008)0051. (13) OJ L 136, 31.5.1999, p. 1. (14) Croatia, Hungary, Slovakia, Bulgaria and Poland missed the reporting deadlines. (15) OJ L 344, 20.12.2008, p. 12. (16) OJ C 314, 9.12.2008, p. 3. (17) OJ L 312, 23.12.1995, p. 1. (18) Texts adopted, P6_TA(2008)0553. (19) OJ L 292, 15.11.1996, p. 2. (20) OJ C 227 E, 4.9.2008, p. 147.

European Parliament resolution of 24 April 2009 on parliamentary immunity in Poland (2008/2232(INI))

P6_TA(2009)0316 A6-0205/2009

The European Parliament,

–   having regard to Articles 9 and 10 of the Protocol of 8 April 1965 on the Privileges and Immunities of the European Communities,

–   having regard to Article 12(3) of the Act of 20 September 1976 concerning the election of the members of the European Parliament by direct universal suffrage,

–   having regard to Article 105 of the Constitution of the Republic of Poland of 2 April 1997,

–   having regard to Article 7b of the Polish Law of 9 May 1996 on the performance of the mandate of deputy or senator,

–   having regard to Articles 9 and 142 of the Polish Law of 23 January 2004 on elections to the European Parliament,

–   having regard to its resolution of 23 June 2005 on the amendment of the decision of 4 June 2003 on the adoption of the Statute for Members of the European Parliament(1),

–   having regard to Rules 6, 7 and 45 of its Rules of Procedure,

–   having regard to the report of the Committee on Legal Affairs (A6-0205/2009),

A.   whereas, in the current parliamentary term, Parliament and its Committee on Legal Affairs, as the committee responsible, have considered requests for waiver of the immunity of Members elected in Poland and have come up against certain difficulties in the interpretation of provisions of law that might be applicable in the case of those Members,

B.   whereas the responsible committee has been called upon, in particular, to decide on the admissibility of requests for waiver of immunity made directly by private persons to the President of the European Parliament; whereas under Polish law a private person has the right to make a direct request to the Polish Parliament (Sejm or Senat) to waive the immunity of one of its Members in the case of offences that may be the subject of a private prosecution, and whereas the relevant provisions of Polish law do not seem clearly to take account of all possible scenarios in the case of criminal proceedings relating to offences subject to private prosecution,

C.   whereas those provisions also apply to Members of the European Parliament elected in Poland, yet the admissibility of such requests raises difficult questions having regard to the Rules of Procedure, and in particular Rule 6(2) which refers to the "competent authority",

D.   whereas under Rule 7(7) of the Rules of Procedure the responsible committee is competent to verify the admissibility of a request for waiver of immunity, including the question of the competence of the national authority to submit such a request; whereas, however, under the existing provisions the manifest conflict in this regard between the relevant provisions of Polish law and the Rules of Procedure would have to be resolved by regarding as inadmissible requests for waiver of immunity submitted by private persons,

E.   whereas the purpose of Rule 6(2) is to guarantee that Parliament receives only requests in proceedings that have received the attention of the authorities of a Member State; whereas it also guarantees for Parliament that requests for waiver of immunity which are received by it comply with national law as regards both substance and procedure, which in turn serves as a further guarantee that, in reaching its decision in its procedures on immunities, Parliament observes both the national law of a Member State and its own prerogatives; whereas the concept of "authority" is clearly referred to in other provisions of Rules 6 and 7 in the context of the procedures on immunity,

F.   whereas to regard requests for waiver of immunity made by private persons as inadmissible would be unsatisfactory in that it could interfere with their rights in judicial proceedings and preclude prosecutors of some offences from being able to request waiver of immunity; whereas this could be regarded as giving rise to unjust and unequal treatment of applicants,

G.   whereas, however, it should be for the Member States to make provision for the exercise of such rights with regard to Members of the European Parliament in the light of the rules and procedures governing its functioning,

H.   whereas, by letters of 29 September 2004 and 9 March 2005, 25 Member States were invited, pursuant to Rule 7(12), to indicate which authorities are competent to present a request for waiver of a Member's immunity; whereas to date only Austria, Belgium, the Czech Republic, Cyprus, Denmark, Estonia, Finland, Germany, Greece, Hungary, Italy, Lithuania, the Netherlands, Portugal, Slovenia, Sweden and the UK have responded,

I.   whereas in its debates the responsible committee also addressed the question of the possible consequences of a waiver of immunity in the case of Members of the European Parliament elected in Poland,

J.   whereas, in the event that the Member is found guilty by the court and punished for an intentional offence prosecuted by public prosecution, such waiver might result in the automatic loss of his or her eligibility, which would result in turn in the Member losing his or her seat,

K.   whereas this automatism amounts, de facto, to an additional penal sanction being adjudged together with conviction,

L.   whereas in practice even minor offences might result in a loss of eligibility, despite the requirement that in order for an offence to give rise to ineligibility it must be both publicly prosecuted and committed intentionally,

M.   whereas there is no equivalent provision applicable to Members of the Polish Sejm or Senat, who do not cease to be eligible for election in such cases,

N.   whereas Member States are free to make a provision for the withdrawal of the mandate of a Member of the European Parliament where, as a result, the seat of the Member falls vacant; whereas, however, the principle of equal treatment, as one of the basic principles of EU law, requires that similar situations be treated in similar ways and there is an apparent differentiation in treatment of the Members of Polish Sejm and Senat, on the one hand, and Members of the European Parliament elected in Poland, on the other, when it comes to loss of eligibility; whereas that loss of eligibility results directly and automatically in the Member concerned losing his or her seat and prevents him or her from being re-elected,

O.   whereas this inequality of treatment was brought to the Commission's attention by an oral question presented on behalf of the Committee on Legal Affairs by its Chairman and was debated in the European Parliament; whereas, notwithstanding this, the legal situation remains as it was,

