Index 
Texts adopted
Thursday, 13 September 2012 - Strasbourg
Renewal of the Agreement for scientific and technological cooperation between the European Community and the Federative Republic of Brazil ***
 EU-Algeria agreement on scientific and technological cooperation ***
 Forwarding to and handling by the European Parliament of classified information held by the Council on matters other than those in the area of the common foreign and security policy
 18th report on better legislation – Application of the principles of subsidiarity and proportionality (2010)
 EU Cohesion Policy Strategy for the Atlantic Area
 Exclusion of certain countries from trade preferences ***I
 Intergovernmental agreements between Member States and third countries in the field of energy ***I
 Agricultural product quality schemes ***I
 European Social Entrepreneurship Funds ***I
 European Venture Capital Funds ***I
 Implementation of the bilateral safeguard clause and the stabilisation mechanism for bananas of the Trade Agreement between the EU and Colombia and Peru ***I
 Implementation of the bilateral safeguard clause and the stabilisation mechanism for bananas of the Association Agreement between the EU and Central America ***I
 Permitted uses of orphan works ***I
 Emergency autonomous trade preferences for Pakistan ***I
 Situation in Syria
 Political use of justice in Russia
 Proposals for a European banking union (EBU)
 South Africa: massacre of striking miners
 Persecution of Rohingya Muslims in Burma
 Azerbaijan: the case of Ramil Safarov
 Tackling multiple sclerosis in Europe

Renewal of the Agreement for scientific and technological cooperation between the European Community and the Federative Republic of Brazil ***
PDF 194kWORD 32k
European Parliament legislative resolution of 13 September 2012 on the draft Council Decision concerning the renewal of the Agreement for scientific and technological cooperation between the European Community and the Federative Republic of Brazil (10475/2012 – C7-0181/2012 – 2012/0059(NLE))
P7_TA(2012)0337A7-0268/2012

(Consent)

The European Parliament,

–  having regard to the draft Council Decision (10475/2012),

–  having regard to Council Decision 2005/781/EC of 6 June 2005 on the conclusion of the Agreement for scientific and technological cooperation between the European Community and the Federative Republic of Brazil(1),

–  having regard to the request for consent submitted by the Council in accordance with Article 186 and Article 218(6), second subparagraph, point (a), point (v) of the Treaty on the Functioning of the European Union (C7-0181/2012),

–  having regard to Rules 81 and 90(7) and 46(1) of its Rules of Procedure,

–  having regard to the recommendation of the Committee on Industry, Research and Energy (A7-0268/2012),

1.  Consents to the renewal of the Agreement;

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

(1) OJ L 295, 11.11.2005, p. 37.


EU-Algeria agreement on scientific and technological cooperation ***
PDF 189kWORD 30k
European Parliament legislative resolution of 13 September 2012 on the draft Council decision on the conclusion of the Agreement between the European Union and the People's Democratic Republic of Algeria on scientific and technological cooperation (08283/2012 – C7-0122/2012 – 2011/0175(NLE))
P7_TA(2012)0338A7-0267/2012

(Consent)

The European Parliament,

–  having regard to the draft Council decision (08283/2012),

–  having regard to the draft agreement signed on 19 March 2012 (17318/2011),

–  having regard to the request for consent submitted by the Council in accordance with Article 186, Article 218(6), second subparagraph, point (a), and Article 218(7) of the Treaty on the Functioning of the European Union (C7-0122/2012),

–  having regard to Rules 81, 90(7) and 46(1) of its Rules of Procedure,

–  having regard to the recommendation of the Committee on Industry, Research and Energy (A7-0267/2012),

1.  Consents to the conclusion of the Agreement;

2.  Instructs its President to forward its position to the Council, the Commission and the governments and parliaments of the Member States and of the People's Democratic Republic of Algeria.


Forwarding to and handling by the European Parliament of classified information held by the Council on matters other than those in the area of the common foreign and security policy
PDF 171kWORD 83k
Decision
Annex
Annex
European Parliament decision of 13 September 2012 on the conclusion of an interinstitutional agreement between the European Parliament and the Council concerning the forwarding to and handling by the European Parliament of classified information held by the Council on matters other than those in the area of the common foreign and security policy (2012/2069(ACI))
P7_TA(2012)0339A7-0245/2012

The European Parliament,

–  having regard to the letter from its President of 10 April 2012,

–  having regard to the draft interinstitutional agreement between the European Parliament and the Council concerning the forwarding to and handling by the European Parliament of classified information held by the Council on matters other than those in the area of the common foreign and security policy,

–  having regard to the second paragraph of Article 1, Articles 2, 6, 10 and 11 of the Treaty on European Union (TEU) and Articles 15 and 295 of the Treaty on the Functioning of the European Union (TFEU),

–  having regard to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(1) and in particular Articles 2(5) and 9 thereof,

–  having regard to its resolution of 14 September 2011 on public access to documents (Rule 104(7)) for the years 2009-2010(2) and in particular paragraph 12 thereof,

–  having regard to Rule 23(12) and Rule 127(1) of, and Annex VIII to, its Rules of Procedure,

–  having regard to the report of the Committee on Constitutional Affairs (A7-0245/2012),

A.  whereas transparency and access to all relevant documents and information form the basis of, and are a compulsory precondition for, democracy and, in particular, enable the European Parliament to do its work for the people as provided for in the Treaties,

B.  whereas the Lisbon Treaty reinforces the requirements of transparency and the rights of citizens to participate in the decision-making of the Union; whereas limits on the right of Parliament and its Members to share relevant information with the public must constitute clearly framed and justified exceptions,

C.  whereas the principle of sincere cooperation between the European institutions is enshrined in the Treaties, specifically in Article 13(2) TEU,

D.  whereas Article 14(1) TEU states that the European Parliament shall, jointly with the Council, exercise legislative and budgetary functions and that it shall exercise functions of political control and consultation as laid down in the Treaties, and whereas, in order to exercise effectively the functions assigned to it by the Treaty, Parliament must have access to relevant Council documents,

E.  whereas the Treaties provide that the Council must consult Parliament and obtain its consent before certain legal acts can be adopted,

  F whereas Article 218(10) TFEU requires that Parliament be immediately and fully informed at all stages of the procedure relating to international agreements,

G.  whereas rules on classification and declassification of Union documents should be laid down by means of regulations adopted by the European Parliament and the Council on the basis of Article 15(3) TFEU(3),

H.  whereas the Framework Agreement on relations between the European Parliament and the European Commission(4) already lays down the rules concerning the forwarding of confidential information from the Commission to Parliament,

I.  whereas the decision of the Bureau of the European Parliament of 6 June 2011(5) lays down the rules governing the treatment of confidential information by the European Parliament,

J.  whereas the Conference of Presidents nominated a negotiating team to conduct talks with the Council of Ministers on three specific issues: the inclusion of correlation tables in Union directives, rules on Parliament's participation in international conferences and access to classified documents held by the Council; whereas the issues of correlation tables and of Parliament's participation in international conferences have meanwhile been settled(6),

1.  Considers the agreement concerning the forwarding to and handling by Parliament of classified information held by the Council on matters other than those in the area of the common foreign and security policy (‘the agreement’) to be an indispensable instrument enabling Parliament to fully exercise its powers and functions; points out that the agreement is without prejudice to the regulations on access to documents adopted in accordance with Article 15(3) TFEU;

2.  Points out that, while the scope of the agreement concerns classified information on matters other than those in the area of the common foreign and security policy, international agreements under Article 218(6) TFEU which do not relate exclusively to the common foreign and security policy ('mixed' agreements) are covered by the agreement, including any part thereof that falls under the common foreign and security policy; underlines, moreover, that access by Parliament to any classified information which relates exclusively to the common foreign and security policy will continue to be governed by arrangements under an ad hoc Council decision or under the Interinstitutional Agreement of 20 November 2002 concerning access by the European Parliament to sensitive information of the Council in the field of security and defence policy(7) (‘the 2002 Interinstitutional Agreement’) until other arrangements are agreed;

3.  Draws attention in that context to the statement by the European Parliament and the Council attached to the agreement, which states that a review of the 2002 Interinstitutional Agreement should begin in the course of 2012 and should take account of the experience gained in implementing both the agreement and the 2002 Interinstitutional Agreement;

4.  Deplores the fact that the 2002 Interinstitutional Agreement did not set out more clear-cut arrangements on access to classified information concerning the common foreign and security policy than the adoption of ad hoc decisions; stresses, therefore, that it is of the utmost importance that Parliament and the Council begin negotiations with a view to amending the 2002 Interinstitutional Agreement to reflect both the reforms carried out since it was concluded and the current situation;

5.  Welcomes the statement attached to the agreement concerning the classification of documents; regrets however that, unlike the Framework Agreement between the Commission and Parliament, the agreement does not lay down a detailed procedure to be followed in cases of doubt regarding the confidential nature of an item of information or its appropriate level of classification;

6.  Welcomes, in particular, the following aspects contained in the agreement:

   a differentiation in the handling and storage of documents depending on the level of classification;
   a differentiation in procedures as regards security clearance for Members and staff depending on the level of classification, whereby no security clearance will be necessary for Members in respect of documents beneath the level of ‘CONFIDENTIEL UE/EU CONFIDENTIAL’ or equivalent, as is the case in the abovementioned Framework Agreement between Parliament and the Commission;
   the inclusion of documents classified at the level of ‘TRÈS SECRET UE/EU TOP SECRET’ or equivalent within the scope of the agreement, as is the case in the abovementioned Framework Agreement between Parliament and the Commission;
   the fact that access to documents, as appropriate, may be granted also to rapporteurs, shadow rapporteurs, or all or certain members of the committee(s) concerned;
   provisions on close cooperation between Parliament and the Council to ensure equivalent levels of protection for classified documents;

7.  Invites the Bureau, in accordance with Rule 23(12) of Parliament's Rules of Procedure, to adapt its abovementioned decision of 6 June 2011 to take account of the agreement;

8.  Approves conclusion of the agreement in the form annexed hereto and decides to annex it to its Rules of Procedure;

9.  Instructs its President to sign the agreement with the President of the Council;

10.  Instructs its President to forward this decision, including its annex, to the Council and the Commission, for information.

ANNEX

INTERINSTITUTIONAL AGREEMENT between the European Parliament and the Council concerning the forwarding to and handling by the European Parliament of classified information held by the Council on matters other than those in the area of the Common Foreign and Security Policy

THE EUROPEAN PARLIAMENT AND THE COUNCIL,

Whereas:

(1)  Article 14(1) of the Treaty on European Union (TEU) provides that the European Parliament jointly with the Council, is to exercise legislative and budgetary functions and that it is to exercise functions of political control and consultation as laid down in the Treaties.

(2)  Article 13(2) TEU provides that each institution is to act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. That provision also stipulates that the institutions are to practice mutual sincere cooperation. Article 295 of the Treaty on the Functioning of the European Union (TFEU) provides that the European Parliament and the Council, inter alia, are to make arrangements for their cooperation and that, to that end, they may, in compliance with the Treaties, conclude interinstitutional agreements which may be of a binding nature.

(3)  The Treaties and, as appropriate, other relevant provisions provide that either in the context of a special legislative procedure or under other decision-making procedures, the Council is to consult or obtain the consent of the European Parliament before adopting a legal act. The Treaties also provide that, in certain cases, the European Parliament is to be informed about the progress or the results of a given procedure or be involved in the evaluation or the scrutiny of certain Union agencies.

(4)  In particular, Article 218(6) TFEU provides that, except where an international agreement relates exclusively to the common foreign and security policy, the Council is to adopt the decision concluding the agreement in question after obtaining the consent of or consulting the European Parliament; all such international agreements which do not relate exclusively to the common foreign and security policy are therefore covered by this Interinstitutional Agreement.

(5)  Article 218(10) of the TFEU provides that the European Parliament is to be immediately and fully informed at all stages of the procedure; that provision also applies to agreements relating to the common foreign and security policy.

(6)  In cases where implementation of the Treaties and, as appropriate, other relevant provisions would require access by the European Parliament to classified information held by the Council, appropriate arrangements governing such access should be agreed upon between the European Parliament and the Council.

(7)  Where the Council decides to grant the European Parliament access to classified information held by the Council in the area of the common foreign and security policy, it either takes ad hoc decisions to that effect or uses the Interinstitutional Agreement of 20 November 2002 between the European Parliament and the Council concerning access by the European Parliament to sensitive information of the Council in the field of security and defence policy(8) (hereinafter ‘the Interinstitutional Agreement of 20 November 2002’), as appropriate.

(8)  The Declaration by the High Representative on political accountability(9), made upon the adoption of Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the European External Action Service(10), states that the High Representative will review and where necessary propose to adjust the existing provisions on access for Members of the European Parliament to classified documents and information in the field of security and defence policy (i.e. the Interinstitutional Agreement of 20 November 2002).

(9)  It is important that the European Parliament be associated with the principles, standards and rules for protecting classified information which are necessary in order to protect the interests of the European Union and of the Member States. Moreover, the European Parliament will be in a position to provide classified information to the Council.

(10)  On 31 March 2011 the Council adopted Decision 2011/292/EU on the security rules for protecting EU classified information(11) (hereinafter ‘the Council's security rules’).

(11)  On 6 June 2011, the Bureau of the European Parliament adopted a Decision concerning the rules governing the treatment of confidential information by the European Parliament(12) (hereinafter ‘the European Parliament's security rules’).

(12)  The security rules of Union institutions, bodies, offices or agencies should together constitute a comprehensive and coherent general framework within the European Union for protecting classified information, and should ensure equivalence of basic principles and minimum standards. The basic principles and minimum standards laid down in the European Parliament's security rules and in the Council's security rules should accordingly be equivalent.

(13)  The level of protection afforded to classified information under the European Parliament's security rules should be equivalent to that afforded to classified information under the Council's security rules.

(14)  The relevant services of the European Parliament's Secretariat and of the General Secretariat of the Council will cooperate closely to ensure that equivalent levels of protection are applied to classified information in both institutions.

(15)  This Agreement is without prejudice to existing and future rules on access to documents adopted in accordance with Article 15(3) TFEU; rules on the protection of personal data adopted in accordance with Article 16(2) TFEU; rules on the European Parliament's right of inquiry adopted in accordance with third paragraph of Article 226 TFEU; and relevant provisions relating to the European Anti-Fraud Office (OLAF),

HAVE AGREED AS FOLLOWS:

Article 1

Purpose and scope

This Agreement sets out arrangements governing the forwarding to and handling by the European Parliament of classified information held by the Council, on matters other than those in the area of the common foreign and security policy, which is relevant in order for the European Parliament to exercise its powers and functions. It concerns all such matters, namely:

   (a) proposals subject to a special legislative procedure or to another decision-making procedure under which the European Parliament is to be consulted or is required to give its consent;
   (b) international agreements on which the European Parliament is to be consulted or is required to give its consent pursuant to Article 218(6) TFEU;
   (c) negotiating directives for international agreements referred to in point (b);
   (d) activities, evaluation reports or other documents on which the European Parliament is to be informed; and
   (e) documents on the activities of those Union agencies in the evaluation or scrutiny of which the European Parliament is to be involved.

Article 2

Definition of ‘classified information’

For the purposes of this Agreement, ‘classified information’ shall mean any or all of the following:

  (a) ‘EU classified information’ (EUCI) as defined in the European Parliament's security rules and in the Council's security rules and bearing one of the following security classification markings:
   RESTREINT UE/EU RESTRICTED;
   CONFIDENTIEL UE/EU CONFIDENTIAL;
   SECRET UE/EU SECRET;
   TRÈS SECRET UE/EU TOP SECRET;
   (b) classified information provided to the Council by Member States and bearing a national security classification marking equivalent to one of the security classification markings used for EUCI listed in point (a);
   (c) classified information provided to the European Union by third States or international organisations which bears a security classification marking equivalent to one of the security classification markings used for EUCI listed in point (a), as provided for in the relevant security of information agreements or administrative arrangements.

Article 3

Protection of classified information

1.  The European Parliament shall protect, in accordance with its security rules and with this Agreement, any classified information provided to it by the Council.

2.  As equivalence is to be maintained between the basic principles and minimum standards for protecting classified information laid down by the European Parliament and by the Council in their respective security rules, the European Parliament shall ensure that the security measures in place in its premises afford a level of protection to classified information equivalent to that afforded to such information on Council premises. The relevant services of the European Parliament and the Council shall cooperate closely to that effect.

3.  The European Parliament shall take the appropriate measures to ensure that classified information provided to it by the Council shall not:

   (a) be used for purposes other than those for which access was provided;
   (b) be disclosed to persons other than those to whom access has been granted in accordance with Articles 4 and 5, or made public;
   (c) be released to other Union institutions, bodies, offices or agencies, or to Member States, third States or international organisations without the prior written consent of the Council.

4.  The Council may grant the European Parliament access to classified information which originates in other Union institutions, bodies, offices or agencies, or in Member States, third States or international organisations only with the prior written consent of the originator.

Article 4

Personnel security

1.  Access to classified information shall be granted to Members of the European Parliament in accordance with Article 5(4).

2.  Where the information concerned is classified at the level CONFIDENTIEL UE/EU CONFIDENTIAL, SECRET UE/EU SECRET or TRÈS SECRET UE/EU TOP SECRET or its equivalent, access may be granted only to Members of the European Parliament authorised by the President of the European Parliament:

   (a) who have been security-cleared in accordance with the European Parliament's security rules; or
   (b) for whom notification has been made by a competent national authority that they are duly authorised by virtue of their functions in accordance with national laws and regulations.

Notwithstanding the first subparagraph, where the information concerned is classified at the level CONFIDENTIEL UE/EU CONFIDENTIAL or its equivalent, access may also be granted to those Members of the European Parliament determined in accordance with Article 5(4) who have signed a solemn declaration of non-disclosure in accordance with the European Parliament's security rules. The Council shall be informed of the names of the Members of the European Parliament granted access under this subparagraph.

3.  Before being granted access to classified information, Members of the European Parliament shall be briefed on and acknowledge their responsibilities to protect such information in accordance with the European Parliament's security rules, and briefed on the means of ensuring such protection.

4.  Access to classified information shall be granted only to those officials of the European Parliament and other Parliament employees working for political groups who:

   (a) have been designated in advance as having a need-to-know by the relevant parliamentary body or office-holder determined in accordance with Article 5(4);
   (b) have been security-cleared to the appropriate level in accordance with the European Parliament's security rules where the information is classified at the level CONFIDENTIEL UE/EU CONFIDENTIAL, SECRET UE/EU SECRET or TRÈS SECRET UE/EU TOP SECRET or its equivalent; and
   (c) have been briefed and received written instructions on their responsibilities for protecting such information as well as on the means of ensuring such protection, and have signed a declaration acknowledging receipt of those instructions and undertaking to comply with them in accordance with the European Parliament's security rules.

Article 5

Procedure for accessing classified information

1.  The Council shall provide classified information as referred to in Article 1 to the European Parliament where it is under a legal obligation to do so pursuant to the Treaties or to legal acts adopted on the basis of the Treaties. The parliamentary bodies or office-holders referred to in paragraph 3 may also present a written request for such information.

2.  In other cases, the Council may provide classified information as referred to in Article 1 to the European Parliament either at its own initiative or on written request from one of the parliamentary bodies or office-holders referred to in paragraph 3.

3.  The following parliamentary bodies or office-holders may present written requests to the Council:

   (a) the President;
   (b) the Conference of Presidents;
   (c) the Bureau;
   (d) the chair(s) of the committee(s) concerned;
   (e) the rapporteur(s) concerned.

Requests from other Members of the European Parliament shall be made via one of the parliamentary bodies or office-holders referred to in the first subparagraph.

The Council shall respond to such requests without delay.

4.  Where the Council is under a legal obligation to, or has decided to, grant the European Parliament access to classified information, it shall determine the following in writing before that information is forwarded, together with the relevant body or office-holder as listed in paragraph 3:

  (a) that such access may be granted to one or more of the following:
   (i) the President;
   (ii) the Conference of Presidents;
   (iii) the Bureau;
   (iv) the chair(s) of the committee(s) concerned;
   (v) the rapporteur(s) concerned;
   (vi) all or certain members of the committee(s) concerned; and
   (b) any specific handling arrangements for protecting such information.

Article 6

Registration, storage, consultation and discussion of classified information in the European Parliament

1.  Classified information provided by the Council to the European Parliament, where it is classified at the level CONFIDENTIEL UE/EU CONFIDENTIAL, SECRET UE/EU SECRET or TRÈS SECRET UE/EU TOP SECRET or its equivalent:

   (a) shall be registered for security purposes to record its life-cycle and ensure its traceability at all times;
   (b) shall be stored in a secure area which meets the minimum standards of physical security laid down in the Council's security rules and the European Parliament's security rules, which shall be equivalent; and
  (c) may be consulted by the relevant Members of the European Parliament, officials of the European Parliament and other Parliament employees working for political groups referred to in Article 4(4) and Article 5(4) only in a secure reading room within the European Parliament's premises. In this case, the following conditions shall apply:
   (i) the information shall not be copied by any means, such as photocopying or photographing;
   (ii) no notes shall be taken; and
   (iii) no electronic communication devices may be taken into the room.

2.  Classified information provided by the Council to the European Parliament, where it is classified at the level RESTREINT UE/EU RESTRICTED or its equivalent, shall be handled and stored in accordance with the European Parliament's security rules which shall afford a level of protection for such classified information equivalent to that of the Council.

Notwithstanding the first subparagraph, for a period of 12 months following the entry into force of this Agreement, information classified at the level RESTREINT UE/EU RESTRICTED or its equivalent shall be handled and stored in accordance with paragraph 1. Access to such classified information shall be governed by points (a) and (c) of Article 4(4) and by Article 5(4).

3.  Classified information may be handled only on communication and information systems which have been duly accredited or approved in accordance with standards equivalent to those laid down in the Council's security rules.

4.  Classified information provided orally to recipients in the European Parliament shall be subject to the equivalent level of protection as that afforded to classified information in written form.

5.  Notwithstanding point (c) of paragraph 1 of this Article, information classified up to the level of CONFIDENTIEL UE/EU CONFIDENTIAL or its equivalent provided by the Council to the European Parliament may be discussed at meetings held in camera and attended only by Members of the European Parliament and those officials of the European Parliament and other Parliament employees working for political groups who have been granted access to the information in accordance with Article 4(4) and Article 5(4). The following conditions shall apply:

   documents shall be distributed at the beginning of the meeting and collected again at the end;
   documents shall not be copied by any means, such as photocopying or photographing;
   no notes shall be taken;
   no electronic communication devices may be taken into the room; and
   the minutes of the meeting shall make no mention of the discussion of the item containing classified information.

6.  Where meetings are necessary to discuss information classified at the level SECRET UE/EU SECRET or TRÈS SECRET UE/EU TOP SECRET or its equivalent, specific arrangements shall be agreed on a case-by-case basis between the European Parliament and the Council.

Article 7

Breach of security, loss or compromise of classified information

1.  In the case of a proven or suspected loss or compromise of classified information provided by the Council, the Secretary-General of the European Parliament shall immediately inform the Secretary-General of the Council thereof. The Secretary-General of the European Parliament shall conduct an investigation and shall inform the Secretary-General of the Council of the results of the investigation and of measures taken to prevent a recurrence. Where a Member of the European Parliament is concerned, the President of the European Parliament shall act together with the Secretary-General of the European Parliament.

2.  Any Member of the European Parliament who is responsible for a breach of the provisions laid down in the European Parliament's security rules or in this Agreement may be liable to measures and penalties in accordance with Rules 9(2) and 152 to 154 of the European Parliament's Rules of Procedure.

3.  Any official of the European Parliament or other Parliament employee working for a political group who is responsible for a breach of the provisions laid down in the European Parliament's security rules or in this Agreement may be liable to the penalties set out in the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Union, laid down in Council Regulation (EEC, Euratom, ECSC) No 259/68(13).

4.  Persons responsible for losing or compromising classified information may be liable to disciplinary and/or legal action in accordance with the applicable laws, rules and regulations.

Article 8

Final provisions

1.  The European Parliament and the Council, each for its own part, shall take all necessary measures to ensure implementation of this Agreement. They shall cooperate to that effect, in particular by organising visits to monitor the implementation of the security-technical aspects of this Agreement.

2.  The relevant services of the European Parliament's Secretariat and of the General Secretariat of the Council shall consult each other before either institution modifies its respective security rules, in order to ensure that equivalence of basic principles and minimum standards for protecting classified information is maintained.

3.  Classified information shall be provided to the European Parliament under this Agreement once the Council, together with the European Parliament, has determined that equivalence has been achieved between the basic principles and minimum standards for protecting classified information in the European Parliament's and in the Council's security rules, on the one hand, and between the level of protection afforded to classified information in the premises of the European Parliament and of the Council, on the other.

4.  This Agreement may be reviewed at the request of either institution in the light of experience in implementing it.

5.  This Agreement shall enter into force on the date of its publication in the Official Journal of the European Union.

Done at … on …

For the European Parliament For the Council

The President The President

STATEMENTS

(a)  Statement by the European Parliament and the Council on Article 8(3)

The European Parliament and the Council will cooperate so that the determination referred to in Article 8(3) of the Interinstitutional Agreement of ...(14) between the European Parliament and the Council concerning the forwarding to and handling by the European Parliament of classified information held by the Council on matters other than those in the area of the common foreign and security policy can be made by the date of entry into force of that Agreement.

(b)  Statement by the European Parliament and the Council on the classification of documents

The European Parliament and the Council recall that the underclassification or overclassification of documents undermines the credibility of security rules.

The Council will continue to ensure that the correct level of classification is applied to information originating within the Council in accordance with its security rules. The Council will review the level of classification of any document before forwarding it to the European Parliament, in particular to verify whether such level of classification is still appropriate.

The European Parliament will protect any classified information provided to it in a manner commensurate with its level of classification. In the event of it requesting whether a classified document provided by the Council may be downgraded or declassified, such downgrading or declassification may occur only with the prior written consent of the Council.

(c)  Statement by the European Parliament and the Council on access to classified information in the area of the common foreign and security policy

Recalling the Declaration by the High Representative on political accountability(15), the European Parliament and the Council consider that a review of the Interinstitutional Agreement of 20 November 2002 between the European Parliament and the Council concerning access by the European Parliament to sensitive information of the Council in the field of security and defence policy(16) should begin in the course of 2012.

This review will be undertaken respecting the specific role of the European Parliament in the area of the common foreign and security policy and taking account of experience gained in implementing both the Interinstitutional Agreement of ...(17) between the European Parliament and the Council concerning the forwarding to and handling by the European Parliament of classified information held by the Council on matters other than those in the area of the common foreign and security policy and the above-mentioned Interinstitutional Agreement of 20 November 2002.

Pending completion of this review, where the Council decides to grant the European Parliament access to classified information held by the Council in the area of the common foreign and security policy, it proceeds as described in recital 7 of the Interinstitutional Agreement of ...(18) between the European Parliament and the Council concerning the forwarding to and handling by the European Parliament of classified information held by the Council on matters other than those in the area of the common foreign and security policy and in accordance with paragraph 2 of the Declaration by the High Representative referred to above.

The European Parliament and the Council agree that the implementation of this statement will take duly into account the specific nature and the especially sensitive content of information in the area of the common foreign and security policy.

(d)  Statement by the Council on unclassified Council documents

The Council confirms that the Interinstitutional Agreement of ...(19) between the European Parliament and the Council concerning the forwarding to and handling by the European Parliament of classified information held by the Council on matters other than those in the area of the common foreign and security policy does not apply to unclassified documents internal to the Council (i.e. those marked ‘LIMITÉ’).

(e)  Statement by the European Parliament on classified information held by the Commission

The European Parliament underlines that classified information of which the European Commission is the originator and/or which is forwarded to the European Parliament by the European Commission shall be forwarded and handled in accordance with the provisions set out in the Framework Agreement of 20 October 2010 on relations between the European Parliament and the European Commission(20).

(1) OJ L 145, 31.5.2001, p. 43.
(2) Texts adopted, P7_TA(2011)0378.
(3) See also in this context Parliament's position of 15 December 2011 on the proposal for a regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (recast) (P7_TA(2011)0580) and its above-mentioned resolution of 14 September 2011 on public access to documents (Rule 104(7)) for the years 2009-2010.
(4) OJ L 304, 20.11.2010, p. 47.
(5) OJ C 190, 30.6.2011, p. 2.
(6) For correlation tables, see the Joint Political Declaration of the European Parliament, the Council and the Commission on explanatory documents annexed to Parliament's legislative resolution of 27 October 2011 on the proposal for a directive of the European Parliament and of the Council on minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted (recast) (P7_TA(2011)0469); as regards Parliament's participation, the matter was concluded by way of an exchange of letters.
(7) OJ C 298, 30.11.2002, p. 1.
(8) OJ C 298, 30.11.2002, p. 1.
(9) OJ C 210, 3.8.2010, p. 1.
(10) OJ L 201, 3.8.2010, p. 30.
(11) OJ L 141, 27.5.2011, p. 17.
(12) OJ C 190, 30.6.2011, p. 2.
(13) OJ L 56, 4.3.1968, p. 1.
(14)* Date of signature of the Interinstitutional Agreement.
(15) OJ C 210, 3.8.2010, p. 1.
(16) OJ C 298, 30.11.2002, p. 1.
(17)* Date of signature of the Interinstitutional Agreement.
(18)* Date of signature of the Interinstitutional Agreement.
(19)* Date of signature of the Interinstitutional Agreement.
(20) OJ L 304, 20.11.2010, p. 47.


18th report on better legislation – Application of the principles of subsidiarity and proportionality (2010)
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European Parliament resolution of 13 September 2012 on the 18th report on Better legislation - Application of the principles of subsidiarity and proportionality (2010) (2011/2276(INI))
P7_TA(2012)0340A7-0251/2012

The European Parliament,

–  having regard to the Interinstitutional Agreement on better law-making(1),

–  having regard to the Joint Political Declaration of the Member States and the Commission of 28 September 2011 on explanatory documents(2),

–  having regard to the Joint Political Declaration of the European Parliament, the Council and the Commission of 27 October 2011 on explanatory documents(3),

–  having regard to the practical arrangements agreed on 22 July 2011 between the competent services of the European Parliament and the Council for the implementation of Article 294(4) TFEU in the event of agreements at first reading,

–  having regard to its resolution of 14 September 2011 on better legislation, subsidiarity and proportionality and smart regulation(4),

–  having regard to its resolution of 14 September 2011 on the twenty-seventh annual report on monitoring the application of European Union law(5),

–  having regard to its resolution of 8 June 2011 on guaranteeing independent impact assessments(6),

–  having regard to the Commission report on subsidiarity and proportionality (18th report on Better Lawmaking covering the year 2010) (COM(2011)0344),

–  having regard to the Commission report on minimising regulatory burdens for SMEs - Adapting EU regulation to the needs of micro-enterprises (COM(2011)0803),

–  having regard to the Commission communication on the 28th annual report on monitoring the application of EU law (2010) (COM(2011)0588),

–  having regard to the Commission communication on Smart Regulation in the European Union (COM(2010)0543),

–  having regard to the conclusions of the Competitiveness Council of 5 December 2011 on impact assessment,

–  having regard to the conclusions of the Competitiveness Council of 30 May 2011 on smart regulation,

–  having regard to the report of 15 November 2011 of the High Level Group of Independent Stakeholders on Administrative Burdens, entitled ’Europe can do better: Report on the best practices in the Member States to implement EU legislation in the least burdensome way’,

–  having regard to Rule 48 of its Rules of Procedure,

–  having regard to the report of the Committee on Legal Affairs and the opinion of the Committee on Constitutional Affairs (A7-0251/2012),

A.  whereas in 2010 the European Parliament received more than seven times as many contributions as reasoned opinions from national parliaments;

B.  whereas the smart regulation agenda constitutes an attempt to consolidate efforts in terms of better lawmaking, simplification of EU law and the reduction of administrative and regulatory burdens, and to embark on a path towards good governance based on evidence-based policymaking in which impact assessments and ex post controls play an essential role;

C.  whereas the Interinstitutional Agreement on better lawmaking of 2003 has become ill-suited to the current legislative environment as created by the Treaty of Lisbon, not least in view of the piecemeal approach taken by the EU institutions in terms of adopting joint political declarations on explanatory documents and secretariat-level practical arrangements for the implementation of Article 294 TFEU;

D.  whereas an incorrect choice between using delegated acts under Article 290 TFEU or implementing acts under Article 291 TFEU in a legislative act subjects it to the risk of being annulled by the Court of Justice;

General comments

1.  Underlines the overarching need for legislation to be clear, simple, easy to understand and accessible to all;

2.  Stresses that the principles of subsidiarity and proportionality must be respected by the European institutions when legislating;

3.  Expresses its deep concern regarding the Impact Assessment Board's view that the Commission's consideration of these principles in its impact assessments are is often unsatisfactory in nature; considers it of the utmost importance that the Commission address any deficiencies in this area in order to ensure that these principles are respected;

4.  Reiterates its repeated calls for the 2003 Interinstitutional Agreement on Better Lawmaking to be renegotiated in order to take account of the new legislative environment created by the Treaty of Lisbon, consolidate current best practice and bring the agreement up to date in line with the smart regulation agenda; suggests that arrangements concerning the demarcation between delegated and implementing acts be agreed in that context; asks its President to take the necessary steps to open negotiations with the other institutions;

Subsidiarity control by national parliaments

5.  Welcomes the closer involvement of the national parliaments in the European legislative process, particularly with regard to scrutinising legislative proposals in the light of the principles of subsidiarity and proportionality;

6.  Notes that in 2010 211 opinions were received from national parliaments but that only a small number of them – 34 in all – raised subsidiarity concerns; points out that the conditions of Article 2, first sentence, of the Protocol on the application of the principles of subsidiarity and proportionality were fulfilled for the first time in May 2012 in connection with the proposal for a Council regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services (COM(2012)0130); calls on the Commission, in this connection, to carry out the necessary review of the draft with the utmost regard for the express will of the national parliaments, as the new scrutinising procedure is intended to ensure that decisions are taken as closely to the citizens as possible;

7.  Calls for an independent analysis to be carried out on behalf of the Commission to examine the role of regional or local parliaments in the area of subsidiarity controls; points, in this context, to the IPEX internet platform, financed by the European Parliament and national parliaments, which is particularly helpful for exchanging information in connection with the scrutinising procedures;

8.  Suggests that the institutions involved in lawmaking should be reminded of the need to ensure that the principles of subsidiarity and proportionality are correctly applied under the terms of Protocol No 2 annexed to the Treaty on the Functioning of the European Union;

9.  Notes that the criticism made by the Impact Assessment Board concerning consideration of subsidiarity was also made by a number of national parliaments in their submissions under the subsidiarity control mechanism introduced in the Treaty of Lisbon; further notes, however, that on no occasion in 2010 was the threshold for activating the formal procedures under Protocol No 2, as annexed to the Treaties, reached;

10.  Notes, however, that on 22 May 2012, for the first time since the entry into force of the Lisbon Treaty, national parliaments triggered the ’yellow card’ procedure by adopting reasoned opinions opposing the Commission proposal for a Council regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services (COM(2012)0130);

11.  Notes with concern that some opinions from national parliaments highlight the fact that in a number of Commission proposals the subsidiarity justification is insufficient or non-existent;

12.  Highlights the need for the European institutions to make it possible for national parliaments to scrutinise legislative proposals by ensuring that the Commission provides detailed and comprehensive grounds for its decisions on subsidiarity and proportionality, in accordance with Article 5 of Protocol No 2 to the Treaty on the Functioning of the European Union (TFEU);

13.  Suggests that an assessment be made to determine whether appropriate criteria should be laid down at EU level for evaluating compliance with the principles of subsidiarity and proportionality;

14.  Considers that the current timescales laid down in the Treaties for national parliaments to carry out subsidiarity checks should be reviewed to determine whether they are sufficient; suggests that the EP, the Commission and representatives of the national parliaments investigate how any impediments to national parliaments’ participation in the subsidiarity control mechanism might be alleviated;

15.  Recalls that, in accordance with the principle of subsidiarity, the EU shall take action outside its areas of exclusive competence only and insofar as the objectives of a planned measure can be better achieved at Union level than at national, regional or local level; subsidiarity may, therefore, lead both to an extension of the activities of the Union within the framework of its powers when circumstances so require and, conversely, to the action concerned being restricted or curtailed where it is no longer justified; emphasises that subsidiarity, in this context, not only applies to the relationship between the EU and its Member States but also encompasses the regional and local levels;

16.  Urges the Commission to improve and regularise the statements which justify its legislative initiatives on the grounds of subsidiarity; recalls that EU administrative law should be adjusted and simplified in order to reduce administrative and regulatory costs; considers that, in this context, the principles of subsidiarity and proportionality should be applied accordingly;

17.  Regrets that the Commission has not properly reported on the application of the principle of proportionality, especially with regard to the use of Articles 290 and 291 TFEU on delegated and implementing acts; warns the Council not to blur the clear distinction between delegated and implementing acts; urges the Commission to ensure the proper application of these two articles;

18.  Recognises that there has been only one judgment by the European Court of Justice on proportionality and subsidiarity in the reporting period (on ’roaming’ in mobile telephony), noting that the Court found that there was no breach of either of those two principles in that case, since it was necessary to limit prices for final consumers in order to protect their interests, and as this objective was best achieved at Union level;

19.  Welcomes, in this regard, the introduction of the above-mentioned revised IPEX website, which can act as a catalyst for further improvements and engagement in the operation of the subsidiarity control mechanism, and stresses the need to promote this site further;

20.  Emphasises that it is essential for scrutiny of the principle of subsidiarity to extend to the regional and local levels in the Member States; welcomes, in this regard, the Subsidiarity Annual Report published by the Committee of the Regions and the REGPEX website set up by the Committee, both of which assist the exchange of information and will make for further improvements in the monitoring of subsidiarity;

21.  Calls on the national parliaments, in accordance with the Subsidiarity Protocol, to consult the regional parliaments with legislative powers; calls on the Commission, in the scrutiny of subsidiarity and particularly in its annual reports on subsidiarity and proportionality, to pay attention to the role of the regional parliaments with legislative powers;

Evidence-based policymaking

22.  Stresses the importance of the smart regulation agenda and of developing new regulatory approaches in order to ensure that EU legislation is fit for its purpose and can effectively contribute to facing future challenges of competitiveness and growth;

23.  Notes the crucial importance of impact assessments as tools for aiding decision-making in the legislative process, and stresses the need, in this context, for proper consideration to be given to issues relating to subsidiarity and proportionality;

24.  Emphasises Parliament's commitment to its obligations under the smart regulation agenda, and encourages use of Parliament's Impact Assessment Directorate by committees engaging in legislative work as a matter of routine; recalls the commitment made by Parliament and Council in the 2005 Interinstitutional Common Approach to Impact Assessment to carry out impact assessments prior to the adoption of substantive amendments, and calls on the committees to make use of the new Impact Assessment Directorate in implementing this commitment;

25.  Suggests that as part of a more systematic approach to the consideration of impact assessments within Parliament, the Impact Assessment Directorate should be asked by committees to prepare a short summary of each impact assessment for consideration when an initial exchange of views is held; suggests that this summary could include a brief conclusion as to the quality of the impact assessment, together with a short note on the key findings and any areas of analysis omitted by the Commission; is of the view that this would greatly enhance the scrutiny of draft legislation by Parliament;