P.   whereas equal treatment of Members of the national parliament and Members of the European Parliament should be secured as soon as possible, particularly in view of the coming elections in 2009,

1.  Encourages the Commission to look at the discrepancies between the legal situation of Members of the European Parliament elected in Poland and that of Members of the Polish Sejm and Senat, and to engage as a matter of urgency in contacts with the competent authorities in Poland with a view to identifying how to eliminate the manifest discrimination between the Members of the two Parliaments as regards their eligibility;

2.  Separately asks the Republic of Poland to review the current situation in which conditions of eligibility and loss of mandate of Members of two parliamentary assemblies are clearly unequal, and to take steps to put an end to this discriminatory treatment;

3.  Calls on the Commission to carry out a comparative study designed to ascertain whether discrepancies in treatment of Members of national parliaments and Members of the European Parliament exist in the Member States which acceded to the European Union on or after 1 May 2004, and to communicate the results of that study to Parliament;

4.  Calls on the Member States to respect the rights deriving from EU citizenship, including the right to vote and stand as a candidate in elections to the European Parliament, which is of particular importance in the run-up to the 2009 elections, including the principle of equal treatment of persons in a similar situation;

5.  Requests the Member States, and in particular the Republic of Poland, to ensure that procedural measures are put in place in order to ensure that requests for waiver of the immunity of Members of the European Parliament are always transmitted by the "competent authority" in accordance with Rule 6(2) of the Rules of Procedure in order to guarantee observance of provisions of substantive and procedural national law, including the procedural rights of private persons, as well as Parliament's prerogatives;

6.  In order to avoid any doubt, invites the Member States to indicate to Parliament the authorities which are competent to present requests for waiver of a Member's immunity;

7.  Reiterates the need for a uniform Statute for Members of the European Parliament and recalls, in this context, the commitment made on 3 June 2005 by the representatives of the Member States meeting within the Council to examine the request by Parliament for a revision of the relevant provisions of the 1965 Protocol on the privileges and immunities of the European Communities as regards the part thereof relating to Members of the European Parliament, in order to reach a conclusion as soon as possible;

8.  Instructs its President to forward this resolution to the Council, the Commission, the Court of Justice of the European Communities, the European Ombudsman and the governments and parliaments of the Member States.

(1) OJ C 133 E, 8.6.2006, p. 48.

European Parliament resolution of 24 April 2009 on Governance within the CFP: the European Parliament, the Regional Advisory Councils and other actors (2008/2223(INI))

P6_TA(2009)0317 A6-0187/2009

The European Parliament,

–   having regard to Council Regulation (EC) 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy(1),

–   having regard to Council Regulation (EC) 657/2000 of 27 March 2000 on closer dialogue with the fishing sector and groups affected by the common fisheries policy(2),

–   having regard to Commission Decisions 71/128/EEC, 1999/478/EC and 2004/864/EC,

–   having regard to Commission Decision 93/619/EC, renewed in 2005 by Commission Decision 2005/629/EC,

–   having regard to Commission Decisions 74/441/EEC and 98/500/EC,

–   having regard to Council Decision 2004/585/EC of 19 July 2004 establishing Regional Advisory Councils under the Common Fisheries Policy(3) as amended by Council Decision 2007/409/EC of 11 June 2007(4),

–   having regard to the Communication from the Commission of 17 June 2008 on the review of the functioning of the Regional Advisory Councils (COM(2008)0364),

–   having regard to Rule 45 of its Rules of Procedure,

–   having regard to the report of the Committee on Fisheries (A6-0187/2009),

A.   whereas institutional governance of the Common Fisheries Policy (CFP) involves the Commission, the European Parliament, the Council, the Committee of the Regions, the European Economic and Social Committee, the Advisory Committee on Fisheries and Aquaculture (ACFA), the Scientific, Technical and Economic Committee on Fisheries (STECF), the Sectoral Social Dialogue Committee for Sea Fisheries (SSDC) and the Regional Advisory Councils (RACs),

B.   whereas the governance of the CFP also involves the national and regional administrations of the Member States,

C.   whereas the Community participates in various Regional Fisheries Organisations, and Fisheries Partnership Agreements are also concluded with third countries,

D.   whereas, under the Treaty of Lisbon, Parliament would continue to be excluded from the setting of total allowable catches (TACs) and quotas,

E.   whereas attendance of members of Parliament at meetings of Regional Fisheries Organisations is currently on an ad hoc basis,

F.   whereas communication concerning the actual operation of Fisheries Partnership Agreements, including the activities of the Joint Monitoring Committees, could be more satisfactory,

G.   whereas STECF was established in 1993, an Advisory Committee for Fisheries was established in 1971 and renamed the Advisory Committee on Fisheries and Aquaculture (AFCA) in 1999, and a Sectoral Social Dialogue Committee for Sea Fisheries was established in 1999, replacing a Joint Committee existing since 1974,

H.   whereas all seven RACs are now operational,

I.   whereas an Inter-RAC Committee has been established and holds co-ordination meetings with the Commission,

J.   whereas the Commission has recently undertaken evaluations of AFCA and of the RACs but none so far of the work of STECF,

K.   whereas the evaluation of AFCA has made a number of operational recommendations and suggested various options for its long term future,

L.   whereas the evaluation of the RACs has been positive, but the Commission has identified a number of actions, not requiring new legislation, to improve their functioning,

M.   whereas all parties are agreed that a stronger dialogue between scientists and fishermen is needed and the RACs have also called for better socio-economic input into decision-taking,

N.   whereas certain RACs and members of Parliament have expressed a desire for a more formal relationship,

O.   whereas increasing activity on the part of the RACs is hampered by limited funding and the Commission's excessively bureaucratic and inflexible approach to management and financial control regarding the funds allocated to them,