26.  Considers it essential that the methodologies applied by the Impact Assessment Directorate are compatible and comparable with the approach adopted by the Commission, and calls on Parliament and the Commission to cooperate fully in this regard;

27.  Recalls the 2003 Interinstitutional Agreement on Better Lawmaking, and encourages the Council to complete work on establishing its own mechanism for undertaking impact assessments without undue delay, in compliance with its obligations under the 2003 agreement;

28.  Encourages the Commission to continue improving its own approach to impact assessments, and calls on it to strengthen the role of the Impact Assessment Board and, in particular, only to finalise and present legislative proposals where they have been approved with a favourable opinion from the Board;

Minimising regulatory burdens

29.  Welcomes the Commission's communication on minimising regulatory burdens for SMEs; considers it essential that the Commission respects the ’think small first’ principle when preparing legislation, and is encouraged by the commitment shown by the Commission and its desire to go beyond present approaches and introduce lighter regimes and exemptions for smaller businesses;

30.  Recalls Parliament's position on the issue of regulatory exemptions, and urges the Commission to extend exemption to SMEs where regulatory provisions would disproportionately affect them and there is no sound reason for including them in the scope of the legislation; welcomes the renewed focus on a robust application of the SME test, and sees the micro-dimension as an inherent part of that test in which all available options are systematically assessed; in this regard welcomes the Commission's position regarding inclusion of micro-entities, which should only be included to the full extent in the scope of draft legislation if they satisfy the strengthened SME test;

31.  Reminds the Commission, however, that the reversal of the burden of proof should not automatically lead to more complex legislation which has been developed without SMEs in mind; calls on the Commission to strive for the simplification of legislation wherever possible, and to continue to prepare and present proposals with accessibility and ease of implementation for SMEs as guiding principles in the drafting of legislation, even where an exemption may apply;

32.  Stresses the need for the Commission to ensure consistent application of the enhanced SME test across its directorates, and calls on Member States to include similar considerations in their national decision-making processes;

33.  Welcomes the ’tailor-made’ approach to legislation proposed by the Commission; calls for consideration to be given to possible future application of ’tailor-made’ approaches when existing legislation is reviewed;

Follow-up, ex post controls and feedback into the policymaking cycle

34.  Welcomes the Commission's adoption of Parliament's recommendation on publication of information concerning implementation, thus addressing the problem of ’gold-plating’; reminds the Commission and the Council that in order to ensure that existing and future programmes to reduce burdens are successful, active cooperation between the Commission and the Member States is necessary, so as to avoid discrepancies in the interpretation and implementation of legislation; urges Member States to reduce their administrative burden by a further 25% by 2015;

35.  Considers the proposals to ’name and shame’ European institutions which backtrack on simplification to be well-intentioned; believes, however, that a more constructive engagement in the pre-legislative process with relevant stakeholders and the institutions, together with adherence to the general commitments to simplification and the smart regulation agenda, would render such publicity unnecessary; suggests, nonetheless, that those Member States which engage the most in the ’gold-plating’ of directives should be named, alongside those which are the biggest offenders when it comes to late, imprecise or incomplete transposition of EU law;

36.  Recalls its previous statements concerning the need for a comprehensive review of the consultation process undertaken by the Commission, and looks forward to the Commission adopting Parliament's recommendations in this area before the end of 2012;

Ensuring continuity and vigilance

37.  Underlines the importance of these measures as a key element for renewed economic growth in the EU; recalls, in this regard, its resolution on smart regulation, and invites the Commission to put forward proposals implementing regulatory offsetting, which would require equivalent cost offsets to be identified in advance of new legislation that would introduce costs being imposed; recalls, furthermore, its position in favour of extending and expanding the scope of the Administrative Burden Reduction Programme, and urges the Commission to introduce, in its 2013 Work Programme, a programme which addresses the need to reduce the overall regulatory burden;

o
o   o

38.  Instructs its President to forward this resolution to the Council, the Commission and the national parliaments.

(1) OJ C 321, 31.12.2003, p. 1.
(2) OJ C 369, 17.12.2011, p. 14.
(3) OJ C 369, 17.12.2011, p. 15.
(4) Texts adopted, P7_TA(2011)0381.
(5) Texts adopted, P7_TA(2011)0377.
(6) Texts adopted, P7_TA(2011)0259.


EU Cohesion Policy Strategy for the Atlantic Area
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European Parliament resolution of 13 September 2012 on the EU Cohesion Policy Strategy for the Atlantic Area (2011/2310(INI))
P7_TA(2012)0341A7-0222/2012

The European Parliament,

–  having regard to Article 225 of the Treaty on the Functioning of the European Union,

–  having regard to the communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions entitled ’Developing a Maritime Strategy for the Atlantic Ocean Area’ (COM(2011)0782),

–  having regard to the conclusions adopted by the Council on 14 June 2010 concerning the European Union strategy for the Atlantic area,

–  having regard to the European Union Strategies for the Baltic Sea Region and the Danube Region,

–  having regard to its resolution of 9 March 2011 on the European Strategy for the Atlantic Region(1),

–  having regard to the opinion of the European Economic and Social Committee on the Commission communication entitled ’Developing a Maritime Strategy for the Atlantic Ocean Area’ (ECO/306),

–  having regard to the opinion of the Committee of the Regions on the Commission communication entitled ’Developing a Maritime Strategy for the Atlantic Ocean Area’,

   having regard to its resolution of 23 June 2011 on Objective 3: future agenda for cross-border, transnational and interregional cooperation(2),

–  having regard to Rule 48 of its Rules of Procedure,

–  having regard to the report of the Committee on Regional Development and the opinion of the Committee on Transport and Tourism (A7-0222/2012),

A.  whereas the Atlantic area has a number of defining characteristics that require political answers at European level:

   it is a dynamic maritime area;
   it is an area with a fragile marine environment;
   it is an area that forms the western approach to the EU;
   it is an outlying area within the EU;

B.  whereas the situation has become worse as a result of the European crisis and many regions in the Atlantic area have suffered setbacks in their levels of development;

C.  whereas the Atlantic area is composed of a rather disparate collection of regions, many of which have still not reached the EU's average income level and thus remain under the convergence objective for the purposes of European cohesion policy;

D.  whereas a macroregional strategy is essential in order to revitalise the Atlantic area by offering a common approach, for the purposes of:

   tackling the common challenges and issues facing the Atlantic countries and regions;
   promoting synergies among the various instruments and levels of action involved in spatial planning policies;
   involving stakeholders (the private sector, regional and local public authorities, civil society organisations) in designing and implementing spatial planning policies;

E.  whereas the strategy should cover all the EU's Atlantic regions, including the coastal regions of the English Channel and the Irish Sea, the outermost regions and the overseas countries and territories, and should take into account the interactions between Atlantic regions and North Sea regions;

F.  whereas we must secure environmentally, socially and economically sustainable development for the above regions;

A spatial planning policy for the Atlantic

1.  Hopes that the strategy will adopt a broad approach by setting out an agreed strategic vision for the future development of the Atlantic area, incorporating the territorial dimension, developing linkages between land and sea, and establishing a framework to better manage maritime and terrestrial planning policy in the Atlantic regions;

2.  Requests that the valuable lessons learned from the development of existing macroregional and other transnational strategies be taken fully on board in the Atlantic Strategy process, particularly on issues such as governance, policy development, communication and ownership, targets and evaluation;

3.  Believes that cohesion policy is a key instrument for tackling the challenges of the EU's territorial policy and boosting endogenous development in the regions within the macroregion;

4.  Calls for the Strategy and its Action Plan to place a strong emphasis on jobs, growth and investment in regions, both maritime and inland;

5.  Calls for the creation of a permanent maritime spatial planning structure for the Atlantic area, comprising the regions and Member States concerned and the Commission, for the purposes of coordinating the strategy laid down and monitoring the implementation of the action plan from an intersectoral and transnational perspective;

6.  Considers an EU-wide integrated marine and maritime data management system to be of crucial importance with a view to taking advantage of maritime opportunities; calls on the Commission to continue its efforts to improve data management and accessibility;

7.  Considers that vigorous action is needed to safeguard the ecological balance and biodiversity of the Atlantic and reduce the carbon footprint in that area;

8.  Believes that sea-fishing, in particular small-scale and coastal fisheries, and aquaculture activities must play a key role in maritime planning policies, since they could make a decisive contribution to more vigorous economic growth and to wealth and job creation; takes the view that the regionalisation of the common fisheries policy should result in the introduction of an ecosystem-based management approach tailored to the needs of the Atlantic area, and in this connection asks the Commission to engage in prior consultations with the Regional Advisory Councils (RACs) in the context of the implementation of the common fisheries policy and the management plans;

9.  Calls for local, regional and crossborder partnerships to be set up with the aim of improving risk prevention and risk management capacities in the Atlantic in connection with maritime and land-based accidents, natural disasters and criminal activities (piracy, trafficking, illegal fishing, etc), and for sufficient and flexible mechanisms to be created to cover replacement and compensation for damage incurred; calls for a European coastguard service to be established;

10.  Calls for the improvement of the existing vessel monitoring systems, immediate application of EMSA's strengthened powers, and the conclusion of data-sharing agreements between the competent authorities, in order to permit the identification and tracking of ships and fight threats such as crossborder crime, smuggling, illegal fishing and trafficking; stresses the importance of promoting the deployment and implementation of the European satellite navigation programmes (EGNOS and Galileo), in order to cover search and rescue support systems in the Atlantic; recalls the need to ensure long-term financing by the Union of the Global Monitoring for Environment and Security (GMES) programme, which contributes in particular to the prevention and management of maritime risks;

11.  Considers that the territorial dimension of the strategy is essential for purposes of making the Atlantic regions more accessible, and that it should focus on linking the Atlantic area with the European mainland, connecting the transport, energy and information networks, developing the rural and urban parts of the hinterland, and improving the land-sea links, including the outermost and island regions;

12.  Believes that the motorways of the sea help to provide access to the Atlantic regions, increase trade, stimulate port-based economic activity, encourage tourism and reduce CO2 emissions; considers it important that CO2 emission reduction measures should allow for Atlantic seaborne trade and the specific features of the outermost regions, where the carriage of goods and passengers by sea is vital for territorial, social, and economic cohesion in the true sense; calls for the motorways of the sea to be eligible for support under the Connecting Europe Facility;

13.  Encourages, for the sake of the sustainability of the motorways of the sea and in line with the Europe 2020 Strategy, the establishment of specific recommendations concerning vessels, with a view to promoting the inclusion of propulsion systems with low carbon emissions and the use of building criteria that are demanding in terms of efficiency, comfort, capacity, safety, location and telecommunications; stresses that such recommendations should focus on increasing the efficiency of this mode of transport, ensuring environmental preservation and facilitating this mode's integration with other transport networks and modes;

14.  Considers it essential to improve the connections between the Atlantic regions and the rest of Europe through investment in multimodal transport infrastructures;

15.  Stresses the need for effective crossborder coordination and cooperation for the construction and use of road and rail infrastructures, including high-speed train lines, airports, seaports, inland ports, hinterland terminals and logistics, with a view to developing a more sustainable and multimodal transport system;

16.  Emphasises the economic and territorial importance of ports and believes that the existence of rail and inland waterway connections with their hinterlands is crucial for their ability to compete;

17.  Regrets that there is no corridor covering the whole of the Atlantic area in the Commission proposals on the core network of trans-European transport networks, and that too few Atlantic ports are proposed in this core network; considers it necessary to include other Atlantic ports as hub ports and intends to put forward proposals to this effect;

18.  Recalls the benefits of creating a Single European Sky, with a view to strengthening territorial cohesion via increased traffic between regional airports within the Union, and therefore calls on the Commission to ensure the use of functional airspace blocks within the deadlines set for achieving this objective;

An industrial policy for the Atlantic

19.  Hopes that the strategy will support the competitiveness of the dynamic economic sectors in the Atlantic regions, through an appropriate industrial policy; believes, in this regard, that private-sector investment should be supported by the public authorities in the areas of research and development, innovation, cluster development and SME support;

20.  Calls for particular attention to be paid to regions affected by the restructuring of enterprises and sectors, and by the closure or relocation of enterprises, with the aim of promoting their reindustrialisation by generating synergies between port activity, logistics and the development of ancillary industries offering greater added value; also calls for a mechanism to be created for exchanging successful industrial practices among Atlantic Arc regions;

21.  Considers that the strategy should encourage marine and maritime research and give businesses easier access to the findings of that research, with a view to improving scientific knowledge of the marine environment, encouraging innovation in maritime industries and allowing the sustainable exploitation of marine resources;

22.  Is of the opinion that the strategy should contain an ambitious social dimension in order to promote training and access for young people to maritime professions, by consolidating employment structures currently linked to the sea and their role in enabling the population to remain in coastal areas, and also by creating new specialisations that can contribute to the sustainable development of fishing areas and help improve the quality of life in these areas;

23.  Stresses that renewable marine energies comprise an industrial sector for the future that can combat climate change and EU energy dependence, achieve greater energy sustainability within the Atlantic regions, and meet the Europe 2020 targets; notes that the Atlantic area is particularly suitable for the promotion of such energies, and considers that public support is necessary to accompany private investment in the technologies concerned, especially offshore wind energy and wave and tidal energy;

24.  Underlines the strategic importance of maritime transport along the Atlantic seaboard and the links between the outermost regions and mainland areas; calls on the Commission to propose measures to simplify the administrative formalities in ports, without losing the ability to control and verify the correctness of operations and cargoes;

25.  Emphasises the economic importance of the maritime industries in the Atlantic regions, especially the shipbuilding industry, which is experiencing an extremely difficult situation in some Atlantic of those regions, and for which the Commission needs to facilitate solutions; calls on the Commission to relaunch the LeaderSHIP 2015 initiative in order to strengthen this sector's ability to compete on the global market;

26.  Emphasises the importance of sea-fishing activities and aquaculture in the Atlantic regions, and is in favour of public support for the renewal and modernisation of fishing vessels and of special differentiation as regards the characteristics and potential of artisanal coastal fishing and shellfishing;

27.  Emphasises the importance of promoting socially, economically and environmentally sustainable forms of tourism that can constitute a significant source of added value for the Atlantic regions while protecting their ecosystem and biodiversity; points out that support for nautical tourism is a way to develop sports activities and boost cruise tourism;

28.  Underlines that the Atlantic seabed is home to a wealth of resources, and believes that the strategy should facilitate their sustainable exploration and exploitation;

An action plan for 2014-2020

29.  Calls for an external dimension to the strategy, with a view to advancing certain objectives and attracting international investment so as to capitalise on the opportunities that exist, and suggests that the marketing of the Atlantic area as a place to invest in, visit and do business must be a key element of the Action Plan;

30.  Calls on the Commission to establish the Atlantic macroregion and propose an action plan to implement the strategy in the period 2014-2020;

31.  Calls for a multi-level governance approach to be applied to the elaboration, implementation, evaluation and review of the action plan, in which regional and local public authorities, Atlantic Member States, private sector stakeholders and civil society organisations are closely involved;

32.  Stresses that the action plan should use existing European funding, rather than creating any new budgetary instruments;

33.  Calls for the action plan to be linked to the EU's regional policy, the Integrated Maritime Policy, research and innovation policy (Horizon 2020), and the Connecting Europe Facility; is of the opinion that it is essential to create synergies with other European policies in the areas of research and innovation, transport, the environment, energy, technology, tourism, fisheries and aquaculture, and international cooperation;

34.  Draws attention to the important role which the European Investment Bank, project bonds and public-private partnerships could play in providing funding for the investment required under the strategy;

35.  Insists that the future Atlantic strategy must be based on the thematic pillars of the Europe 2020 Strategy, since this will make it possible to link the thematic contents with sectoral policies in an integrated way; takes the view, in this context, that the objectives and thematic concentration proposed for the five funds included in the common strategic framework for European cohesion policy for the next programming period should form the framework of the action plan; underlines the objectives of ’strengthening research, technological development and innovation’, ’enhancing the competitiveness of SMEs’, ’supporting the shift towards a low-carbon economy’ and ’promoting sustainable transport and removing bottlenecks in key network infrastructures’;

36.  Calls for the partnership contracts and operational programmes to be bindingly geared to the corresponding priorities of the macroregional strategies in which they participate, in order to ensure that measures under the operational programmes and the priorities of macroregional strategies are closely aligned, resulting in the Structural Funds being used much more efficiently and added value being created at regional level; points out that this binding gearing must cover not only operational programmes falling under the cohesion policy's territorial cooperation objective (INTERREG), but also the operational programmes for each region in the Atlantic area;

37.  Supports the recognition and incorporation of preexisting territorial cooperation strategies, projects and experiences, which may offer lines of action and political and operational priorities to the action plan; calls for due account to be taken of the action plan during the design and implementation of future territorial cooperation programmes concerned by the strategy; believes, in addition, that technical support should be provided under the transnational strand of the European territorial cooperation objective for implementation of the action plan, inter alia so as to facilitate the pooling of best practice and networking;

38.  Considers multiregional, multi-fund operational programmes and integrated territorial investment (ITI) to be particularly useful means of facilitating implementation of the action plan;

39.  Proposes that the annual implementation reports for the relevant programmes should include an assessment of how programmes are contributing to the objectives of the Atlantic Strategy and the implementation of the Action Plan;

40.  Points out that the outermost regions could serve as natural laboratories for research and development activities related to renewable energies and the maritime economy; draws attention to the importance of the tourism sector for these regions and to the possibility of setting up logistics platforms to facilitate the transport of goods between Europe and the other global economies;

41.  Invites the national, regional and local authorities to look for synergies between their policies and the priorities of the action plan;

42.  Points out that the involvement in the strategy of European funds under direct and shared management will make it necessary to devise a suitable management and control system, and therefore calls for the establishment of a management platform for the action plan, offering an information and communication module for beneficiaries and facilitating coordination among the various authorities responsible for managing the funds;

43.  Recommends that the Atlantic Strategy must firstly agree on a Strategic Vision for the Atlantic Area, which will provide the reference for the Action Plan 2014-2020; further proposes that this Action Plan should:

   establish key priorities, measures and identify flagship projects;
   set out clearly defined roles and responsibilities for all policy and implementation stakeholders;
   set out key targets and a range of indicators to measure delivery;
   agree a process of evaluation and a mid-term review of achievements; and
   identify the necessary resources to implement the Action Plan.

44.  Points out that an Atlantic Forum has been set up for 2012 and 2013 under a preparatory action proposed by Parliament, in order to involve all stakeholders in the drafting of the action plan; stresses that, as the instigator of the forum, Parliament has a leading role therein;

45.  Proposes that the Action Plan be adopted by the Atlantic Forum, and calls on the forthcoming Irish presidency to prioritise European Council endorsement of the Action Plan during its term of office, with a focus on delivery, a credible process for monitoring and ongoing evaluation, and scheduling a mid-term review;

46.  Calls on the Commission to study the possibility of also drawing up similar macroregional strategies in other regions where such a measure would lead to lasting and sustainable economic growth;

o
o   o

47.  Instructs its President to forward this resolution to the Commission, the Council, the Committee of the Regions and the European Economic and Social Committee.

(1) OJ C 199 E, 7.7.2012, p. 95
(2) Texts adopted, P7_TA(2011)0285.