P.   whereas the Commission has said that it will listen to the views of Parliament, the Council and the stakeholders before introducing new legal rules,

Q.   whereas Commission representatives frequently fail to attend RAC working group meetings,

R.   whereas there is, however, already evidence that increased compliance with the rules of the CFP results from the involvement of stakeholders in their creation and implementation,

S.   whereas there is a multiplicity of different Community fisheries, each with its own characteristics,

T.   whereas consultations are already taking place on the reform of the CFP,

U.   whereas RAC recommendations are not always given proper attention, especially when they have not been approved unanimously by the executive committees,

1.  Calls for members of its Fisheries Committee to be given observer status at meetings of the Council of Fisheries Ministers;

2.  Calls for the Council, the Commission, and Parliament to complete the work required to reach a genuine agreement laying down standard forms of participation for members of Parliament's Committee on Fisheries in regional fisheries management organisations (RFMOs) and other international bodies whose meetings are given over to discussion of subjects affecting the Common Fisheries Policy (CFP), on the understanding that this should in no way detract from their present observer status at meetings for which such an arrangement has been agreed;

3.  Also calls on the Council, in agreement with the Commission and Parliament, to allow members of Parliament's Committee on Fisheries to serve on the joint committees set up under Fisheries Partnership Agreements, to enable them to bring the necessary scrutiny to bear on those agreements; points out in addition that the entry into force of the Treaty of Lisbon will entail much greater responsibilities for Parliament, since partnership agreements will have to be approved by the assent procedure;

4.  Points to the importance of ensuring that Commission representatives attend RAC working group and executive committee meetings more regularly;

5.  Calls on the Commission to notify Parliament of all consultations that are taking place in relation to the CFP and maritime policy;

6.  Calls on the Commission to engage in an evaluation of STECF;

7.  Notes the outcome of the evaluation of AFCA and that the Commission is awaiting AFCA's own recommendations concerning:

8.  Stresses the importance of avoiding overlap, particularly with the work of RACs;

9.  Points out that the fisheries sector is still not considered to have a sufficient say in the decisions affecting it; points to the differences, in terms of roles and operation, between the ACFA and RACs, inasmuch as the former performs an advisory role extending to the CFP as a whole and covers the entire Community area, whereas the role of RACs is to give specialised advice within their spheres of influence; accordingly considers that the coexistence of the different advisory bodies helps to make for compatibility with maritime and marine policy and integrated coastal zone management;

10.  Calls on the Commission to take the following actions in respect of RACs:

11.  Considers that RACs are currently under-financed for the level of work that they are undertaking; notes that the Commission has issued guidelines concerning financial management but believes that further dialogue is necessary in this regard and that alternatives to the current system should be explored;

12.  Believes that wider participation in RACs requires a review of their composition, but that the current balance between the fishing industry and other organisations should not be disturbed;

13.  Expresses its disquiet at the fact that some organisations serving in RACs as "other interest groups" repeatedly take advantage of their presence, even though they might be in the minority, to block decisions supported by a majority of fisheries sector representatives and obstruct decision-taking by consensus;

14.  Calls for closer links between the RACs and Parliament, the Committee of the Regions and the European Economic and Social Committee;

15.  Calls for technical and political decisions to be separated; political decisions should be taken as part of a regional approach and technical decisions as part of a scientific approach;

16.  Requests its Committee on Fisheries, subject to the statutory approval procedures, to:

17.  Calls on the budgetary authorities to allocate adequate funding for the above;

18.  Asks the RACs to keep members of its Fisheries Committee informed of their activities, advice and recommendations and to invite their attendance at meetings;

19.  Calls for any future legislation on RACs to afford members of Parliament formal status as active observers at their meetings;

20.  Asks the Commission and the Inter-RAC Committee to agree to the attendance of members of Parliament's Fisheries Committee at their coordination meetings;

21.  Stresses the importance of the CFP as a means of ensuring the existence of standards, principles and rules that are applicable across all Community waters and to all Community vessels;

22.  Asks the Commission to fully accept and respect the advisory role of the RACs and to propose, with a view to the reform of the CFP, their increasing involvement in management responsibilities;

23.  Believes also that the coming reform of the CFP should take full advantage of the consolidation of the RACs to achieve an increased decentralisation of the CFP, in order that common measures adopted may be applied in the different zones in line with the specific peculiarities of different fisheries and fishing conditions;

24.  Instructs its President to forward this resolution to the Council, the Commission, the Regional Advisory Councils, the Advisory Committee on Fisheries and Aquaculture, the Scientific, Technical and Economic Committee, the Committee of the Regions and the European Economic and Social Committee, the Sectoral Social Dialogue Committee for Sea Fisheries and to the governments and parliaments in the Member States.

(1) OJ L 358, 31.12.2002, p. 59. (2) OJ L 80, 31.3.2000, p. 7. (3) OJ L 256, 3.8.2004, p. 17. (4) OJ L 155, 15.6.2007, p. 68.

European Parliament legislative resolution of 24 April 2009 on the Council common position for adopting a regulation of the European Parliament and of the Council concerning statistics on plant protection products (11120/2/2008 – C6-0004/2009 – 2006/0258(COD))

P6_TA(2009)0318 A6-0256/2009

(Codecision procedure: second reading)

The European Parliament,

–   having regard to the Council common position (11120/2/2008 – C6-0004/2009)(1),

–   having regard to its position at first reading(2) on the Commission proposal to Parliament and the Council (COM(2006)0778),

–   having regard to Article 251(2) of the EC Treaty,

–   having regard to Rule 62 of its Rules of Procedure,

–   having regard to the recommendation for second reading of the Committee on the Environment, Public Health and Food Safety (A6-0256/2009),

1.  Approves the common position as amended;

2.  Instructs its President to forward its position to the Council and Commission.

Position of the European Parliament adopted at second reading on 24 April 2009 with a view to the adoption of Regulation (EC) No .../2009 of the European Parliament and of the Council concerning statistics on plant protection products

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 285(1) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee(3),

After consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article 251 of the Treaty(4),

Whereas:

(1)  Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme(5) recognised that the impact of pesticides on human health and the environment, in particular from plant protection products used in agriculture, must be reduced further. It underlined the need to achieve more sustainable use of pesticides and called for a significant overall reduction of risks and the use of pesticides consistent with the necessary crop protection.