Exclusion of certain countries from trade preferences ***I
PDF 240kWORD 72k
Resolution
Consolidated text
Annex
European Parliament legislative resolution of 13 September 2012 on the proposal for a regulation of the European Parliament and of the Council amending Annex I to Council Regulation (EC) No 1528/2007 as regards the exclusion of a number of countries from the list of regions or states which have concluded negotiations (COM(2011)0598 – C7-0305/2011 – 2011/0260(COD))
P7_TA(2012)0342A7-0207/2012

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2011)0598),

–  having regard to Article 294(2) and Article 207(2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7-0305/2011),

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to Rule 55 of its Rules of Procedure,

–  having regard to the report of the Committee on International Trade and the opinion of the Committee on Development (A7-0207/2012),

1.  Adopts its position at first reading hereinafter set out;

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

3.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Position of the European parliament adopted at first reading on 13 September 2012 with a view to the adoption of Regulation (EU) No .../2012 of the European Parliament and of the Council amending Annex I to Council Regulation (EC) No 1528/2007 as regards the exclusion of a number of countries from the list of regions or states which have concluded negotiations

P7_TC1-COD(2011)0260


THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 207(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national Parliaments,

Acting in accordance with the ordinary legislative procedure(1),

Whereas:

(1)  Negotiations on the Economic Partnership Agreements (’the Agreements’) between:

   The CARIFORUM states, of the one part, and the European Community and its Member States, of the other part were concluded on 16 December 2007;
   The European Community and its Member States, of the one part, and the Central Africa Party, of the other part were concluded on 17 December 2007 (the Republic of Cameroon);
   Ghana, on the one part, and the European Community and its Member States, on the other part were concluded on 13 December 2007;
   Côte d'Ivoire, of the one part, and the European Community and its Member States, of the other part were concluded on 7 December 2007;
   The Eastern and Southern Africa States, on the one part, and the European Community and its Member States, on the other part were concluded on 28 November 2007 (the Republic of Seychelles and the Republic of Zimbabwe), on 4 December 2007 (the Republic of Mauritius), on 11 December 2007 (Union of the Comoros and the Republic of Madagascar) and 30 September 2008 (the Republic of Zambia);
   The SADC EPA states, on the one part, and the European Community and its Member States, on the other part were concluded on 23 November 2007 (the Republic of Botswana, the Kingdom of Lesotho, the Kingdom of Swaziland, the Republic of Mozambique) and 3 December 2007 (the Republic of Namibia);
   The East African Community Partner States, on the one part, and the European Community and its Member States, on the other part were concluded on 27 November 2007;
   The Pacific States, of the one part, and the European Community, of the other part were concluded on 23 November 2007.

(2)  The conclusion of negotiations on the Agreements by Antigua and Barbuda, the Commonwealth of the Bahamas, Barbados, Belize, the Republic of Botswana, the Republic of Burundi, the Republic of Cameroon, Union of the Comoros, the Republic of Côte d'Ivoire, the Commonwealth of Dominica, the Dominican Republic, the Republic of the Fiji Islands, the Republic of Ghana, Grenada, the Cooperative Republic of Guyana, the Republic of Haiti, Jamaica, the Republic of Kenya, the Kingdom of Lesotho, the Republic of Madagascar, the Republic of Mauritius, the Republic of Mozambique, the Republic of Namibia, the Independent State of Papua New Guinea, the Republic of Rwanda, Federation of Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, the Republic of Seychelles, the Republic of Suriname, the Kingdom of Swaziland, the United Republic of Tanzania, the Republic of Trinidad and Tobago, the Republic of Uganda, the Republic of Zambia(2) and the Republic of Zimbabwe permitted their inclusion in Annex I to Council Regulation (EC) No 1528/2007 of 20 December 2007 applying the arrangements for products originating in certain states which are part of the African, Caribbean and Pacific (ACP) Group of States provided for in agreements establishing, or leading to the establishment of, Economic Partnership Agreements(3).

(3)  The Republic of Botswana, the Republic of Burundi, the Republic of Cameroon, Union of the Comoros, the Republic of Côte d'Ivoire, the Republic of the Fiji Islands, the Republic of Ghana, the Republic of Haiti, the Republic of Kenya, the Kingdom of Lesotho, the Republic of Mozambique, the Republic of Namibia, the Republic of Rwanda, the Kingdom of Swaziland, the United Republic of Tanzania, the Republic of Uganda, the Republic of Zambia, and the Republic of Zimbabwe have not taken the necessary steps towards ratification of their respective Agreements.

(4)  Consequently, in the light of Article 2(3) of Regulation (EC) No 1528/2007, and in particular point (b) thereof, Annex I to that Regulation should be amended to remove those countries.

(5)  In order to ensure that partners can swiftly be reinstated in Annex I to that Regulation as soon as they have taken the necessary steps towards ratification of their respective Agreements, and pending their entry into force, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the European Commission in respect of reinstating the countries removed from Annex I through this Regulation. It is of particular importance that the European Commission carry out appropriate consultations during its preparatory work, including at expert level. The European Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and the Council. The Commission should provide full information and documentation on its meetings with national experts within the framework of its work on the preparation and implementation of delegated acts. The Commission should invite Parliament's experts to attend those meetings,[Am. 1]

HAVE ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 1528/2007 is amended as follows:

(1)  The following Articles are inserted:"

Article 2a

The Commission shall be empowered to adopt delegated acts in accordance with Article 2b to amend Annex I by reinstating those regions or states from the ACP Group of States which were removed from that Annex by virtue of [Regulation (EU) No …/…(4) of the European Parliament and of the Council*], and which have since taken the necessary steps towards ratification of their respective Agreements after removal from Annex I.

Article 2b

Exercise of the delegation

1.  The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2.  The delegation of power referred to in Article 2a shall be conferred on the Commission for an indeterminate period of time from the entry into force of this Regulation.for a period of five years from ...(5). The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five- year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.[Am. 2]

3.  The delegation of power referred to in Article 2a may be revoked at any time by the European Parliament or by the Council. A decision of revocation shall put an end to the delegation of the powers specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of the delegated acts already in force.

4.  As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5.  A delegated act adopted pursuant to Article 2a shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of 2 months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by 2 monthsfour months at the initiative of the European Parliament or the Council. [Am. 3]

* OJ L ...

"

(2)  Annex I is replaced by the the text set out in the Annex to this Regulation.

Article 2

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

It shall apply on 1 January 2014from 1 January 2016. [Am. 4]

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

Done at Brussels,

For the European Parliament

The President

For the Council

The President

ANNEX

’ANNEX I

List of regions or states which have concluded negotiations within the meaning of Article 2(2):

ANTIGUA AND BARBUDA

THE COMMONWEALTH OF THE BAHAMAS

BARBADOS

BELIZE

THE COMMONWEALTH OF DOMINICA

THE DOMINICAN REPUBLIC

GRENADA

THE COOPERATIVE REPUBLIC OF GUYANA

JAMAICA

THE REPUBLIC OF MADAGASCAR

THE REPUBLIC OF MAURITIUS

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

FEDERATION OF SAINT KITTS AND NEVIS

SAINT LUCIA

SAINT VINCENT AND THE GRENADINES

THE REPUBLIC OF SEYCHELLES

THE REPUBLIC OF SURINAME

THE REPUBLIC OF TRINIDAD AND TOBAGO.’

(1) Position of the European Parliament of 13 September 2012.
(2) OJ L 330, 9.12.2008, p.1
(3) OJ L 348, 31.12.2007, p. 1
(4)+ Number of this Regulation.
(5)+ Date of entry into force of this Regulation.


Intergovernmental agreements between Member States and third countries in the field of energy ***I
PDF 197kWORD 36k
Resolution
Text
European Parliament legislative resolution of 13 September 2012 on the proposal for a decision of the European Parliament and of the Council setting up an information exchange mechanism with regard to intergovernmental agreements between Member States and third countries in the field of energy (COM(2011)0540 – C7-0235/2011 – 2011/0238(COD))
P7_TA(2012)0343A7-0264/2012

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2011)0540),

–  having regard to Article 294(2) and Article 194 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7-0235/2011),

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to the reasoned opinion submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Luxembourg Chamber of Deputies, asserting that the draft legislative act does not comply with the principle of subsidiarity,

–  having regard to the opinion of the European Economic and Social Committee of 18 January 2012(1),

–  after consulting the Committee of the Regions,

–  having regard to the undertaking given by the Council representative by letter of 5 June 2012 to approve Parliament's position, in accordance with Article 294(4) of the Treaty on the Functioning of the European Union,

–  having regard to Rule 55 of its Rules of Procedure,

–  having regard to the report of the Committee on Industry, Research and Energy and the opinions of the Committee on Foreign Affairs and the Committee on International Trade (A7-0264/2012),

1.  Adopts its position at first reading hereinafter set out;

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

3.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Position of the European Parliament adopted at first reading on 13 September 2012 with a view to the adoption of Decision No .../2012/EU of the European Parliament and of the Council establishing an information exchange mechanism with regard to intergovernmental agreements between Member States and third countries in the field of energy

P7_TC1-COD(2011)0238


(As an agreement was reached between Parliament and Council, Parliament's position corresponds to the final legislative act, Decision No 994/2012/EU.)

(1) OJ C 68, 6.3.2012, p. 65.


Agricultural product quality schemes ***I
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Resolution
Text
Annex
European Parliament legislative resolution of 13 September 2012 on the proposal for a regulation of the European Parliament and of the Council on agricultural product quality schemes (COM(2010)0733 – C7-0423/2010 – 2010/0353(COD))
P7_TA(2012)0344A7-0266/2011

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2010)0733),

–  having regard to Article 294(2) and Articles 43(2) and 118(1) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7-0423/2010),

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to the opinion of the European Economic and Social Committee of 5 May 2011(1),

–  having regard to the opinion of the Committee of the Regions of 12 May 2011(2),

–  having regard to the undertaking given by the Council representative by letter of 25 June 2012 to approve Parliament's position, in accordance with Article 294(4) of the Treaty on the Functioning of the European Union,

–  having regard to Rule 55 of its Rules of Procedure,

–  having regard to the report of the Committee on Agriculture and Rural Development (A7-0266/2011),

1.  Adopts its position at first reading hereinafter set out;

2.  Takes note of the Council Statement annexed to this resolution;

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

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

Position of the European Parliament adopted at first reading on 13 September 2012 with a view to the adoption of Regulation (EU) No .../2012 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs

P7_TC1-COD(2010)0353


(As an agreement was reached between Parliament and Council, Parliament's position corresponds to the final legislative act, Regulation (EU) No 1151/2012.)

Annex to the legislative resolution

Council Statement

The Council has noted the importance the European Parliament attaches to the extension of the system for management of production of PDO and PGI cheese to other PDO and PGI products.

The Council commits itself to discuss the issue of the management of the supply of PDO and PGI products in the context of its negotiations with the European Parliament on the Commission CAP reform proposal on the Single CMO which includes provision for instruments to regulate supply on agricultural markets.

(1) OJ C 218, 23.7.2011, p. 114.
(2) OJ C 192, 1.7.2011, p. 28.


European Social Entrepreneurship Funds ***I
PDF 438kWORD 163k
Text
Consolidated text
Amendments adopted by the European Parliament on 13 September 2012 on the proposal for a regulation of the European Parliament and of the Council on European Social Entrepreneurship Funds (COM(2011)0862 – C7-0489/2011 – 2011/0418(COD))(1)
P7_TA(2012)0345A7-0194/2012

(Ordinary legislative procedure: first reading)

[Amendment No 2]

AMENDMENTS BY THE EUROPEAN PARLIAMENT(2)
P7_TA(2012)0345A7-0194/2012
to the Commission proposal
P7_TA(2012)0345A7-0194/2012

REGULATION (EU) No …/2012
OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on European Social Entrepreneurship Funds
(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Central Bank(3),

Having regard to the opinion of the European Economic and Social Committee(4),

Acting in accordance with the ordinary legislative procedure(5),

Whereas:

(1)  Increasingly, as investors also pursue social goals and are not only seeking financial returns, a social investment market has been emerging in the Union, comprised in part by investment funds targeting social undertakings. Such investment funds provide funding to social undertakings which are acting as drivers of social change by offering innovative solutions to social problems, for example helping to tackle the social consequences of the financial crisis, and making a valuable contribution to meeting the objectives of the Europe 2020 Strategy.

(1a)  This Regulation is part of the Social Business Initiative set out by the Commission in its Communication of 25 October 2011 entitled ’Social Business Initiative - Creating a favourable climate for social enterprises, key stakeholders in the social economy and innovation’.

(2)  It is necessary to lay down a common framework of rules regarding the use of the designation for European Social Entrepreneurship Funds, ’(EuSEF)’, in particular on the composition of the portfolio of funds that operate under this designation, their eligible investment targets, the investment tools they may employ and the categories of investors that are eligible to invest in such funds by uniform rules in the Union. In the absence of such a common framework, there is a risk that Member States take diverging measures at national level having a direct negative impact on, and creating obstacles to, the good functioning of the internal market, since funds that wish to operate across the Union would be subject to different rules in different Member States. Moreover, diverging quality requirements on portfolio composition, investment targets and eligible investors could lead to different levels of investor protection and generate confusion as to the investment proposition associated with a European Social Entrepreneurship Fund (EuSEF). Investors should, furthermore, be able to compare the investment propositions of different EuSEFs. It is necessary to remove significant obstacles to cross-border fundraising by EuSEFs and to avoid distortions of competition between those funds, and to prevent any further likely obstacles to trade and significant distortions of competition from arising in the future. Consequently, the appropriate legal basis is Article 114 of the Treaty on the Functioning of the European Union, as interpreted in accordance with the consistent case law of the Court of Justice of the European Union.

(3)  It is necessary to adopt a Regulation establishing uniform rules applicable to EuSEFs and imposing corresponding obligations on their managers in all Member States that wish to raise capital across the Union using the designation ’EuSEF’. These requirements should ensure the confidence of investors that wish to invest in such funds.

(3a)  This Regulation does not apply to existing national schemes that allow investment in social businesses and that do not use the designation ’EuSEF’.

(4)  Defining the quality requirements for the use of the designation ’EuSEF’ in the form of a Regulation should ensure that those requirements will be directly applicable to the managers of collective investment undertakings that raise funds using this designation. This would ensure uniform conditions for the use of this designation by preventing diverging national requirements as a result of the transposition of a Directive. This Regulation would entail that managers of collective investment undertakings that use this designation would need to follow the same rules in all of the Union, which would also boost confidence of investors that wish to invest in funds that focus on social undertakings. A Regulation would also reduce regulatory complexity and the manager's cost of compliance with often divergent national rules governing such funds, especially for those managers that want to raise capital on a cross-border basis. A Regulation should also contribute to eliminating competitive distortions.

(4a)  It should be possible for a EuSEF to be either externally or internally managed. Where the EuSEF is internally managed, the EuSEF is also the manager and should therefore comply with all requirements for managers of EuSEFs under this Regulation and be registered as such. A EuSEF which is internally managed should however not be permitted to be the external manager of other collective investment undertakings or UCITS.

(5)  In order to clarify the relationship between this Regulation and other rules on collective investment undertakings and their managers, it is necessary to establish that this Regulation should only apply to managers of collective investment undertakings other than UCITS in accordance with Article 1 of Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations, and administrative provisions, relating to undertakings for collective investment in transferable securities (UCITS)(6) and who are established in the Union and are registered with the competent authority in their home Member State in accordance with Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers(7), provided that those managers manage portfolios of EuSEFs. However, EuSEF managers who are registered under this Regulation and who are external managers should be allowed to additionally manage UCITS subject to authorisation under Directive 2009/65/EC.

(5a)  Furthermore, this Regulation applies only ▌to managers of those collective investment undertakings whose assets under management in total do not exceed the threshold referred to in point (b) of Article 3(2)(b) of Directive 2011/61/EU. This means that the calculation of the threshold for the purposes of this Regulation follows the calculation of the threshold of point (b) of Article 3(2) of Directive 2011/61/EU. However, EuSEF managers who are registered under this Regulation and whose assets in total subsequently grow to exceed the threshold referred to in point (b) of Article 3(2) of Directive 2011/61/EU, and who therefore become subject to authorisation with the competent authorities of their home Member State in accordance with Article 6 of that Directive, may continue to use the designation ’EuSEF’ in relation to the marketing of EuSEFs in the Union, provided that they comply with the requirements laid down in that Directive and that they continue to comply with certain requirements for the use of the designation ’EuSEF’ specified in this Regulation at all times in relation to the EuSEF. This applies to both existing EuSEFs and EuSEFs established after exceeding the threshold.

(6)  Where managers of collective investment undertakings do not wish to use the designation ’EuSEF’ then this Regulation does not apply. In those cases, existing national rules and general Union rules should continue to apply.

(7)  This Regulation should establish uniform rules on the nature of EuSEFs, notably on the portfolio undertakings into which the EuSEFs are to be permitted to invest, and the investment instruments to be used. This is necessary so that a clear demarcation line can be drawn between a EuSEF and other alternative investment funds that engage in other, less specialised, investment strategies, for example buyouts, which this Regulation is not seeking to promote.

(7a)  In line with the aim of precisely circumscribing the collective investment undertakings which will be covered by this Regulation and in order to ensure a focus on providing capital to social undertakings, EuSEFs should be deemed to be those funds that intend to invest at least 70 % of their aggregate capital contributions and uncalled committed capital in such undertakings. The EuSEF should not be permitted to invest more than 30 % of its aggregate capital contributions and uncalled committed capital in assets other than qualifying investments. This means that whereas the 30 % should be the maximum limit for non-qualifying investments at all times, the 70 % should be reserved for qualifying investments during the life time of the EuSEF. The above mentioned limits should be calculated on the basis of amounts investible after deduction of all relevant costs and holdings of cash and cash equivalents. This Regulation should set out the details necessary for the calculation of the referred investment limits.

(7b)  In order to ensure the necessary clarity and certainty this Regulation should also lay down uniform criteria to identify social undertakings as eligible qualifying portfolio undertakings. A social undertaking is an operator in the social economy whose main objective is to have a social impact rather than make a profit for their owners or shareholders. It operates by providing goods and services for the market and uses its profits primarily to achieve social objectives. It is managed in an accountable and transparent way and, in particular, by involving employees, consumers and stakeholders affected by its commercial activities.

(7c)  As social undertakings have the achievement of positive social impact as their principle objective rather than maximising their profits ▌, this Regulation should only promote support to qualifying portfolio undertakings that have the achievement of a measurable and positive social impact as their focus. A measurable and positive social impact could include the provision of services to immigrants who are otherwise excluded, or by reintegrating marginalised groups in the labour market by providing employment, support or training. These undertakings use their profits to achieve their primary social objective and are managed in an accountable and transparent way. For the, in general, exceptional cases, in which a qualifying portfolio undertaking wishes to distribute profits to shareholders and owners, the qualifying portfolio undertaking should have predefined procedures and rules on how profits are distributed to shareholders and owners. Those rules should specify that distribution of profits does not undermine the primary social objective.

(8)  Social undertakings include a large range of undertakings, taking various legal forms, that provide social services or goods to vulnerable, marginalised, disadvantaged or excluded persons. Such services include access to housing, healthcare, assistance for elderly or disabled persons, child care, access to employment and training as well as dependency management. Social undertakings also include undertakings that employ a method of production of goods or services that embodies their social objective, but whose activities may be outside the realm of the provision of social goods or services. Those activities include social and professional integration by means of access to employment for people disadvantaged in particular by insufficient qualifications or social or professional problems leading to exclusion and marginalisation. Those activities may also concern environmental protection with a societal impact, such as anti-pollution, recycling and renewable energy.

(8a)  The purpose of this Regulation is to support growth of social undertakings in the Union. Investments in qualifying portfolio undertakings established in third countries can bring more capital to EuSEFs and thereby benefit social undertakings in the Union. However, under no circumstances should investments be made into third country portfolio undertakings that are located in tax havens or uncooperative jurisdictions.

(8b)  A EuSEF should not be established in tax havens or uncooperative jurisdictions, such as third countries characterised in particular by no or nominal taxes, a lack of appropriate cooperation arrangements between the competent authorities of the home Member State of the EuSEF manager and the supervisory authorities of the third country where the social entrepreneurship fund is established, or a lack of effective exchange of information in tax matters. A EuSEF should also not invest in jurisdictions displaying any of the above criteria.