(2)  In its Communication to the Council, the European Parliament and the European Economic and Social Committee entitled "Towards a Thematic Strategy on the Sustainable Use of Pesticides", the Commission recognised the need for detailed, harmonised and up-to-date statistics on sales and use of pesticides at Community level. Such statistics are necessary for assessing policies of the European Union on sustainable development and for calculating relevant indicators on the risks for health and the environment related to pesticide use.

(3)  Harmonised and comparable Community statistics on pesticide sales and use are essential for the development and monitoring of Community legislation and policies in the context of the Thematic Strategy on the Sustainable Use of Pesticides.

(4)  Since the effects of the Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market(6) will not become apparent until well after 2006, when the first evaluation of active substances for use in biocidal products will be finalised, neither the Commission nor most Member States currently have sufficient knowledge or experience to propose further measures regarding biocides. The scope of this Regulation should thus be limited to plant protection products covered by Regulation (EC) No…/… of the European Parliament and of the Council of ... [concerning the placing of plant protection products on the market](7), for which a large experience already exists on data collection.

(5)  The experience of the Commission in collecting data on sales and use of plant protection products over many years has demonstrated the need to have a harmonised methodology for collecting statistics at Community level both from the stage of placing on the market and from users. Moreover, in view of the aim of calculating accurate risk indicators according to the objectives of the Thematic Strategy on the Sustainable Use of Pesticides, statistics need to be detailed up to the level of the active substances.

(6)  Among the different data collection options evaluated in the impact assessment of the Thematic Strategy on the Sustainable Use of Pesticides, mandatory data collection was recommended as the best option because it would allow the development of accurate and reliable data on the placing on the market and use of plant protection products quickly and cost-efficiently.

(7)  Council Regulation (EC) No 322/97 of 17 February 1997 on Community Statistics(8) constitutes the reference framework for the provisions of this Regulation. In particular, it requires conformity to standards of impartiality, reliability, relevance, cost-effectiveness, statistical confidentiality and transparency.

(8)  The transmission of data subject to statistical confidentiality is governed by the rules set out in Regulation (EC) No 322/97 and in Council Regulation (Euratom, EEC) No 1588/90 of 11 June 1990 on the transmission of data subject to statistical confidentiality to the Statistical Office of the European Communities(9). Measures which are taken in accordance with those Regulations ensure the physical and logical protection of confidential data and ensure that no unlawful disclosure and non-statistical use occur when Community statistics are produced and disseminated.

(9)  The necessary protection of confidentiality on data of commercial value should be assured, among other means, by an appropriate aggregation when publishing statistics.

(10)  To guarantee comparable results, statistics on plant protection products should be produced in accordance with a specified breakdown, in an appropriate form and within a fixed period of time from the end of a reference year as defined in the Annexes of this Regulation.

(11)  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(10).

(12)  In particular the Commission should be empowered to define the area treated and to adapt Annex III. Since those measures are of general scope and are designed to amend non-essential elements of this Regulation, inter alia by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

(13)  Since the objective of this Regulation, namely the establishment of a common framework for the systematic production of Community statistics on the placing on the market and use of plant protection products, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(14)  The Statistical Programme Committee, established by Council Decision 89/382/EEC, Euratom(11), has been consulted,

HAVE ADOPTED THIS REGULATION:

Article 1

Subject matter, scope and objectives

1.  This Regulation establishes a common framework for the systematic production of Community statistics on the placing on the market and use of those pesticides which are plant protection products, as defined in point (i) of point (a) of Article 2.

2.  The statistics shall apply to:

3.  The statistics shall, in particular, together with other relevant data serve the purposes of Article 14 of Directive …/…/EC of the European Parliament and of the Council of ... [establishing a framework for Community action to achieve a sustainable use of pesticides](12).

Article 2

Definitions

Article 3

Data collection, transmission and processing

1.  Member States shall collect the data necessary for the specification of the characteristics listed in Annexes I and II by means of:

2.  Member States shall transmit to the Commission (Eurostat) the statistical results, including confidential data, according to the schedules and with the periodicity specified in Annexes I and II. Data shall be presented according to the classification given in Annex III.

3.  Member States shall transmit the data in electronic form, in conformity with an appropriate technical format to be adopted by the Commission (Eurostat) in accordance with the regulatory procedure referred to in Article 6(2).

4.  For reasons of confidentiality, the Commission (Eurostat) shall aggregate the data before publication according to the chemical classes or categories of products indicated in Annex III, taking due account of the protection of confidential data at the level of individual Member State. In accordance with Article 15 of Regulation (EC) No 322/97, confidential data shall be used by national authorities and by the Commission (Eurostat) exclusively for statistical purposes.

Article 4

Quality assessment

1.  For the purpose of this Regulation, the following quality assessment dimensions shall apply to the data to be transmitted:

2.  Member States shall provide the Commission (Eurostat) with reports on the quality of the data transmitted as referred to in Annexes I and II. The Commission (Eurostat) shall assess the quality of data transmitted.

Article 5

Implementation measures

1.  The Commission shall adopt the appropriate technical format for the transmission of data in accordance with the regulatory procedure referred to in Article 6(2).

2.  The Commission shall adopt the definition of the "area treated" as referred to in Section 2 of Annex II. That measure, designed to amend non-essential elements of this Regulation by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 6(3).

3.  The Commission may amend the harmonised classification of substances as defined in Annex III for the purpose of adapting it to changes in the list of active substances adopted in accordance with Article 78(3) of Regulation (EC) No …/… [concerning the placing of plant protection products on the market]. Those measures, designed to amend non-essential elements of this Regulation, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 6(3).

Article 6

Committee procedure

1.  The Commission shall be assisted by the Statistical Programme Committee.

2.  Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be three months.

3.  Where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

Article 7

Report

The Commission shall submit a report on the implementation of the Regulation to the European Parliament and the Council every five years. This report shall evaluate in particular the quality of data transmitted, as referred to in Article 4, the burden on businesses, agricultural holdings and national administrations and the usefulness of these statistics in the context of the Thematic Strategy on the Sustainable Use of Pesticides in particular with regard to the objectives set out in Article 1. It shall, if appropriate, contain proposals designed to further improve data quality and reduce the burden on businesses, agricultural holdings and national administrations.

The first report shall be submitted by 1 January …(14).

Article 8

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at

For the European Parliament For the Council

The President The President

ANNEX I

Statistics on placing of plant protection products on the market

SECTION 1

Coverage

The statistics shall cover substances listed in Annex III contained in plant protection products placed on the market in each Member State. Special attention shall be paid to avoiding double counting in the event of product reconditioning or transfer of authorisation between authorisation holders.

SECTION 2

Variables

The quantity of each substance listed in Annex III contained in plant protection products placed on the market shall be compiled.

SECTION 3

Reporting measure

Data shall be expressed in kilograms of substances.

SECTION 4

Reference period

The reference period shall be the calendar year.

SECTION 5

First reference period, periodicity and transmission of results

1.  The first reference period is the second calendar year following …(15).

2.  Member States shall supply data for every calendar year subsequent to the first reference period.

3.  Data shall be transmitted to the Commission (Eurostat) within 12 months of the end of the reference year.

SECTION 6

Quality report

This report shall be transmitted to the Commission (Eurostat) within 15 months of the end of the reference year.

ANNEX II

Statistics on agricultural use of plant protection products

SECTION 1

Coverage

1.  Statistics shall cover substances listed in Annex III contained in plant protection products used in agriculture on each selected crop in each Member State.

2.  Each Member State shall establish the selection of crops to be covered during the five-year period defined in Section 5. The selection shall be designed to be representative of the crops cultivated in the Member State and of the substances used.

The selection of crops shall take into account the most relevant crops for the national action plans as referred to in Article 4 of Directive …/…/EC [establishing a framework for Community action to achieve a sustainable use of pesticides].

SECTION 2

Variables

SECTION 3

Reporting measures

1.  Quantities of substances used shall be expressed in kilograms.

2.  Areas treated shall be expressed in hectares.

SECTION 4

Reference period

1.  The reference period shall, in principle, be a period of maximum 12 months covering all plant protection treatments associated with the crop.

2.  The reference period shall be reported as the year in which the harvest began.

SECTION 5

First reference period, periodicity and transmission of results

1.  For each five-year period, Member States shall compile statistics on the use of plant protection products for each selected crop within a reference period as defined in Section 4.

2.  Member States may choose the reference period at any time of the five-year period. The choice can be made independently for each selected crop.

3.  The first five-year period shall start at the first calendar year following …(16).

4.  Member States shall supply data for every five-year period.

5.  Data shall be transmitted to the Commission (Eurostat) within 12 months of the end of each five-year period.

SECTION 6

Quality report

ANNEX III

Harmonised classification of substances

(1) OJ C 38 E, 17.2.2009, p. 1. (2) OJ C 66 E, 20.3.2009, p. 98. (3) OJ C 256, 27.10.2007, p. 86. (4) Opinion of the European Parliament of 12 March 2008 (OJ C 66 E, 20.3.2009, p. 98), Council Common Position of 20 November 2008 (OJ C 38 E, 17.2.2009, p. 1) and Position of the European Parliament of 24 April 2009. (5) OJ L 242, 10.9.2002, p. 1. (6) OJ L 123, 24.4.1998, p. 1. (7) OJ L … (8) OJ L 52, 22.2.1997, p. 1. (9) OJ L 151, 15.6.1990, p. 1. (10) OJ L 184, 17.7.1999, p. 23. (11) OJ L 181, 28.6.1989, p. 47. (12) OJ L (13) OJ L … (14) * Note to OJ: please insert the year which is eight years from the year of the adoption of this Regulation. (15) * OJ: Please insert the date of entry into force of this Regulation. (16) * OJ: Please insert the date of the entry into force of this Regulation. (17) Chemical Abstracts Service Registry Numbers. (18) Collaborative International Pesticides Analytical Council.

European Parliament legislative resolution of 24 April 2009 on the proposal for a directive of the European Parliament and of the Council establishing a framework for the setting of ecodesign requirements for energy related products (recast) (COM(2008)0399 – C6-0277/2008 – 2008/0151(COD))

P6_TA(2009)0319 A6-0096/2009

(Codecision procedure – recast)

The European Parliament,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2008)0399),

–   having regard to Article 251(2) and Article 95 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0277/2008),

–   having regard to the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts(1),

–   having regard to the letter of 9 October 2008 from the Committee on Legal Affairs to the Committee on the Environment, Public Health and Food Safety in accordance with Rule 80a(3) of its Rules of Procedure,

–   having regard to Rules 80a and 51 of its Rules of Procedure,

–   having regard to the report of the Committee on the Environment, Public Health and Food Safety and the opinion of the Committee on Industry, Research and Energy (A6-0096/2009),

A.   whereas, according to the Consultative Working Party of the Legal Services of the European Parliament, the Council and the Commission, the proposal in question does not include any substantive amendments other than those identified as such in the proposal and whereas, as regards the codification of the unchanged provisions of the earlier acts together with those amendments, the proposal contains a straightforward codification of the existing texts, without any change in their substance,

1.  Approves the Commission proposal as adapted to the recommendations of the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission and as amended below;

2.  Takes note of the Commission declaration annexed hereto;

3.  Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

4.  Instructs its President to forward its position to the Council and the Commission.

Position of the European Parliament adopted at first reading on 24 April 2009 with a view to the adoption of Directive 2009/.../EC of the European Parliament and of the Council establishing a framework for the setting of ecodesign requirements for energy-related products (recast)

(As an agreement was reached between Parliament and Council, Parliament's position at first reading corresponds to the final legislative act, Directive 2009/125/EC.)