(8c)  EuSEF managers should be able to attract additional capital commitments during the lifetime of a fund. Such additional capital commitments in the lifetime of the EuSEF should be taken into account when the next investment in assets other than qualifying assets is contemplated. Additional capital commitments should be permitted in accordance with the criteria and subject to conditions set out in the EuSEF's rules or instruments of incorporation.

(9)  Taking into account the specific funding needs of social undertakings, it is necessary to achieve clarity regarding the types of instruments a EuSEF should use for such funding. Therefore, this Regulation lays down uniform rules on the eligible instruments to be used by a EuSEF when making investments, which include equity and quasi equity instruments, debt instruments, such as promissory notes and certificates of deposit, investments into other EuSEFs, secured or unsecured loans, and grants. However, to prevent dilution of the investments into qualifying portfolio undertakings, EuSEFs should only be permitted to invest into other EuSEFs where those other EuSEFs have not themselves invested more than 10 % of their aggregate capital contributions and uncalled committed capital into other EuSEFs.

(9a)  The core activities of EuSEFs are providing finance to social undertakings through primary investments. EuSEFs should not participate in systemically important banking activities outside of the usual prudential regulatory framework (so-called ’shadow banking’). Neither should they follow typical private equity strategies, such as leveraged buyouts.

(10)  To maintain the necessary flexibility in its investment portfolio, EuSEFs may ▌invest in other assets than qualifying investments to the extent that these investments do not exceed the 30 % limit for non-qualifying investments. Holdings of cash and cash equivalents should not be taken into account for the calculation of this limit as cash and cash equivalents are not to be considered as investments. EuSEFs should engage in investments throughout their portfolio that are consistent with their ethical investment strategy, for instance they should not undertake investments such as in the weapons industry, that risk breaches of human rights or that entail electronic waste-dumping.

(11)  In order to ensure that the designation ’EuSEF’ is reliable and easily recognisable for investors across the Union this Regulation should establish that only EuSEF managers which comply with the uniform quality criteria as set out in this Regulation should be eligible to use this designation when marketing EuSEFs across the Union.

(12)  In order to ensure that EuSEFs have a distinct and identifiable profile which is suited to their purpose, there should be uniform rules on the composition of the portfolio and on the investment techniques which are permitted for such funds.

(13)  In order to ensure that EuSEFs do not contribute to the development of systemic risks, and ▌that such funds concentrate, in their investment activities, on supporting qualifying portfolio undertakings, the use of leverage at the level of the fund should not be permitted. The EuSEF manager should only be permitted to borrow, issue debt obligations or provide guarantees, at the level of the EuSEFs, provided that such borrowings, debt obligations or guarantees are covered by uncalled commitments and thus do not increase the exposure of the fund beyond the level of its committed capital. Under this approach cash advances from investors of the EuSEF that are fully covered by capital commitments from those investors do not increase the exposure of the EuSEF and should therefore be allowed. Also, in order to permit the fund to cover extraordinary liquidity needs that might arise between a call of committed capital from investors and the actual reception of the capital in its accounts, short-term borrowing should be allowed provided that it does not exceed uncalled committed capital.

(14)  In order to ensure that EuSEFs are only marketed to investors who have the ▌experience, knowledge and expertise to make their own investment decisions and properly assess the risks these funds carry, and in order to maintain investor confidence and trust in EuSEF, certain specific safeguards should be laid down. Therefore, EuSEFs should ▌only be marketed to investors who are professional clients or who can be treated as professional clients under Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments(8). However, in order to have a sufficiently broad investor base for investments into EuSEFs it is also desirable that certain other investors have access to these funds, including high net worth individuals. For those other investors, specific safeguards should be laid down in order to ensure that EuSEFs are only marketed to investors that have the appropriate profile for making such investments. These safeguards exclude marketing through the use of periodic savings plans. Furthermore, investments made by executives, directors or employees involved in the management of a EuSEF manager should be possible when investing in the EuSEF they manage, as such individuals are knowledgeable enough to participate in such investments.

(15)  To ensure that only EuSEF managers who fulfil uniform quality criteria as regards their behaviour in the market use the designation ’EuSEF’, this Regulation should establish rules on the conduct of business and the relationship of the EuSEF manager to its investors. For the same reason, this Regulation should also lay down uniform conditions concerning the handling of conflicts of interest by such managers. These rules should also require the manager to have the necessary organisational and administrative arrangements in place to ensure a proper handling of conflicts of interest.

(15a)  Where an EuSEF manager intends to delegate functions to third parties, the manager's liability towards the EuSEF and its investors should not be affected by the delegation of functions by the EuSEF manager to a third party. Moreover, the EuSEF manager should not delegate functions to the extent that, in essence, it can no longer be considered to be the EuSEF manager and has become a letter-box entity. The EuSEF manager should remain responsible for the proper performance of delegated functions and compliance with this Regulation at all time. The delegation of functions should not undermine the effectiveness of supervision of the EuSEF manager, and, in particular, should not prevent the EuSEF manager from acting, or the EuSEF from being managed, in the best interests of its investors.

(16)  The creation of positive social impacts in addition to the generation of financial returns for investors is a key characteristic of investment funds targeting social undertakings, one which distinguishes them from other types of investment funds. This Regulation should therefore require that the EuSEF managers put in place procedures for ▌measuring the positive social impacts which are to be achieved by investment into qualifying portfolio undertakings.

(16a)  Currently funds that are targeting social outcomes or impacts typically assess and collate information on the extent to which social undertakings are achieving the outcomes they are targeting. There are a wide range of different kinds of social outcomes or impacts that a social undertaking might target. Different ways of identifying the social impacts and measuring them have thereby developed. For instance, a firm that is seeking to aid disadvantaged persons may report on the numbers of such persons aided, for instance employed who otherwise would not be employed. Or, a firm that is seeking to improve the rehabilitation into society of prisoners on release may assess its performance in terms of recidivism rates. The funds aid the undertakings in preparing and providing information on their goals and achievements, and gathering it for investors. While information about social impacts is very important for investors, it is difficult to compare between different social undertakings and different funds both because of the differences in social outcomes being targeted and because of the variety of current approaches. In order to encourage the greatest consistency and comparability in the longer term in such information and the greatest efficiency in the procedures for obtaining the information, it is desirable to develop delegated acts in this area. Such delegated acts should also ensure greater clarity for supervisors, EuSEFs and social undertakings.

(17)  In order to ensure the integrity of the designation ’EuSEF’, this Regulation should also contain quality criteria as regards the organisation of a EuSEF manager. Therefore, this Regulation should lay down uniform, proportionate requirements for the need to maintain adequate technical and human resources ▌.

(17a)  In order to ensure the proper management of the EuSEF and the ability of the manager to cover potential risks arising from its activities this Regulation should lay down uniform, proportionate requirements for EuSEF manager to maintain sufficient own funds. The amount of such own funds should be sufficient to ensure the continuity and proper management of the EuSEF.

(18)  It is necessary for the purpose of investor protection to ensure that EuSEFs assets are properly evaluated. Therefore the rules or instruments of incorporation of the EuSEF should contain rules on the valuation of assets. This should ensure the integrity and the transparency of the valuation.

(19)  In order to ensure that EuSEF managers which make use of the designation ’EuSEF’ give sufficient account of their activities, uniform rules on annual reports should be established.

(20)  To ensure the integrity of the designation ’EuSEF’ in the eyes of investors, it is necessary that the designation only be used by fund managers who are fully transparent as to their investment policy and their investment targets. This Regulation should therefore set out uniform rules on disclosure requirements that are incumbent on a EuSEF manager in relation to his investors. These requirements include those elements that are specific to investments into social undertakings, so that greater consistency and comparability of such information may be achieved. This includes information about the criteria and the procedures which are used to select particular qualifying portfolio undertakings as investment targets. This also includes information about the positive social impact to be achieved by the investment policy and how this should be monitored and assessed. To ensure the necessary confidence and the trust of investors in such investments, this further includes information about the assets of the EuSEF which are not invested into qualifying portfolio undertakings and how these are selected.

(21)  In order to ensure effective supervision of the uniform requirements contained in this Regulation, the competent authority of the home Member State should supervise compliance of the EuSEF manager with the uniform requirements set out in this Regulation. To this effect, the EuSEF manager who wishes to market his funds under the designation ’EuSEF’ should inform the competent authority of his home Member State of this intention. The competent authority should register the fund manager if all necessary information has been provided and if ▌ suitable arrangements to comply with the requirements of this Regulation are in place. That registration should be valid across the entire Union.

(21a)  In order to facilitate the efficient cross-border marketing of EuSEF, registration of the manager should be as quick as possible.

(21b)  While safeguards are included in this Regulation to ascertain that funds are properly used, supervisory authorities should be vigilant in ensuring that those safeguards are complied with.

(22)  In order to ensure effective supervision of compliance with the uniform criteria set out, this Regulation should contain rules on the circumstances under which information supplied to the competent authority in the home Member State needs to be updated.

(23)  For the effective supervision of the requirements laid down, this Regulation should also establish a process for cross-border notifications between the competent supervisory authorities, to be triggered by the registration of the EuSEF manager in its home Member State.

(24)  In order to maintain transparent conditions for the marketing of EuSEF managers across the Union, the European Supervisory Authority (European Securities and Markets Authority) (’ESMA’) established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council(9) should be entrusted with maintaining a central database listing all EuSEF managers and the EuSEFs they manage that are registered in accordance with this Regulation.

(24a)  Where the competent authority of the host Member State has clear and demonstrable grounds for believing that the EuSEF manager acts in breach of this Regulation within its territory, it should promptly inform the competent authority of the home Member State, which should take appropriate measures.

(24b)  If, despite the measures taken by the competent authority of the home Member State or because the competent authority of the home Member State fails to act within a reasonable timeframe, or the EuSEF manager persists in acting in a manner that is clearly in conflict with this Regulation, the competent authority of the host Member State may, after informing the competent authority of the home Member State, take all the appropriate measures needed in order to protect investors, including the possibility of preventing the manager concerned from carrying out any further marketing of its EuSEFs within the territory of the host Member State.

(25)  In order to ensure the effective supervision of the uniform criteria established, this Regulation should contain a list of supervisory powers that competent authorities shall have at their disposal.

(26)  In order to ensure proper enforcement, this Regulation should contain administrative sanctions and measures for the breach of its key provisions, namely the rules on portfolio composition, on safeguards relating to the identity of eligible investors, and on the use of the designation ’EuSEF’ only by registered EuSEF managers. It should be established that a breach of these key provisions entails the prohibition of the use of the designation and the removal of the fund manager from the register.

(27)  Supervisory information should be exchanged between the competent authorities in the home and host Member States and ESMA.

(28)  Effective regulatory cooperation among the entities tasked with supervising compliance with the uniform criteria set out in this Regulation requires that a high level of professional secrecy should apply to all relevant national authorities and to ESMA.

(28a)  The contribution of EuSEFs to the growth of a European market for social investments will depend on take up of the designation by fund managers, the recognition of the designation by investors and the development of a strong eco-system for social enterprises across the Union that aids those enterprises in availing themselves of the financing options provided. To this end, all stakeholders, including market operators, competent authorities in Member States, the Commission and other relevant entities within the Union, should endeavour to ensure a high level of awareness of the possibilities presented by this Regulation.

(29)  Technical standards in financial services should ensure consistent harmonisation and a high level of supervision across the Union. As a body with highly specialised expertise, it would be efficient and appropriate to entrust ESMA with the elaboration of draft implementing technical standards where these do not involve policy choices, for submission to the Commission.

(30)  The Commission should be empowered to adopt implementing technical standards by means of implementing acts pursuant to Article 291 of the Treaty on the Functioning of the European Union and in accordance with Article 15 of Regulation (EU) No 1095/2010. ESMA should be entrusted with drafting implementing technical standards for the format ▌of the notification referred to in this Regulation.

(31)  In order to specify the requirements set out in this Regulation, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of specifying the types of goods and services or methods of production for goods and services embodying a social objective and the circumstances in which profits may be distributed to owners and investors, the types of conflicts of interest EuSEF managers need to avoid and the steps to be taken in that respect, the details of the procedures to measure the social impacts to be achieved by the qualifying portfolio undertakings, and the content and procedure for provision of information for investors. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, taking into account self-regulatory initiatives and codes of conduct. The consultations carried out by the Commission during its preparatory work regarding delegated acts on the details of the procedures to measure the social impacts to be achieved by the qualifying portfolio undertakings should involve relevant stakeholders and ESMA. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and Council.

(33)  At the latest four years after the date on which this Regulation becomes applicable a review of this Regulation should be carried out in order to take account of the development of the market of EuSEFs. The review should include a general survey of the functioning of the rules in this Regulation and the experience acquired in applying them. On the basis of the review, the Commission should submit a report to the European Parliament and the Council accompanied, if appropriate, by legislative proposals.

(33a)  Furthermore, by 22 July 2017, the Commission should start a review of the interaction between this Regulation and other rules on collective investment undertakings and their managers, especially those of Directive 2011/61/EU. In particular, this review should address the scope of this Regulation assessing whether it is necessary to extend the scope to allow for larger alternative investment funds managers to use the designation EuSEF. On the basis of the review, the Commission should submit a report to the European Parliament and the Council accompanied, if appropriate, by legislative proposals.

(33b)  In the context of this review, the Commission should evaluate any barriers that may have impeded the uptake of the funds by investors, including the impact on institutional investors of other regulation as may apply to them of a prudential nature. In addition, the Commission should gather data for assessing the contribution of EuSEFs to other Union programs such as Horizon 2020 that seek also to support innovation in the Union.

(33c)  In relation to the Commission examination of tax obstacles to cross-border venture capital investments as foreseen in the Commission Communication of 7 December 2011 entitled ’An action plan to improve access to finance for SMEs’ and in the context of the review of this Regulation, the Commission should consider undertaking an equivalent examination of possible tax obstacles for social entrepreneurship funds and assess possible tax incentives aimed at encouraging social entrepreneurship in the Union.

(33d)  ESMA should assess its staffing and resources needs arising from the assumption of its powers and duties in accordance with this Regulation and submit a report to the European Parliament, the Council and the Commission.

(34)  This Regulation respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, including the right to respect for private and family life and the freedom to conduct a business.

(35)  Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(10) governs the processing of personal data carried out in the Member States in the context of this Regulation and under the supervision of the Member States competent authorities, in particular the public independent authorities designated by the Member States. Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data(11) by the Union institutions and bodies and on the free movement of such data, governs the processing of personal data carried out by ESMA within the framework of this Regulation and under the supervision of the European Data Protection Supervisor.

(36)  Since the objective of this Regulation, namely to develop an internal market for EuSEFs by laying down a framework for the registration of EuSEF managers facilitating the marketing of EuSEFs throughout the Union, cannot be sufficiently achieved by the Member States and can therefore, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on the European Union. 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,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

SUBJECT MATTER, SCOPE AND DEFINITIONS

Article 1

This Regulation lays down uniform requirements and conditions for those managers of collective investment undertakings who wish to use the designation ’EuSEF’ in relation to the marketing of EuSEF in the Union, and thereby contributing to the smooth functioning of the internal market.

This Regulation also lays down uniform rules for the marketing of EuSEF ▌to eligible investors across the Union, for the portfolio composition of EuSEFs, for the eligible investment instruments and techniques, as well as on the organisation, transparency and conduct of EuSEF managers that market EuSEFs across the Union.

Article 2

1.  This Regulation applies to managers of collective investment undertakings as defined in point (b) of Article 3(1), whose assets under management in total do not exceed the threshold referred to in Article 3(2)(b) of Directive 2011/61/EU, who are established in the Union and who are subject to registration with the competent authorities of their home Member State in accordance with point (a) of Article 3(3) of Directive 2011/61/EU, provided that those managers manage portfolios of EuSEFs ▌.

1a.  EuSEF managers registered under this Regulation in accordance with Article 14, and whose assets in total subsequently grow to exceed the threshold referred to in Article 3(2)(b) of Directive 2011/61/EU, and who therefore become subject to authorisation with the competent authorities of their home Member State in accordance with Article 6 of that Directive, may continue to use the designation ’EuSEF’ in relation to the marketing of EuSEFs in the Union, provided that they comply with the requirements laid down in Directive 2011/61/EU and that they continue to comply with Articles 3, 5, 9, 12(2), 13(1) (c), (d) and (e) of this Regulation at all times in relation to the EuSEFs.

3a.  EuSEF managers that are registered in accordance with this Regulation may additionally manage UCITS subject to authorisation under Directive 2009/65/EC provided that they are external managers.

Article 3

1.  For the purposes of this Regulation, the following definitions shall apply:

   (a) ’European Social Entrepreneurship Fund’ (EuSEF) means a collective investment undertaking that:
     (i) intends to invest at least 70 % of its aggregate capital contributions and uncalled committed capital in assets that are qualifying investments within a time frame laid down in the rules or instruments of incorporation of the EuSEF;
     (ii) never uses more than 30 % of the fund's aggregate capital contributions and uncalled committed capital for the acquisition of assets other than qualifying investments;
    (iii) is established within the territory of a Member State, or in a third country provided that the third country:
     - does not provide for tax measures which entail no or nominal taxes or where advantages are granted even without any real economic activity and substantial economic presence within the third country offering such tax advantages;
     - has appropriate cooperation arrangements with the competent authorities of the home Member State of the EuSEF manager which entails that an efficient exchange of information can be ensured within the meaning of Article 21 of this Regulation that allows the competent authorities to carry out their duties in accordance with this Regulation;
     - is not listed as a Non-Cooperative Country and Territory by FATF;
     - has signed an agreement with the home Member State of the EuSEF manager and with each other Member State in which the units or shares of the EuSEF are intended to be marketed, so that it is ensured that the third country fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements.

The limits referred to in points (i) and (ii) shall be calculated on the basis of amounts investible after the deduction of all relevant costs and holdings in cash and cash equivalents;

   (aa) ’relevant costs’ means all fees, charges and expenses which are directly or indirectly borne by investors and which are agreed between the manager of, and the investors in, the EuSEFs;
   (b) ’collective investment undertaking’ means an AIF as defined in point (a) of Article 4(1) of Directive 2011/61/EU;
  (c) ’qualifying investments’ means any of the following instruments:
   (i) ▌equity or quasi equity instruments that are:
     - issued by a qualifying portfolio undertaking and acquired directly by the EuSEF from the qualifying portfolio undertaking,
     - issued by a qualifying portfolio undertaking in exchange for an equity security issued by the qualifying portfolio undertaking or
     - issued by an undertaking of which the qualifying portfolio undertaking is a majority-owned subsidiary and which is acquired by the EuSEF in exchange for an equity instrument issued by the qualifying portfolio undertaking;
     (ii) securitised and un-securitised debt instruments, issued by a qualifying portfolio undertaking;
     (iii) units or shares of one or several other EuSEFs, provided that those EuSEFs have not themselves invested more than 10 % of their aggregate capital contributions and uncalled committed capital in EuSEFs;
     (iv) secured or unsecured loans granted by the EuSEF to a qualifying portfolio undertaking;
     (v) any other type of participation in a qualifying portfolio undertaking.
  (d) ’qualifying portfolio undertaking’ means an undertaking that, at the time of an investment by the EuSEF, is not admitted to trading on a regulated market or on a multilateral trading facility (MTF) as defined in point (14) and point (15) of Article 4(1) of Directive 2004/39/EC and which:
    (-i) is established within the territories of a Member State, or in a third country provided that the third country:
     - does not provide for tax measures which entail no or nominal taxes or where advantages are granted even without any real economic activity and substantial economic presence within the third country offering such tax advantages;
     - is not listed as a Non-Cooperative Country and Territory by FATF;
     - has signed an agreement with the home Member State of the EuSEF manager and with each other Member State in which the units or shares of the EuSEF are intended to be marketed, so that it is ensured that the third country fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements;
    (i) has the achievement of measurable, positive social impacts as its primary objective in accordance with its articles of association, statutes or any other rules or instruments of incorporation establishing the business, where the undertaking:
   - ▌provides services or goods to vulnerable or marginalised, disadvantaged or excluded persons; ▌
   - ▌employs a method of production of goods or services that embodies its social objective; or
     - provides financial support exclusively to social undertakings as defined in the first two indents;
     (ii) uses its profits first and foremost to achieve its primary social objective in accordance with its articles of association, statutes or any other rules or instruments of incorporation establishing the business. Those rules or instruments of incorporation shall have in place predefined procedures and rules for any circumstances in which profits are distributed to shareholders and owners to ensure that any such distribution of profits does not undermine its primary objective; and
     (iii) is managed in an accountable and transparent way, in particular by involving workers, customers and stakeholders affected by its business activities.
   (e) ’equity’ means ownership interest in an undertaking, represented by the shares or other forms of participation in the capital of the qualifying portfolio undertaking issued to its investors;
     (ea) ’quasi-equity’ means any type of financing instrument which is a combination of equity and debt, where the return on the instrument is linked to the profit or loss of the qualifying portfolio undertaking and where the repayment of the instrument in the event of default is not fully secured;
   (f) ’marketing’ means a direct or indirect offering or placement at the initiative of the EuSEF manager or on behalf of that manager of units or shares of a EuSEF it manages to or with investors domiciled or with a registered office in the Union;
   (g) ’committed capital’ means any commitment pursuant to which an investor is obliged, within the time frame laid down in the rules or instruments of incorporation of the EuSEF, to acquire an interest in the EuSEF or make capital contributions to the EuSEF;
   (h) ’EuSEF manager’ means a legal person whose regular business is managing at least one EuSEF;
   (i) ’home Member State’ means the Member State where the EuSEF manager is established and is subject to registration with the competent authorities in accordance with point (a) of Article 3(3) of Directive 2011/61/EU;
   (j) ’host Member State’ means the Member State, other than the home Member State, where the EuSEF manager markets EuSEFs in accordance with this Regulation;
   (k) ’competent authority’ means the national authority which the home Member State designates, by law or regulation, to undertake the registration of managers of collective investment undertakings as referred to in Article 2(1);
   (ka) ’UCITS’ means an undertaking for collective investment in transferable securities authorised in accordance with Article 5 of Directive 2009/65/EC.