ANNEX

Commission Declaration

"The Commission declares that adoption of the proposed extension of the Directive of the European Parliament and of the Council establishing a framework for the setting of eco-design requirements for energy-related products will not affect the implementation of the work programme currently established.

Moreover, the Commission will take due account of the experience gained under the Directive when establishing the work programme and proposing new implementing measures under the recast Directive. In line with Article 15(2)(c) of the Directive and the principles of better regulation, the Commission will in particular strive to ensure that overall consistency in the EU legislation on products is maintained.

In addition, the Commission will, when assessing the appropriateness of extending the scope of the Directive to non energy related products according to Article 21, consider the need for adapting the methodology for identifying and addressing significant environmental parameters for such products."

(1) OJ C 77, 28.3.2002, p. 1.

European Parliament legislative resolution of 24 April 2009 on the proposal for a regulation of the European Parliament and of the Council laying down harmonised conditions for the marketing of construction products (COM(2008)0311 – C6-0203/2008 – 2008/0098(COD))

P6_TA(2009)0320 A6-0068/2009

(Codecision procedure: first reading)

The European Parliament,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2008)0311),

–   having regard to Article 251(2) and Article 95 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0203/2008),

–   having regard to Rule 51 of its Rules of Procedure,

–   having regard to the report of the Committee on the Internal Market and Consumer Protection and the opinion of the Committee on Industry, Research and Energy (A6-0068/2009),

1.  Аpproves 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 24 April 2009 with a view to the adoption of Regulation (EC) No .../2009 of the European Parliament and of the Council laying down harmonised conditions for the marketing of ║ construction products

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission║,

Having regard to the opinion of the European Economic and Social Committee(1),

Having regard to the opinion of the Committee of the Regions(2),

Acting in accordance with the procedure laid down in Article 251 of the Treaty(3),

Whereas:

(1)  The rules of Member States require that construction works are designed and executed so as not to endanger the safety of persons, domestic animals and property nor damage the natural or man-made environment.

(2)  Those rules have a direct influence on the requirements of construction products. Those requirements are consequently reflected in national product standards, national technical approvals and other national technical specifications and provisions related to construction products. By their disparity, those requirements hinder trade within the Community.

(3)  Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products(4), aimed at the removal of technical barriers to trade in the field of construction products, in order to enhance their free movement in the internal market.

(4)  In order to achieve that objective, Directive 89/106/EEC provided for the establishment of harmonised standards for construction products and provided for the granting of European technical approvals.

(5)  Directive 89/106/EEC should be replaced in order to simplify and clarify the existing framework, and improve the transparency and the effectiveness of the existing measures.

(6)  It is necessary to provide for simplified procedures for drawing up declarations of performance in order to alleviate the financial burden of small and medium-sized enterprises (SMEs) and in particular of micro-enterprises.

(7)  Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93(5) and Decision No 768/2008/EC of the European Parliament and of the Council of 9 July 2008 on a common framework for the marketing of products, and repealing Council Decision 93/465/EEC(6) provide for a horizontal legal framework for the marketing of products in the internal market. Therefore this Regulation should take account of that legal framework.

(8)  Products made on the site of construction works should not be considered to fall within the scope of the concept of the supply of construction products on the Community market. Manufacturers incorporating their construction products in works should be allowed, but not obliged, to declare the performance of these products in accordance with this Regulation.

(9)  The removal of technical barriers in the field of construction may only be achieved by the establishment of harmonised technical specifications for the purposes of assessing the performance of construction products.

(10)  The performance of a construction product is not only defined in terms of technical capabilities and essential characteristics, but also in terms of the health and safety aspects related to the use of the product during its entire lifecycle.

(11)  Those harmonised technical specifications should include testing, calculation and other means, defined within harmonised standards and European Assessment Documents (EAD) for assessing performance in relation to the essential characteristics of construction products.

(12)  The methods used by the Member States in their requirements for works, as well as other national rules in relation to the essential characteristics of construction products, shall be in accordance with harmonised technical specifications.

(13)  It is necessary to establish basic works requirements in order to provide the basis for the preparation of the mandates and harmonised standards and for the elaboration of the EADs for construction products.

(14)  For the assessment of the sustainable use of resources and of the impact of building works on the environment, Environmental Product Declarations (EPD) should be used.

(15)  Where appropriate, the use in harmonised standards of classes of performance in relation to the essential characteristics of construction products should be encouraged, so as to take account of different levels of basic works requirements for certain works as well as differences in climate, geology and geography and other conditions prevailing in the Member States. Where the Commission has not already established them, the European standardisation bodies should be entitled to establish such classes on the basis of a revised mandate.

(16)  Where appropriate, performance levels in relation to the essential characteristics, to be fulfilled by construction products in Member States should be established in the harmonised technical specifications so as to take account of different levels of basic works requirements for certain works as well as of the differences in climate, geology and geography and other different conditions prevailing in the Member States.

(17)  The European Committee for Standardization (CEN) and the European Committee for Electrotechnical Standardization (Cenelec) are recognised as the competent organisations for the adoption of harmonised standards in accordance with the general guidelines(7) for cooperation between the Commission and those two organisations signed on 28 March 2003.

(18)  Those harmonised standards should provide the appropriate tools for the harmonised assessment of the performance in relation to the essential characteristics of construction products. Harmonised standards should be established on the basis of mandates adopted by the Commission, covering the relevant families of construction products, in accordance with Article 6 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services(8). The Commission should take steps to increase the range of products covered by harmonised standards.

(19)  It is necessary for the representative bodies of the principal professions involved in the design, manufacture and deployment of construction products to participate in European technical bodies to ensure they operate in a fair and transparent way and to ensure market effectiveness.

(20)  In order to ensure the comprehensibility of the information provided by the manufacturer, the declaration of performance should be drawn up in the official language, or one of the official languages, of the Member State in which the product is placed on the market. If a Member State has several official languages, the choice of the language used for the drawing up of the declaration of performance should be made with the recipient's agreement.

(21)  The procedures under Directive 89/106/EEC for assessing performance in relation to the essential characteristics of construction products not covered by a harmonised standard should be simplified in order to make them more transparent and to reduce costs to manufacturers of construction products.

(22)  In order to allow manufacturers and importers of construction products to draw up a declaration of performance for construction products which are not fully covered or not covered by a harmonised standard it is necessary to provide for a European Technical Assessment.

▌

(23)  Manufacturers and importers of construction products should be allowed to request European Technical Assessments to be carried out for their products on the basis of the guidelines for European technical approval established under Directive 89/106/EEC. Therefore, the continuing validity of these guidelines as EADs should be ensured.

(24)  The establishment of ▌EADs and the issuing of European Technical Assessments should be entrusted to Technical Assessment Bodies (TABs) designated by Member States. In order to ensure that TABs have necessary competence for carrying out those tasks, the requirements for their designation should be set out at Community level. Therefore it is also necessary to provide for periodical evaluations of TABs by TABs from other Member States.

(25)   ║ TABs should establish an organisation to coordinate and ensure the transparency of procedures for the establishment of ▌EADs and for the issuing of ║ European Technical Assessments. That organisation should ensure, in particular, that manufacturers are properly informed and, if necessary, that the working groups set up by the TABs organise a hearing with an independent scientific expert and/or a professional organisation nominated by the manufacturer.

(26)  Among the essential characteristics, characteristics for which the minimum requirements in terms of levels or classes of performance are determined by the Commission under the appropriate committee procedure, and characteristics which apply independently of where the construction product is marketed should be distinguished.

(27)  The placing on the market of construction products which are covered by a harmonised standard or for which a European Technical Assessment has been issued should be accompanied by a declaration of performance in relation to the essential characteristics of the product in accordance with the relevant harmonised technical specifications.

▌

(28)  It is necessary to provide for simplified procedures for drawing up declarations of performance in order to alleviate the financial burden of SMEs and in particular of micro-enterprises.

(29)  In order to ensure that the declaration of performance is accurate and reliable, the performance of the construction product should be assessed and the production in the factory should be controlled in accordance with an appropriate system of assessment and verification of constancy of performance of the construction product.

(30)  Given the specificity of construction products and the particular focus of the system for their assessment, the procedures for ║ conformity assessment provided for in Decision No 768/2008/EC, and the modules set out in that Decision, are not appropriate for those products. Therefore, specific methods should be established for the assessment and verification of constancy of performance in relation to the essential characteristics of construction products.

(31)  Due to the difference in the meaning of the CE marking for construction products, when compared to the general principles set out in Regulation (EC) No 765/2008, specific provisions should be put in place to ensure the clarity of the obligation to affix the CE marking to construction products and the consequences of that affixing.

(32)  By affixing or having affixed the CE marking to a construction product, the manufacturer, authorised representative or importer should take responsibility for the conformity of that product with its declared performance.

(33)  The CE marking should be affixed to all construction products, for which the manufacturer has drawn up a declaration of performance in accordance with this Regulation. ▌

(34)  The CE marking should be the only marking of conformity of the construction product with the declared performance and with applicable requirements relating to Community harmonisation legislation. However, other markings may be used, provided that they help to improve the protection of users of construction products and are not covered by Community harmonisation legislation.

(35)  To avoid unnecessary testing of construction products, for which performance has already sufficiently been demonstrated by stable previous test results or other existing data, the manufacturer should be allowed, under conditions set up in the harmonised technical specifications or in a Commission Decision, to declare a certain level or class of performance without testing or without further testing.

(36)  To avoid duplicating tests already carried out, a manufacturer of a construction product should be allowed to use the test results obtained by a third party.

(37)  To decrease the cost of placing products on the market for micro-enterprises, it is necessary to provide for simplified procedures for assessment and verification of constancy of performance, when the products in question do not imply significant safety concerns.

(38)  In order to allow effective market surveillance and to ensure a high level of consumer protection, it is important that simplified procedures for declaring a certain level or class of performance without testing or without further testing do not apply to importers who place a product on the market under their own name or trademark or modify a construction product already placed on the market in such a way that conformity with the declared performance may be affected. This concerns the use of stable previous test results or other existing data and the use of results of tests obtained by third parties. It also concerns the simplified procedure applying to micro-enterprises.

(39)  For individually designed and manufactured construction products the manufacturer should be allowed to use simplified procedures for assessment and verification of constancy of performance, where the compliance of the product placed on the market with the applicable regulatory provisions can be demonstrated.

(40)  It is important to ensure the accessibility of national technical rules, so that enterprises, and in particular SMEs, can gather reliable and precise information about the law in force in the Member State where they intend to market their products. Product Contact Points established by ║ Regulation (EC) No 764/2008 of the European Parliament and of the Council of 9 July 2008 laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State and repealing Decision No 3052/95/EC(9) should therefore provide information also on rules applicable to the incorporation, assembling or installation of a specific type of construction product. They should also be able to provide to any manufacturer all information concerning the available appeals procedures where the conditions of access for one or more of the manufacturer's products to the CE marking are contested, in particular the appropriate appeals procedures against decisions taken following the assessment.