In regard to point (h) of the first subparagraph, where the legal form of a EuSEF permits internal management and where the governing body of the fund chooses not to appoint an external manager, the EuSEF itself shall be registered as the EuSEF manager. A EuSEF who is registered as internal EuSEF manager can not be registered as external EuSEF manager of other collective investment undertakings.

2.  The Commission shall be empowered to adopt delegated acts in accordance with Article 24 specifying the types of services or goods and the methods of production of services or goods that embody a social objective referred to in point (i) of paragraph 1(d) of this Article taking into account the different kinds of qualifying portfolio undertakings and those circumstances in which profits can be distributed to owners and investors.

CHAPTER II

CONDITIONS FOR THE USE OF THE DESIGNATION ’EuSEF’

Article 4

EuSEF managers who comply with the requirements set out in this Chapter shall be entitled to use the designation ’EuSEF’ in relation to the marketing of EuSEFs across the Union.

Article 5

1.  EuSEF managers shall ensure that, when acquiring assets other than qualifying investments no more than 30 % of the EuSEF's aggregate capital contributions and uncalled committed capital is used for the acquisition of assets other than qualifying investments; the 30 % shall be calculated on the basis of amounts investible after the deduction of all relevant costs; holdings in cash and cash equivalents shall not be taken into account for calculating this limit as cash and cash equivalents are not to be considered as investments.

2.  The EuSEF manager may not employ at the level of the EuSEF ▌any method ▌by which the exposure of the fund will be increased beyond the level of its committed capital, whether through borrowing of cash or securities, the engagement into derivative positions or by any other means.

2a.  The EuSEF manager may only borrow, issue debt obligations or provide guarantees, at the level of the EuSEF, where such borrowings, debt obligations or guarantees are covered by uncalled commitments.

Article 6

1.  EuSEF managers shall market the units and shares of the EuSEFs under management exclusively to investors which are considered to be professional clients in accordance of Section I of Annex II of Directive 2004/39/EC, or may, on request, be treated as professional clients in accordance with Section II of Annex II of Directive 2004/39/EC, or to other investors where:

   (a) those other investors commit to invest a minimum of EUR 100 000; and
   (b) those other investors state in writing, in a separate document from the contract that is concluded for the commitment to invest, that they are aware of the risks associated with the envisaged commitment.

1a.  Paragraph 1 shall not apply to investments made by executives, directors or employees involved in the management of a EuSEF manager when investing in the EuSEFs that they manage.

Article 7

EuSEF managers shall, in relation to the EuSEF they manage:

   (a) act honestly, with due skill, care and diligence and fairly in conducting their activities;
   (b) apply appropriate policies and procedures for preventing malpractices that might be reasonably expected to affect the interests of investors and the qualifying portfolio undertakings;
   (c) conduct their business activities so as to promote the positive social impact of the qualifying portfolio undertakings in which they have invested, the best interests of the EuSEFs they manage, the investors in those EuSEFs and the integrity of the market;
   (d) apply a high level of diligence in the selection and ongoing monitoring of investments in qualifying portfolio undertakings and the positive social impact of those undertakings;
   (e) possess adequate knowledge and understanding of the qualifying portfolio undertakings they invest in;
   (ea) treat their investors fairly;
   (eb) ensure that no investor obtains preferential treatment, unless such preferential treatment is disclosed in the rules or instruments of incorporation of the EuSEF.

Article 7a

1.  Where a EuSEF manager intends to delegate functions to third parties, the manager's liability towards the EuSEF and its investors shall not be affected by the fact that the manager has delegated functions to a third party, nor shall the manager delegate to the extent that, in essence, it can no longer be considered to be the manager of the EuSEF and to the extent that it becomes a letter-box entity.

2.  The delegation must not undermine the effectiveness of supervision of the EuSEF manager, and, in particular, must not prevent the EuSEF manager from acting, or the EuSEF from being managed, in the best interests of its investors.

Article 8

1.  EuSEF managers shall identify and avoid conflicts of interest and, where they cannot be avoided, manage and monitor and, in accordance with paragraph 4, disclose promptly, those conflicts of interest in order to prevent them from adversely affecting the interests of the EuSEFs and their investors and to ensure that the EuSEFs they manage are fairly treated.

2.  EuSEF managers shall identify in particular those conflicts of interest that may arise between

   (a) EuSEF managers, those persons who effectively conduct the business of the EuSEF manager, employees or any person who directly or indirectly controls or is controlled by the EuSEF manager, and the EuSEF managed by the EuSEF manager or the investors in those EuSEFs;
   (b) a EuSEF or the investors in that EuSEF, and another EuSEF managed by that EuSEF manager, or the investors in that other EuSEF;
     (ba) the EuSEF or the investors in that EuSEF, and a collective investment undertaking or UCITS managed by the same EuSEF manager or the investors in that collective investment undertaking or UCITS.

3.  EuSEF managers shall maintain and operate effective organisational and administrative arrangements in order to comply with the requirements laid down in paragraph 1 and 2.

4.  Disclosures of conflicts of interest as referred to in paragraph 1 shall be provided, where organisational arrangements made by the EuSEF manager to identify, prevent, manage and monitor conflicts of interest are not sufficient to ensure, with reasonable confidence, that risks of damage to investors’ interests will be prevented. EuSEF managers shall clearly disclose the general nature or sources of conflicts of interest to the investors before undertaking business on their behalf.

5.  The Commission shall be empowered to adopt delegated acts in accordance with Article 24 specifying:

   (a) the types of conflicts of interest as referred to in paragraph 2 of this Article;
   (b) the steps EuSEF managers shall take, in terms of structures and organisational and administrative procedures, in order to identify, prevent, manage, monitor and disclose conflicts of interest.

Article 9

1.  EuSEF managers shall employ for each EuSEF they manage procedures to measure ▌the extent to which the qualifying portfolio undertakings, in which the EuSEF invests, achieve the positive social impact that they are committed to. The managers shall ensure that these procedures are clear and transparent and include indicators that may, depending on the social objective and nature of the qualifying portfolio undertaking, include one or more of the following subjects:

   (a) employment and labour markets;
   (b) standards and rights related to job quality;
   (c) social inclusion and protection of particular groups; equality of treatment and opportunities, non -discrimination;
   (d) public health and safety;
   (e) access to and effects on social protection, health and educational systems.

2.  The Commission shall be empowered to adopt delegated acts in accordance with Article 24 specifying the details of the procedures referred to in paragraph 1 of this Article, in relation to different qualifying portfolio undertakings.

Article 10

At all times, EuSEF managers shall have sufficient own funds and use adequate and appropriate human and technical resources as are necessary for the proper management of EuSEFs.

It shall be incumbent upon the EuSEF managers, at all times, to ensure that they are able to justify the sufficiency of their own funds to maintain operational continuity and disclose their reasoning as to why these funds are sufficient as specified in Article 13.

Article 11

1.  Rules for the valuation of assets shall be laid down in the rules or instruments of incorporation of the EuSEF and shall ensure a sound and transparent valuation process.

1a.  Valuation procedures used shall ensure that the assets are valued properly and that the asset value is calculated at least once a year.

1b.  In order to ensure consistency in the valuation of qualifying portfolio undertakings, ESMA shall develop guidelines setting out common principles on the treatment of investments in such undertakings taking into account their primary objective of achieving measurable positive social impacts and their use of their profits first and foremost for the achievement of this impact.

Article 12

1.  EuSEF managers shall make available an annual report to the competent authority of the home Member State for each EuSEF under management no later than 6 months following the end of the financial year. The report shall describe the composition of the portfolio of the EuSEF and the activities of the past year. It shall also include a disclosure of the profits of the EuSEF by the end of its life time and, where applicable, a disclosure of the profits distributed during its lifetime. It shall contain the audited financial accounts for the EuSEF. The audit shall confirm that money and assets are held in the name of the fund and that the EuSEF manager has established and maintained adequate records and controls in respect of the use of any mandate or control over the money and assets of the EuSEF and its investors, and shall be conducted at least once a year. The annual report shall be produced in accordance with existing reporting standards and the terms agreed between the EuSEF manager and the investors. EuSEF managers shall provide the report to investors on request. EuSEF managers and investors may agree additional disclosures amongst themselves.

2.  The annual report shall at least include the following elements:

   (a) details, as appropriate, of the overall social outcomes achieved by the investment policy and the method used to measure these outcomes;
   (b) a statement of any divestments in relation to qualifying portfolio undertakings that have occurred;
   (c) a description of whether divestments in relation to the other assets of the EuSEF which are not invested into qualifying portfolio undertakings occurred on the basis of the criteria as referred to in point (e) of Article 13(1);
   (d) a summary of the activities the EuSEF manager has undertaken in relation to the qualifying portfolio undertakings as referred to in point (k) of Article 13(1);
     (da) information on the nature and purpose of the investments other than qualifying portfolio investments referred to in Article 4(1).

3.  Where the EuSEF manager is required to make public an annual financial report in accordance with Article 4 of Directive 2004/109/EC of the European Parliament and Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market(12) in relation to the EuSEF the information referred to in paragraph 1 and 2 of this Article may be provided either separately or as an additional part of the annual financial report.

Article 13

1.  EuSEF managers shall, in relation to the EuSEFs they manage, inform their investors, in a clear and understandable manner, about the following elements prior to their investment decision:

   (a) the identity of the EuSEF manager and of any other service providers contracted by the EuSEF manager in relation to their management, and a description of their duties;
     (aa) the amount of own funds available to the EuSEF manager, as well as a detailed statement as to why the EuSEF manager deems these own funds sufficient for maintaining the adequate human and technical resources necessary for the proper management of its EuSEFs;
  (b) a description of the investment strategy and objectives of the EuSEF, including:
     (i) the types of qualifying portfolio undertakings in which it intends to invest;
     (ii) any other EuSEFs in which it intends to invest;
     (iii) the types of qualifying portfolio undertakings in which any other EuSEF, as referred to in point (ii), intend to invest;
     (iv) the non-qualifying investments which it intends to make;
     (v) the ▌techniques it intends to employ; and
     (vi) any applicable investment restrictions;
   (c) the positive social impact being targeted by the investment policy of the EuSEF, including where relevant, projections of such outcomes as may be reasonable, and information on past performance in this area;
   (d) the methodologies to be used to measure social impacts;
   (e) a description of the assets other than qualifying portfolio undertakings and the process and the criteria which are used for selecting these assets unless they are cash or cash equivalents;
   (f) a description of the risk profile of the EuSEF and any risks associated with the assets in which the fund may invest or the investment techniques that may be employed;
   (g) a description of the EuSEF's valuation procedure and of the pricing methodology for valuing assets, including the methods used for valuing qualifying portfolio undertakings;
   (h) a description of all relevant costs and of the maximum amounts thereof ▌;
   (i) a description of how the remuneration of the EuSEF manager is calculated;
   (j) where available, the historical financial performance of the EuSEF;
   (k) the business support services and the other support activities the EuSEF manager is providing or arranging through third parties in order to facilitate the development, growth or in some other respect the on-going operations of the qualifying portfolio undertakings in which the EuSEF invests, or, where these services or activities are not provided, an explanation of that fact;
   (l) a description of the procedures by which the EuSEF may change its investment strategy or investment policy, or both.

2.  All of the information referred to in paragraph 1 shall be fair, clear and not misleading. It shall be kept up-to-date and reviewed regularly where relevant.

3.  Where the EuSEF manager is required to publish a prospectus in accordance with Directive 2003/71/EC of the European Parliament and the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading(13) or in accordance with national law in relation to the EuSEF, the information referred to in paragraph 1 of this Article may be provided either separately or as a part of the prospectus.

4.  The Commission shall be empowered to adopt delegated acts in accordance with Article 24 specifying:

   (a) the content of the information referred to in point (b) to (e) and (k) of paragraph 1 of this Article;
   (b) how the information as referred to in point (b) to (e) and (k) of paragraph 1 of this Article can be presented in a uniform way in order to ensure the highest possible level of comparability.

CHAPTER III

SUPERVISION AND ADMINISTRATIVE COOPERATION

Article 14

1.  EuSEF managers who intend to use of the designation ’EuSEF’ for the marketing of their EuSEF shall inform the competent authority of their home Member State of this intention and shall provide the following information:

   (a) the identity of the persons who effectively conduct the business of managing EuSEFs;
   (b) the identity of the EuSEFs whose units or shares shall be marketed and their investment strategies;
   (c) information on the arrangements made for complying with the requirements of Chapter II;
   (d) a list of Member States where the EuSEF manager intends to market each EuSEF;
     (da) a list of Member States and third countries where the EuSEF manager has established, or intends to establish, EuSEFs.

2.  The competent authority of the home Member State shall ▌register the EuSEF manager only if it is satisfied that the following conditions are met:

   (-a) the persons who effectively conduct the business of managing the EuSEF are of sufficiently good repute and are sufficiently experienced also in relation to the investment strategies pursued by the EuSEF manager;
   (a) the information required referred to in paragraph 1 is complete;
   (b) the arrangements notified according to in point (c) of paragraph 1 are suitable in order to comply with the requirements of Chapter II;
     (ba) the list notified according to point (da) of paragraph 1 reveals that all of the EuSEFs are established in accordance with Article 3(1)(a)(iii) of this Regulation.

3.  The registration shall be valid for the entire territory of the Union and shall allow EuSEF managers to market EuSEFs under the designation ’EuSEF’ throughout the Union.

Article 15

The EuSEF manager shall update the information provided to the competent authority of the home Member State where the EuSEF manager intends:

   (a) to market a new EuSEF;
   (b) to market an existing EuSEF in a Member State not mentioned in the list referred to in point (d) of Article 14(1).

Article 16

1.  Immediately after the registration of a EuSEF manager, the addition of a new EuSEF, the addition of a new domicile for the establishment of a EuSEF or the addition of a new Member State where the EuSEF manager intends to market EuSEFs, the competent authority of the home Member State shall notify this to the Member States indicated in accordance with point (d) of Article 14(1) ▌and to ESMA.

2.  The host Member States indicated in accordance with point (d) of Article 14(1) of this Regulation shall not impose, on the EuSEF manager registered in accordance with Article 14, any requirements or administrative procedures in relation to the marketing of its EuSEFs, nor shall they require any approval of the marketing prior to its commencement.

3.  In order to ensure uniform application of this article, ESMA shall develop draft implementing technical standards to determine the format of the notification.

4.  ESMA shall submit those draft implementing technical standards to the Commission by ...(14).

5.  Power is conferred on the Commission to adopt the implementing technical standards referred to in paragraph 3 in accordance with the procedure laid down in Article 15 of Regulation (EU) No 1095/2010.

Article 17

ESMA shall maintain a central database, publicly accessible on the internet, listing all EuSEF managers registered in the Union in accordance with this Regulation and EuSEFs that they market as well as the countries in which they are marketed.

Article 18

1.  The competent authority of the home Member State shall supervise compliance with the requirements set out in this Regulation.

1a.  Where the competent authority of the host Member State has clear and demonstrable grounds for believing that the EuSEF manager is in breach of this Regulation within its territory, it shall promptly inform the competent authority of the home Member State accordingly, which shall take appropriate measures.

1b.  If, despite the measures taken by the competent authority of the home Member State or because the competent authority of the home Member State fails to act within a reasonable timeframe, or the EuSEF manager persists in acting in a manner that is clearly in conflict with this Regulation, the competent authority of the host Member State may, as a consequence and after informing the competent authority of the home Member State, take all the appropriate measures needed in order to protect investors, including the possibility of preventing the manager concerned from carrying out any further marketing of its EuSEFs within the territory of the host Member State.

Article 19

Competent authorities shall, in conformity with national law, have all supervisory and investigatory powers that are necessary for the exercise of their functions. They shall have in particular the power to:

   (a) request access to any document in any form, and to receive or take a copy of it thereof;
   (b) require the EuSEF manager to provide information without delay;
   (c) require information from any person related to the activities of the EuSEF manager or the EuSEF;
   (d) carry out on site inspections with or without prior announcements;
   (e) take appropriate measures to ensure that a EuSEF manager continues to comply with the requirements of this Regulation;
   (f) issue an order to ensure that a EuSEF manager complies with the requirements of this Regulation and desists from a repetition of any conduct that may consist of a breach of this Regulation.

Article 20

1.  Member States shall lay down the rules on administrative sanctions and measures ▌applicable to breaches of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The administrative sanctions and measures ▌provided for shall be effective, proportionate and dissuasive.

2.  By ...(15) the Member States shall notify the rules referred to in paragraph 1 to the Commission and ESMA. They shall notify the Commission and ESMA without delay of any subsequent amendment thereto.

Article 21

1.  The competent authority of the home Member State shall, while respecting the principle of proportionality, take the appropriate measures referred to in paragraph 2 where a EuSEF manager:

   (a) fails to comply with the requirements that apply to the portfolio composition in breach of Article 5;
   (b) markets, in breach of Article 6, the units and shares of a EuSEF to non-eligible investors ▌;
   (c) uses the designation ’EuSEF’ without being registered with the competent authority of their home Member State in accordance with Article 14;
     (ca) uses the designation ’EuSEF’ for the marketing of funds which are not established in accordance with Article 3(1)(a)(iii) of this Regulation;
   (cb) obtained a registration through false statements or any other irregular means in breach of Article 14;
   (cc) fails to act honestly with due skill, care and diligence and fairly in conducting their business in breach of Article 7(a);
   (cd) fails to apply appropriate policies and procedures for preventing malpractices in breach of Article 7(b);
   (ce) repeatedly fails to comply with the requirements under Article 12 regarding the annual report;
   (cf) repeatedly fails to comply with the obligation to inform investors in accordance with Article 13.

2.  In the cases referred to in paragraph 1 the competent authority of the home Member State shall take the following measures, as appropriate:

   (-a) take measures to ensure that a EuSEF manager complies with Articles 3(1)(a)(iii), 5, 6, 7(a), 7(b), 12, 13 and 14 of this Regulation;
   (a) prohibit the use of the designation ’EuSEFand remove the EuSEF manager from the register.

3.  The competent authority of the home Member State shall inform the competent authorities of the host Member States indicated in accordance with point (d) of Article 14(1) and ESMA without delay of the removal of the EuSEF manager from the register referred to in point (a) of paragraph 2 of this Article.

4.  The right to market one or more EuSEFs under the designation ’EuSEF’ in the Union expires with immediate effect from the date of the decision of the competent authority referred to in point (a) of paragraph 2.

Article 22

1.  Competent authorities and ESMA shall cooperate with each other for the purpose of carrying out their respective duties under this Regulation in accordance with Regulation (EU) No 1095/2010.

2.  Competent authorities and ESMA shall exchange all information and documentation necessary tocarry out their respective duties under this Regulation in accordance with Regulation (EU) No 1095/2010, in particular to identify and remedy breaches of this Regulation.

Article 22a

In case of disagreement between competent authorities of Member States on an assessment, action or omission of one competent authority in areas where this Regulation requires cooperation or coordination between competent authorities from more than one Member State, competent authorities may refer the matter to ESMA, which may act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No 1095/2010, in so far as the disagreement is not related to Article 3(1)(a)(iii) or Article 3(1)(d)(-i) of this Regulation.

Article 23

1.  All persons who work or who have worked for the competent authorities or ESMA, as well as auditors and experts instructed by the competent authorities and ESMA, are bound by the obligation of professional secrecy. No confidential information which those persons receive in the course of their duties shall be divulged to any person or authority whatsoever, save in summary or aggregate form such that EuSEF managers and EuSEFs cannot be individually identified, without prejudice to cases covered by criminal law and proceedings under this Regulation.

2.  The competent authorities of the Member States or ESMA shall not be prevented from exchanging information in accordance with this Regulation or other Union law applicable to EuSEF managers and EuSEFs.

3.  Where competent authorities and ESMA receive confidential information in accordance with paragraph 1, they may use it only in the course of their duties and for the purpose of administrative and judicial proceedings.

CHAPTER IV

TRANSITIONAL AND FINAL PROVISIONS

Article 24

1.  The power to adopt delegated acts is conferred on the Commission subject to the conditions set out in this Article.

2.  The delegation of power referred to in Article ▌3(2), Article 8(5), Article 9(2) and Article 13(4) shall be conferred on the Commission for a period of four years from ...(16). The Commission shall draw up a report in respect of the delegation of powers not later than nine months before the end of the four-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

3.  The delegation of powers referred to in Article ▌3(2), Article 8(5), Article 9(2), and Article 13(4) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4.  As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5.  A delegated act shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of three months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or the Council.

Article 25

1.  At the latest four years after the date of application of this Regulation, the Commission shall review this Regulation. The review shall include a general survey of the functioning of the rules in this Regulation and the experience acquired in applying them, including:

   (a) the extent to which the designation ’EuSEF’ has been used by EuSEF managers in different Member States, whether domestically or on a cross border basis;
     (aa) the geographical location of EuSEFs and whether additional measures are necessary to ensure that EuSEFS are established in accordance with Article 3(1)(a)(iii);
   (ab) the geographical and sectoral distribution of investments undertaken by EuSEFs;
   (b) the use of the different qualifying investments by EuSEFs and how this has impacted the development of social undertakings across the Union;
   (ba) the appropriateness of establishing a European label for ’social enterprises’;
     (bb) the possibility of extending the marketing of EuSEFs to retail investors;
   (c) the practical application of the criteria for identifying qualifying portfolio undertakings, the impact of this on the development of social undertakings across the Union and their positive social impact;
     (ca) an analysis of the procedures implemented by EuSEF managers so as to measure the positive social impact generated by the qualifying portfolio undertakings referred to in Article 9 and an assessment of the feasibility of introducing harmonised standards for measuring the social impact at Union level in a manner consistent with Union social policy;
   (cb) the appropriateness of complementing this Regulation with a depositary regime;
   (cd) the appropriateness of including EuSEFs within eligible assets under Directive 2009/65/EC;
   (ce) the appropriateness of the information requirements under Article 13, in particular whether they are sufficient to enable investors to take an informed investment decision;
   (cf) an examination of possible tax obstacles for social entrepreneurship funds and an assessment of possible tax incentives aimed at encouraging social entrepreneurship in the Union;
   (cg) an evaluation of any barriers that may have impeded the uptake of the funds by investors, including the impact on institutional investors of other Union legislation of a prudential nature.

2.  Following the review referred to in paragraph 1 and after consulting ESMA the Commission shall submit a report to the European Parliament and the Council accompanied, if appropriate, by a legislative proposal.

Article 25a

1.  By 22 July 2017, the Commission shall start a review of the interaction between this Regulation and other rules on collective investment undertakings and their managers, especially those of Directive 2011/61/EU. This review shall address the scope of this Regulation. It shall gather data for assessing whether it is necessary to extend the scope to allow for managers who manage EuSEFs the total assets of which exceed the threshold provided for in Article 2(1) to become EuSEF managers.

2.  Following the review referred to in paragraph 1 and after consulting ESMA the Commission shall submit a report to the European Parliament and the Council accompanied, if appropriate, by a legislative proposal.

Article 26

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

It shall apply from the 22 July 2013, except for Article 3(2), Article 8(5), Article 9(2) and Article 13(4), which shall apply from the date of entry into force of the Regulation.

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

Done at ...

For the European Parliament

The President

The President

For the Council

(1) The matter was referred back to the committee responsible for reconsideration pursuant to Rule 57(2), second subparagraph (A7-0194/2012).
(2)* Amendments: new or amended text is highlighted in bold italics; deletions are indicated by the symbol ▌.
(3) OJ C 175, 19.6.2012, p. 11.
(4) OJ C 229, 31.7.2012, p. 55.
(5) Position of the European Parliament of …
(6) OJ L 302, 17.11.2009, p. 32.
(7) OJ L 174, 1.7.2011, p. 1.
(8) OJ L 145, 30.4.2004, p. 1.
(9) OJ L 331, 15.12.2010, p. 84.
(10) OJ L 281, 23.11.1995 p. 31.
(11) OJ L 8, 12.1.2001, p. 1.
(12) OJ L 390, 31.12.2004, p. 38.
(13) OJ L 345, 31.12.2003, p. 64.
(14)* Nine months after entry into force of this Regulation.
(15)* 24 months after entry into force of this Regulation.
(16)* Entry into force of this Regulation.


European Venture Capital Funds ***I
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Text
Consolidated text
Amendments adopted by the European Parliament on 13 September 2012 on the proposal for a regulation of the European Parliament and of the Council on European Venture Capital Funds (COM(2011)0860 – C7-0490/2011 – 2011/0417(COD))(1)
P7_TA(2012)0346A7-0193/2012

(Ordinary legislative procedure: first reading)

[Amendment No 2]

AMENDMENTS BY THE EUROPEAN PARLIAMENT(2)
P7_TA(2012)0346A7-0193/2012
to the Commission proposal
P7_TA(2012)0346A7-0193/2012

REGULATION (EU) No …/2012
OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on European Venture Capital Funds
(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Central Bank(3),

Having regard to the opinion of the European Economic and Social Committee(4),

Acting in accordance with the ordinary legislative procedure(5),

Whereas:

(1)  Venture capital provides finance to undertakings that are generally very small, in the initial stages of their corporate existence and display a strong potential for growth and expansion. In addition, venture capital funds provide ▌ undertakings with valuable expertise and knowledge, business contacts, brand-equity and strategic advice. By providing finance and advice to these undertakings, venture capital funds stimulate economic growth, contribute to the creation of jobs and capital mobilisation, foster the establishment and expansion of innovative undertakings, increase their investment in research and development and foster entrepreneurship, innovation and competitiveness in line with the objectives of EU 2020 Strategy and in the context of the long-term challenges of the Member States, such as those identified in the European Strategy and Policy Analysis System's report, Global Trends 2030.

(2)  It is necessary to lay down a common framework of rules regarding the use of the designation for European Venture Capital Funds, ’EuVECA’, in particular the composition of the portfolio of funds that operate under this designation, their eligible investment targets, the investment tools they may employ and the categories of investors that are eligible to invest in such funds by uniform rules in the Union. In the absence of such a common framework, there is a risk that Member States take diverging measures at national level having a direct negative impact on, and creating obstacles to, the good functioning of the internal market, since venture capital funds that wish to operate across the Union would be subject to different rules in different Member States. Moreover, diverging quality requirements on portfolio composition, investment targets and eligible investors could lead to different levels of investor protection and generate confusion as to the investment proposition associated with a ’EuVECA’. Investors should, furthermore, be able to compare the investment propositions of different venture capital funds. It is necessary to remove significant obstacles to cross-border fundraising by venture capital funds and to avoid distortions of competition between those funds, and to prevent any further likely obstacles to trade and significant distortions of competition from arising in the future. Consequently, the appropriate legal basis is Article 114 of the Treaty on the Functioning of the European Union, as interpreted in accordance with the consistent case law of the Court of Justice of the European Union.

(3)  It is necessary to adopt a Regulation establishing uniform rules applicable to the European Venture Capital Funds and imposing corresponding obligations on their managers in all Member States that wish to raise capital across the Union using the designation ’EuVECA’. These requirements should ensure the confidence of investors that wish to invest in venture capital funds.

(4)  Defining the quality requirements for the use of the designation ’EuVECA’ in the form of a Regulation would ensure that those requirements will be directly applicable to the managers of collective investment undertakings that raise funds using this designation. This would ensure uniform conditions for the use of this designation by preventing diverging national requirements as a result of the transposition of a Directive. This Regulation would entail that managers of collective investment undertakings that use this designation would need to follow the same rules in all of the Union, which would also boost confidence of investors that wish to invest in venture capital funds. A Regulation would also reduce regulatory complexity and the managers’ cost of compliance with often divergent national rules governing venture capital funds, especially for those managers that want to raise capital on a cross-border basis. A Regulation should also contribute to eliminating competitive distortions.

(4a)  As stated in the Commission Communication of 7 December 2011 entitled An action plan to improve access to finance for SMEs, in 2012 the Commission will complete its examination of tax obstacles to cross-border venture capital investments with a view to presenting solutions in 2013 aimed at eliminating the obstacles while at the same time preventing tax avoidance and evasion.

(4b)  It should be possible for a qualifying venture capital fund to be either externally or internally managed. Where the qualifying venture capital fund is internally managed, the qualifying venture capital fund is also the manager and should therefore comply with all requirements for managers of qualifying venture capital funds under this Regulation and be registered as such. A qualifying venture capital fund which is internally managed should however not be permitted to be the external manager of other collective investment undertakings or UCITS.

(5)  In order to clarify the relationship between this Regulation and other rules on collective investment undertakings and their managers, it is necessary to establish that this Regulation should only apply to managers of collective investment undertakings, other than UCITS in accordance with Article 1 of Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS)(6) who are established in the Union and are registered with the competent authority in their home Member State in accordance with Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers(7), provided that those managers manage portfolios of qualifying venture capital funds. However, venture capital fund managers who are registered under this Regulation and who are external managers should be allowed to additionally manage UCITS subject to authorisation under Directive 2009/65/EC.

(5a)  Furthermore, this Regulation applies only ▌to managers of those collective investment undertakings whose assets under management in total do not exceed the threshold referred to in Article 3(2)(b) of Directive 2011/61/EU. This means that the calculation of the threshold for the purposes of this Regulation follows the calculation of the threshold of Article 3(2)(b) of Directive 2011/61/EU.

(5b)  However, venture capital fund managers who are registered under this Regulation and whose assets in total subsequently grow to exceed the threshold referred to in Article 3(2)(b) of Directive 2011/61/EU, and who therefore become subject to authorisation with the competent authorities of their home Member State in accordance with Article 6 of that Directive, may continue to use the designation ’EuVECA’ in relation to the marketing of qualifying venture capital funds in the Union, provided that they comply with the requirements laid down in that Directive and that they continue to comply with certain requirements for the use of the designation ’EuVECA’ specified in this Regulation at all times in relation to the qualifying venture capital funds. This applies to both existing qualifying venture capital funds and qualifying venture capital funds established after exceeding the threshold.

(6)  Where managers of collective investment undertakings do not wish to use the designation ’EuVECA’, this Regulation should not apply. In these cases, existing national rules and general Union rules should continue to apply.

(7)  This Regulation should establish uniform rules on the nature of qualifying venture capital funds, notably on the portfolio undertakings into which the qualifying venture capital funds are to be permitted to invest and the investment instruments to be used. This is necessary so that a clear demarcation line can be drawn between a qualifying venture capital fund and other alternative investment funds that engage in other, less specialised, investment strategies, for example buyouts or speculative real estate investments, which this Regulation is not seeking to promote.

(8)  In line with the aim of precisely circumscribing the collective investment undertakings which will be covered by this Regulation and in order to ensure a focus on providing capital to small undertakings in the initial stages of their corporate existence, qualifying venture capital funds should be deemed to be those funds that intend to invest at least 70 % of their aggregate capital contributions and uncalled committed capital ▌in such undertakings ▌. The qualifying venture capital fund should not be permitted to invest more than 30 % of its aggregate capital contributions and uncalled committed capital in assets other than qualifying investments. This means that whereas the 30 % should be the maximum limit for non-qualifying investments at all times, the 70 percent should be reserved for qualifying investments during the life time of the qualifying venture capital fund. The above mentioned limits should be calculated on the basis of amounts investible after deduction of all relevant costs and holdings of cash and cash equivalents. This Regulation should set out the details necessary for the calculation of the referred investment limits.

(8a)  The purpose of this Regulation is to support growth and innovation in small and medium-sized enterprises (SMEs) in the Union. Investments in qualifying portfolio undertakings established in third countries can bring more capital to qualifying venture capital funds and thereby benefit SMEs in the Union. However, under no circumstances should investments be made into third country portfolio undertakings that are located in tax havens or uncooperative jurisdictions.

(8b)  A qualifying venture capital fund should not be established in tax havens or uncooperative jurisdictions, such as third countries characterised in particular by no or nominal taxes, a lack of appropriate cooperation arrangements between the competent authorities of the home Member State of the venture capital fund manager and the supervisory authorities of the third country where the qualifying venture capital fund is established, or a lack of effective exchange of information in tax matters. A qualifying venture capital fund should also not invest in jurisdictions displaying any of the above criteria.

(8c)  Managers of a qualifying venture capital fund should be able to attract additional capital commitments during the lifetime of that fund. Such additional capital commitments in the lifetime of the qualifying venture capital fund should be taken into account when the next investment in assets other than qualifying assets is contemplated. Additional capital commitments should be permitted in accordance with criteria and subject to conditions set out in the qualifying venture capital fund's rules or instruments of incorporation.

(8d)  The qualifying investments should be in the form of equity or quasi equity instruments. Quasi equity instruments comprise a type of financing instrument, which is a combination of equity and debt, where the return on the instrument is linked to the profit or loss of the qualifying portfolio undertaking, and where the repayment of the instrument in the event of default is not fully secured. Such instruments include a variety of financing instruments such as subordinated loans, silent participations, participating loans, profit participating rights, convertible bonds and bonds with warrants. As a possible complement to - but not a substitute for - equity and quasi equity instruments, secured or unsecured loans, e.g. bridge financing, granted by the qualifying venture capital fund to a qualifying portfolio undertaking in which the qualifying venture capital fund already holds qualifying investments, should be permitted, provided that no more than 30 percent of the aggregate capital contributions and uncalled committed capital in the qualifying venture capital fund is used for such loans. Furthermore, to reflect existing business practises in the venture capital market, a qualifying venture capital fund should be allowed to buy existing shares of a qualifying portfolio undertaking from existing shareholders of that undertaking. Also, for the purposes of ensuring the widest possible opportunities for fundraising, investments into other qualifying venture capital funds should be permitted. To prevent dilution of the investments into qualifying portfolio undertakings, qualifying venture capital funds should only be permitted to invest into other qualifying venture capital funds, provided that those qualifying venture capital funds have not themselves invested more than 10 percent of their aggregate capital contributions and uncalled committed capital in other qualifying venture capital funds.

(8e)  The core activities of venture capital funds are providing finance to SMEs through primary investments. Venture capital funds should not participate in systemically important banking activities outside of the usual prudential regulatory framework (so-called ’shadow banking’). Neither should they follow typical private equity strategies, such as leveraged buyouts.

(8f)  In line with the Europe 2020 strategy for delivering smart, sustainable and inclusive growth, this Regulation aims to promote venture capital investments into innovative SMEs anchored in the real economy. Credit institutions, investment firms, insurance undertakings, financial holding companies and mixed-activity holding companies should therefore be excluded from the definition of qualifying portfolio undertakings under this Regulation.

(9)  In order to put in place an essential safeguard that differentiates qualifying venture capital funds under this Regulation from the broader category of alternative investment funds which trade in issued securities on secondary markets, it is necessary to lay down rules so that qualifying venture capital funds make investments primarily in directly issued instruments.

(10)  In order to allow venture capital fund managers a certain degree of flexibility in the investment and liquidity management of their qualifying venture capital funds, ▌trading, such as in shares or participations in non-qualifying portfolio undertakings or acquisitions of non-qualifying investments, should be permitted up to a maximum threshold not exceeding 30 percent of aggregate capital contributions and uncalled capital ▌. ▌

(11)  In order to ensure that the designation ’EuVECA’ is reliable and easily recognisable for investors across the Union this Regulation should establish that only venture capital fund managers which comply with the uniform quality criteria as set out in this Regulation shall be eligible to use the designation ’EuVECA’ when marketing qualifying venture capital funds across the Union.

(12)  In order to ensure that qualifying venture capital funds have a distinct and identifiable profile which is suited to their purpose, there should be uniform rules on the composition of the portfolio and on the investment techniques which are permitted for such qualifying funds.

(13)  In order to ensure that qualifying venture capital funds do not contribute to the development of systemic risks, and ▌that such funds concentrate, in their investment activities, on supporting qualifying portfolio undertakings, the use of leverage at the level of the fund should not be permitted. The venture capital fund manager should only be permitted to borrow, issue debt obligations or provide guarantees, at the level of the qualifying venture capital fund, provided that such borrowings, debt obligations or guarantees are covered by uncalled commitments and thus do not increase the exposure of the fund beyond the level of its committed capital. Under this approach cash advances from investors of the qualifying venture capital fund that are fully covered by capital commitments from those investors do not increase the exposure of the qualifying venture capital fund and should therefore be allowed. Also, in order to permit the fund to cover extraordinary liquidity needs that might arise between a call of committed capital from investors and the actual reception of the capital in its accounts, short-term borrowing should be allowed provided that it does not exceed uncalled committed capital.

(14)  In order to ensure that qualifying venture capital funds are only marketed to investors who have the ▌experience, knowledge and expertise to make their own investment decisions and properly assess the risks these funds carry, and in order to maintain investor confidence and trust in qualifying venture capital funds, certain specific safeguards should be laid down. Therefore, qualifying venture capital funds should ▌only be marketed to investors who are professional clients or who can be treated as professional clients under Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments(8). However, in order to have a sufficiently broad investor base for investment into qualifying venture capital funds it is also desirable that certain other investors have access to qualifying venture capital funds, including high net worth individuals. For those other investors, however, specific safeguards should be laid down in order to ensure that qualifying venture capital funds are only marketed to investors that have the appropriate profile for making such investments. These safeguards exclude marketing through the use of periodic savings plans. Furthermore, investments made by executives, directors or employees involved in the management of a venture capital fund manager should be possible when investing in the qualifying venture capital fund they manage, as such individuals are knowledgeable enough to participate in venture capital investments.