(41)  For the purposes of ensuring an equivalent and consistent enforcement of Community harmonisation legislation, effective market surveillance should be operated by the Member States. Regulation (EC) No 765/2008 ║ provides the basic conditions for the functioning of such market surveillance.

(42)  The responsibility of Member States for safety, health and other matters covered by the basic works requirements on their territory should be recognised in a safeguard clause providing for appropriate protective measures.

(43)  Since it is necessary to ensure throughout the Community a uniform level of performance of bodies carrying out assessment and verification of constancy of performance of construction products and since all such bodies should perform their functions to the same level and under conditions of fair competition, requirements should be set for performance assessment bodies seeking to be notified for the purposes of this Regulation. Provisions should also be made for the availability of adequate information about such bodies and for their monitoring.

(44)  In order to ensure a coherent level of quality in assessment and verification of constancy of performance of construction products, it is also necessary to establish requirements applicable to the authorities responsible for notifying the bodies carrying out these tasks to the Commission and the other Member States.

(45)  Since the objective of this Regulation, namely the achievement of the proper functioning of the internal market in construction products by means of harmonised technical specifications for expressing the performance of construction products, cannot be sufficiently achieved by the Member States and can therefore, by reason of its scale and effects, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(46)  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(10).

(47)  In particular, the Commission should be empowered to establish conditions under which the declaration of performance may be available on a web site, to determine the period during which manufacturers, importers and distributors should keep the technical documentation and the declaration of performance available, to establish classes of performance in relation to the essential characteristics of construction products, to establish the system of assessment of performance and verification of constancy of the declared performance to be applied to a given construction product or family of construction products, to establish the format of the European Technical Assessment, to establish procedures for carrying out the evaluation of TABs and to amend Annexes I to VI. Since those measures are of general scope and are designed to amend non-essential elements of this Regulation, inter alia by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

(48)  Existing mandates for the setting of harmonised European standards should be taken into account. CEN should devise standards to clarify Basic Works Requirement No 7 entitled "Sustainable use of natural resources".

(49)  Basic Works Requirement No 7 should take account of the recyclability of construction works, their materials and parts after demolition, the durability of construction works and the use of environmentally compatible raw and secondary materials in construction works.

(50)  Since a period of time is required to ensure that the framework for the proper functioning of this Regulation is in place, its application should be deferred, with the exception of the provisions concerning the designation of TABs, notifying authorities and notified bodies, the establishment of an organisation of TABs and the establishment of the Standing Committee.

(51)  The Commission and the Member States should, in collaboration with stakeholders, launch information campaigns to inform the construction sector, particularly economic operators and users, regarding the establishment of a common technical language, the distribution of responsibilities between the individual economic operators, the affixing of the CE marking to construction products, the revision of the basic works requirements and the systems of assessment and verification of constancy of performance.

(52)  The Commission should, within one year of the entry into force of this Regulation, submit to the European Parliament and the Council a proposal for the revision of the European standardisation system to increase the transparency of the system as a whole, above all to ensure balanced participation of stakeholders in the technical committees of European standardisation bodies and to prevent conflicts of interest among them. At the same time, measures should be taken to speed up the adoption of European standards, as well as their translation into all official languages of the European Union, and especially the translation of guidelines for SMEs,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

General Provisions

Article 1

Subject matter

This Regulation lays down conditions for the marketing of construction products by establishing rules on how to express the performance of construction products in relation to their essential characteristics and on the use of CE marking on those products.

Article 2

Definitions

For the purposes of this Regulation the following definitions shall apply:

1. "construction product" means any product or kit which is produced and placed on the market for incorporation in a permanent manner in construction works or parts thereof so that the dismantling of the product decreases the performance of the construction works and the dismantling or replacement of the product constitute construction operations;

When appropriate, for each family of construction products laid down in Table 1 of Annex V, the characteristics referred to in point (b) of this point shall be established by the Commission in accordance with the regulatory procedure with scrutiny referred to in Article 51(2); they shall relate inter alia to issues of general interest such as the environment, safety and evaluation of possible health hazards throughout the entire lifecycle of the construction product;

Article 3

Basic works requirements and essential product characteristics

║ The essential characteristics of construction products shall be laid down in harmonised technical specifications in relation to the basic works requirements which are set out in Annex I.

CHAPTER II

Declaration of performance and CE marking

Article 4

Conditions for drawing up declaration of performance

1.  The manufacturer or the importer when placing a construction product on the market shall make a declaration of performance if one of the following conditions is met:

2.  Member States shall presume the declaration of performance drawn up by the manufacturer or the importer to be accurate and reliable.

Article 5

Content of the declaration of performance

1.  The declaration of performance shall express the performance of construction products in relation to the two types of essential characteristic set out in Article 2(4) of those products in accordance with the relevant harmonised technical specifications.

2.  The declaration of performance shall contain the following information:

Article 6

Form of the declaration of performance

1.  A copy of the declaration of performance of each product which is made available on the market shall be supplied in paper form or sent by electronic means.

However, where a batch of the same product is delivered to a single user, it may be accompanied by one copy of the declaration of performance.

2.  The producer shall send in paper form the copy of the declaration of performance, if the recipient requests it.

3.  By way of derogation from paragraphs 1 and 2, the content of the declaration of performance may be made available on a web site in accordance with conditions established by the Commission.

Those measures, designed to amend non-essential elements of this Regulation ║ by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 51(2).

4.  The declaration of performances shall be drawn up using the model set out in Annex III in the official language, or one of the official languages, of the Member State in which the product is placed on the market.

Article 7

Use of CE marking

1.  The CE marking shall be affixed ▌to those construction products for which the manufacturer has drawn up a declaration of performance in accordance with Articles 4, 5 and 6. In the absence of a declaration of performance, the CE marking can not be affixed.