(15)  To ensure that only venture capital fund managers who fulfil uniform quality criteria as regards their behaviour in the market use the designation ’EuVECA’, this Regulation should establish rules on the conduct of business and the relationship of the venture capital fund manager to its investors. For the same reason this Regulation should lay down uniform conditions concerning the handling of conflicts of interest by such managers. These rules should also require the manager to have the necessary organisational and administrative arrangements in place to ensure a proper handling of conflicts of interest.

(15a)  Where a venture capital fund manager intends to delegate functions to third parties, the manager's liability towards the venture capital fund and its investors should not be affected by the delegation of functions by the venture capital fund manager to a third party. Moreover, the venture capital fund manager should not delegate functions to the extent that, in essence, it can no longer be considered to be the venture capital fund manager and has become a letter-box entity. The venture capital fund manager should remain responsible for the proper performance of delegated functions and compliance with this Regulation at all time. The delegation of functions should not undermine the effectiveness of supervision of the venture capital fund manager, and, in particular, should not prevent the venture capital fund manager from acting, or the venture capital fund from being managed, in the best interests of its investors.

(16)  In order to ensure the integrity of the designation ’EuVECA’ this Regulation should also contain quality criteria as regards the organisation of a venture capital fund manager. Therefore, this Regulation should lay down uniform, proportionate requirements for the need to maintain adequate technical and human resources ▌.

(16a)  In order to ensure the proper management of the qualifying venture capital fund and the ability of the manager to cover potential risks arising from its activities this Regulation should lay down uniform, proportionate requirement for the venture capital fund managers to maintain sufficient own funds. The amount of such own funds should be sufficient to ensure the continuity and proper management of qualifying venture capital funds.

(17)  It is necessary for the purpose of investor protection to ensure that the assets of the qualifying venture capital fund are properly evaluated. Therefore, the rules or instruments of incorporation of qualifying venture capital funds should contain rules on the valuation of assets. This should ensure the integrity and transparency of the valuation.

(18)  In order to ensure that venture capital fund managers which make use of the designation ’EuVECA’ give sufficient account of their activities, uniform rules on annual reports should be established.

(19)  It is necessary, for the purposes of ensuring the integrity of the designation ’EuVECA’ in the eyes of investors that it is only used by venture capital fund managers who are fully transparent as to their investment policy and their investment targets. This Regulation should therefore set out uniform rules on disclosure requirements that are incumbent on a venture capital fund manager in relation to its investors. In particular, there should be pre-contractual disclosure obligations related to the investment strategy and objectives of the qualifying venture capital funds, the investment instruments which are used, information on costs and associated charges, and the risk/reward profile of the investment proposed by a qualifying fund. In view of achieving a high degree of transparency, such disclosure requirements should also include information on how the remuneration of the venture capital fund manager is calculated.

(20)  In order to ensure effective supervision of the uniform requirements contained in this Regulation, the competent authority of the home Member State should supervise compliance of the venture capital fund manager with the uniform requirements set out in this Regulation. To this effect, the qualifying venture capital manager who wishes to market its qualifying funds under the designation ’EuVECA’ should inform the competent authority of his home Member State of this intention. The competent authority should register the venture capital fund manager if all necessary information has been provided and if ▌suitable arrangements to comply with the requirements of this Regulation are in place. This registration should be valid across the entire Union.

(20a)  In order to facilitate the efficient cross-border marketing of qualifying venture capital funds, registration of the manager should be as quick as possible.

(20b)  While safeguards are included in this Regulation to ascertain that funds are properly used, supervisory authorities should be vigilant in ensuring that those safeguards are complied with.

(21)  In order to ensure effective supervision of compliance with the uniform criteria set out in this Regulation, this Regulation should contain rules on the circumstances under which information supplied to the competent authority in the home Member State needs to be updated.

(22)  For the effective supervision of the requirements of this Regulation, this Regulation should also lay down a process for cross-border notifications between the competent supervisory authorities, to be triggered by the registration of the venture capital fund manager in its home Member State.

(23)  In order to maintain transparent conditions for the marketing of qualifying venture capital funds across the Union, the European Supervisory Authority (European Securities and Markets Authority) (’ESMA’), established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council(9), should be entrusted with maintaining a central database listing all qualifying venture capital fund managers and the qualifying venture capital funds they manage that are registered in accordance with this Regulation.

(23a)  Where the competent authority of the host Member State has clear and demonstrable grounds for believing that the venture capital fund manager acts in breach of this Regulation within its territory, it should promptly inform the competent authority of the home Member State, which should take appropriate measures.

(23b)  If, despite the measures taken by the competent authority of the home Member State or because the competent authority of the home Member State fails to act within a reasonable timeframe, or the venture capital fund manager persists in acting in a manner that is clearly in conflict with this Regulation, the competent authority of the host Member State may, after informing the competent authority of the home Member State, take all the appropriate measures needed in order to protect investors, including the possibility of preventing the manager concerned from carrying out any further marketing of its venture capital funds within the territory of the host Member State.

(24)  In order to ensure the effective supervision of the uniform criteria established in this Regulation, this Regulation should contain a list of supervisory powers that competent authorities shall have at their disposal.

(25)  In order to ensure proper enforcement, this Regulation should contain administrative sanctions and measures for the breach of key provisions of this Regulation, which are the rules on portfolio composition, on safeguards relating to the identity of eligible investors, and on the use of the designation ’EuVECA’ only by registered venture capital fund managers. It should be established that a breach of these key provisions entails the prohibition of the use of the designation and the removal of the venture capital fund manager from the register.

(26)  Supervisory information should be exchanged between the competent authorities in the home and host Member States and ESMA.

(27)  Effective regulatory cooperation among the entities tasked with supervising compliance with the uniform criteria set out in this Regulation requires that a high level of professional secrecy should apply to all relevant national authorities and to ESMA.

(28)  Technical standards in financial services should ensure consistent harmonisation and a high level of supervision across the Union. As a body with highly specialised expertise, it would be efficient and appropriate to entrust ESMA with the elaboration of draft implementing technical standards where these do not involve policy choices, for submission to the Commission.

(29)  The Commission should be empowered to adopt implementing technical standards by means of implementing acts pursuant to Article 291 of the Treaty on the Functioning of the European Union and in accordance with Article 15 of Regulation (EU) No 1095/2010 of the European Parliament and the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority)(10). ESMA should be entrusted with drafting implementing technical standards for the format ▌of the notification referred to in this Regulation.

(30)  In order to specify the requirements set out in this Regulation, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of ▌the types of conflicts of interests venture capital funds managers need to avoid and the steps to be taken in that respect. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

(32)  At the latest four years after the date on which this Regulation becomes applicable a review of this Regulation should be carried out in order to take account of the development of the venture capital market. The review should include a general survey of the functioning of the rules in this Regulation and the experience acquired in applying them. On the basis of the review, the Commission should submit a report to the European Parliament and the Council accompanied, if appropriate, by legislative proposals.

(32a)  Furthermore, by 22 July 2017, the Commission should start a review of the interaction between this Regulation and other rules on collective investment undertakings and their managers, especially those of Directive 2011/61/EU. In particular, this review should address the scope of this Regulation assessing whether it is necessary to extend the scope to allow for larger alternative investment funds managers to use the designation ’EuVECA’. On the basis of the review, the Commission should submit a report to the European Parliament and the Council accompanied, if appropriate, by legislative proposals.

(32b)  In the context of this review, the Commission should evaluate any barriers that may have impeded the uptake of the funds by investors, including the impact on institutional investors of other regulation as may apply to them of a prudential nature. In addition, the Commission should gather data for assessing the contribution of EuVECA to other Union programs such as Horizon 2020 that seek also to support innovation in the Union.

(32c)  In light of the Commission Communication on an Action Plan to improve to access to finance for SMEs, and the Commission Communication of 6 October 2010 entitled ’European 2020 Flagship Initiative: Innovation Union’, it is important to ensure the effectiveness of public schemes across the Union to support the venture capital market, and the coordination and mutual coherence of different Union policies aimed at fostering innovation, including policies on competition and research. A key focus of Union policies on innovation and growth is green technology, given the objective of the Union to be a global leader on smart and sustainable growth and on energy and resource efficiency, including in respect of financing for SMEs. When reviewing this Regulation, it will be important to assess its impact on progress towards this objective.

(32d)  ESMA should assess its staffing and resources needs arising from the assumption of its powers and duties in accordance with this Regulation and submit a report to the European Parliament, the Council and the Commission.

(32e)  The European Investment Fund (EIF) invests, amongst other things, in venture capital funds across the Union. The measures in this Regulation to allow for the easy identification of venture capital funds with defined common features should make it easier for the EIF to identify venture capital funds under this Regulation as possible investment targets. The EIF should therefore be encouraged to invest in European venture capital funds.

(33)  This Regulation respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, including the right to respect for private and family life (Article 7) and the freedom to conduct a business (Article 16).

(34)  Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(11) governs the processing of personal data carried out in the Member States in the context of this Regulation and under the supervision of the Member States competent authorities, in particular the public independent authorities designated by the Member States. Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the EU institutions and bodies and on the free movement of such data(12), governs the processing of personal data carried out by ESMA within the framework of this Regulation and under the supervision of the European Data Protection Supervisor.

(35)  This Regulation should be without prejudice to the application of state aid rules to qualifying venture capital funds.

(36)  Since the objectives of this Regulation, namely to ensure uniform requirements apply to the marketing of qualifying venture capital funds, and to establish a simple registration system for venture capital fund managers, thereby taking full account of the need to balance safety and reliability associated with the use of the designation ’EuVECA’ with the efficient operation of the venture capital market and the cost for its various stakeholders, cannot be sufficiently achieved by the Member States and can therefore, by reason of its scale and effects, be better achieved at Union level, the Union may ▌adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation ▌does not go beyond what is necessary in order to achieve those objectives,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

SUBJECT MATTER, SCOPE AND DEFINITIONS

Article 1

This Regulation lays down uniform requirements and conditions for those managers of collective investment undertakings who wish to use the designation EuVECA’ in relation to the marketing of qualifying venture capital funds in the Union, and thereby contributing to the smooth functioning of the internal market. It lays down uniform rules for the marketing of qualifying venture capital funds to eligible investors across the Union, for the portfolio composition of qualifying venture capital funds, for the eligible investment instruments and techniques to be used by qualifying venture capital funds as well as for the organisation, conduct and transparency of venture capital fund managers that market qualifying venture capital funds across the Union.

Article 2

1.  This Regulation applies to managers of collective investment undertakings as defined in point (b) of Article 3, whose assets under management in total do not exceed the threshold referred to in Article 3(2)(b) of Directive 2011/61/EU, who are established in the Union and who are subject to registration with the competent authorities of their home Member State in accordance with point (a) of Article 3(3) of Directive 2011/61/EU, provided that those managers manage portfolios of qualifying venture capital funds ▌.

1a.  Venture capital fund managers registered under this Regulation in accordance with Article 13, and whose assets in total subsequently grow to exceed the threshold referred to in Article 3(2)(b) of Directive 2011/61/EU, and who therefore become subject to authorisation with the competent authorities of their home Member State in accordance with Article 6 of that Directive, may continue to use the designation ’EuVECA’ in relation to the marketing of qualifying venture capital funds in the Union, provided that they comply with the requirements laid down in that Directive and that they continue to comply with the Articles 3, 5, 12(b) and (ga) of this Regulation at all times in relation to the qualifying venture capital funds.

1b.  Venture capital fund managers that are registered in accordance with this Regulation may additionally manage UCITS subject to authorisation under Directive 2009/65/EC provided that they are external managers.

Article 3

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

  (a) ’qualifying venture capital fund’ means a collective investment undertaking that:
   (i) intends to invest at least 70 percent of its aggregate capital contributions and uncalled committed capital in assets that are qualifying investments within a time frame laid down in the rules or instruments of incorporation of the qualifying venture capital fund;
   (ii) never uses more than 30 percent of the fund's aggregate capital contributions and uncalled committed capital for the acquisition of assets other than qualifying investments;
  (iii) is established within the territory of a Member State, or in a third country provided that the third country:

The limits referred to in points (i) and (ii) shall be calculated on the basis of amounts investible after the deduction of all relevant costs and holdings in cash and cash equivalents;
     - does not provide for tax measures which entail no or nominal taxes or where advantages are granted even without any real economic activity and substantial economic presence within the third country offering such tax advantages;
     - has appropriate cooperation arrangements with the competent authorities of the home Member State of the venture capital fund manager which entails that an efficient exchange of information can be ensured within the meaning of Article 21 of this Regulation that allows the competent authorities to carry out their duties in accordance with this Regulation;
     - is not listed as a Non-Cooperative Country and Territory by FATF;
     - has signed an agreement with the home Member State of the venture capital fund manager and with each other Member State in which the units or shares of the qualifying venture capital fund are intended to be marketed, so that it is ensured that the third country fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements.
   (aa) ’relevant costs’ means all fees, charges and expenses which are directly or indirectly borne by investors and which are agreed between the manager of the qualifying venture capital fund and the investors;
   (b) ’collective investment undertaking’ means an AIF as defined in Article 4(1)(a) of Directive 2011/61/EU;
  (c) ’qualifying investments’ means any of the following instruments:
    (i) equity or quasi equity instruments that are
     - issued by a qualifying portfolio undertaking and acquired directly by the qualifying venture capital fund from the qualifying portfolio undertaking, ▌
     - issued by a qualifying portfolio undertaking in exchange for an equity security issued by the qualifying portfolio undertaking, or
     - issued by an undertaking of which the qualifying portfolio undertaking is a majority-owned subsidiary and which is acquired by the qualifying venture capital fund in exchange for an equity instrument issued by the qualifying portfolio undertaking;
     (ii) secured or unsecured loans granted by the qualifying venture capital fund to a qualifying portfolio undertaking in which the qualifying venture capital fund already holds qualifying investments, provided that no more than 30 percent of the aggregate capital contributions and uncalled committed capital in the qualifying venture capital fund is used for such loans;
   (iii) shares of a qualifying portfolio undertaking acquired from existing shareholders of that undertaking;
   (iv) units or shares of one or several other qualifying venture capital funds, provided that those qualifying venture capital funds have not themselves invested more than 10 percent of their aggregate capital contributions and uncalled committed capital in qualifying venture capital funds;
  (d) ’qualifying portfolio undertaking’ means an undertaking that:
  (i) at the time of an investment by the qualifying venture capital fund:
     - is not admitted to trading on a regulated market or on a multilateral trading facility (MTF) as defined in point (14) and point (15) of Article 4(1) of Directive 2004/39/EC,
     - employs fewer than 250 persons, and
     - either has an annual turnover not exceeding EUR 50 million, or an annual balance sheet in total not exceeding EUR 43 million;
     (ii) is not itself a collective investment undertaking;
    (iii) is not one or more of the following:
     - a credit institution within the meaning of Article 4(1) of Directive 2006/48/EC,
     - an investment firm within the meaning of Article 4(1) of Directive 2004/39/EC,
     - an insurance undertaking within the meaning of Article 13(1) of Directive 2009/138/EC,
     - a financial holding company within the meaning of Article 4(19) of Directive 2006/48/EC, or
     - a mixed-activity holding company within the meaning of Article 4(20) of Directive 2006/48/EC;
  (iv) is established within the territory of a Member State, or in a third country provided that the third country:
     - does not provide for tax measures which entail no or nominal taxes or where advantages are granted even without any real economic activity and substantial economic presence within the third country offering such tax advantages,
     - is not listed as a Non-Cooperative Country and Territory by FATF,
     - has signed an agreement with the home Member State of the venture capital fund manager and with each other Member State in which the units or shares of the qualifying venture capital fund are intended to be marketed, so that it is ensured that the third country fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements;
   (e) ’equity’ means ownership interest in an undertaking, represented by the shares or other forms of participation in the capital of the qualifying portfolio undertaking, issued to its investors;
   (f) ’quasi-equity’ means any type of financing instrument which is a combination of equity and debt, where the return on the instrument is linked to the profit or loss of the qualifying portfolio undertaking and where the repayment of the instrument in the event of default is not fully secured;
   (g) ’marketing’ means a direct or indirect offering or placement at the initiative of the venture capital fund manager or on behalf of the venture capital fund manager of units or shares of a venture capital fund it manages to or with investors domiciled or with a registered office in the Union;
   (h) ’committed capital’ means any commitment pursuant to which an investor is obliged, within the time frame laid down in the rules or instruments of incorporation of the qualifying venture capital fund, to acquire an interest in the venture capital fund or make capital contributions to the venture capital fund;
   (i) ’venture capital fund manager’ means a legal person whose regular business is managing at least one qualifying venture capital fund;
   (j) ’home Member State’ means the Member State where the venture capital fund manager is established and is subject to registration with the competent authorities in accordance with point (a) of Article 3(3) of Directive 2011/61/EU;
   (k) ’host Member State’ means the Member State, other than the home Member State, where the venture capital fund manager markets qualifying venture capital funds in accordance with this Regulation;
   (l) ’competent authority’ means the national authority which the home Member State designates, by law or regulation, to undertake the registration of managers of collective investment undertakings as referred to in paragraph (1) of Article 2;
   (la) ’UCITS’ means an undertaking for collective investment in transferable securities authorised in accordance with Article 5 of Directive 2009/65/EC.

In regard to point (i) of the first subparagraph, where the legal form of a qualifying venture capital fund permits internal management and where the governing body of the fund chooses not to appoint an external manager, the qualifying venture capital fund itself shall be registered as the venture capital fund manager. A qualifying venture capital fund who is registered as internal venture capital fund manager can not be registered as external venture capital fund manager of other collective investment undertakings.

CHAPTER II

CONDITIONS FOR THE USE OF THE DESIGNATION
EuVECA

Article 4

Venture capital fund managers who comply with the requirements set out in this Chapter shall be entitled to use the designation ’EuVECA’ in relation to the marketing of qualifying venture capital funds in the Union.

Article 5

1.  The venture capital fund manager shall ensure that, when acquiring assets other than qualifying investments, no more than 30 percent of the fund's aggregate capital contributions and uncalled committed capital is used for the acquisition of assets other than qualifying investments; the 30 percent shall be calculated on the basis of amounts investible after the deduction of all relevant costs; holdings in cash and cash equivalents shall not be taken into account for calculating this limit as cash and cash equivalents are not to be considered as investments.

2.  The venture capital fund manager may not employ at the level of the qualifying venture capital fund ▌any method by which the exposure of the fund will be increased beyond the level of its committed capital, whether through borrowing of cash or securities, the engagement into derivative positions or by any other means.

2a.  The venture capital fund manager may only borrow, issue debt obligations or provide guarantees, at the level of the qualifying venture capital fund, where such borrowings, debt obligations or guarantees are covered by uncalled commitments.

Article 6

1.  Venture capital fund managers shall market the units and shares of qualifying venture capital funds exclusively to investors which are considered to be professional clients in accordance with Section I of Annex II of Directive 2004/39/EC or may, on request, be treated as professional clients in accordance with Section II of Annex II of Directive 2004/39/EC, or to other investors where:

   (a) those other investors commit to investing a minimum of EUR 100 000; and
   (b) those other investors state in writing, in a separate document from the contract to be concluded for the commitment to invest, that they are aware of the risks associated with the envisaged commitment or investment.

2.  Paragraph 1 shall not apply to investments made by executives, directors or employees involved in the management of a venture capital fund manager when investing in the qualifying venture capital funds that they manage.

Article 7

Venture capital fund managers shall, in relation to the qualifying venture capital funds they manage:

   (a) act honestly, with due skill, care and diligence and fairly in conducting their activities;
   (b) apply appropriate policies and procedures for preventing malpractices that might reasonably be expected to affect the interests of investors and the qualifying portfolio undertakings;
   (c) conduct their business activities so as to promote the best interests of the qualifying venture capital funds they manage, the investors in those qualifying venture capital funds they manage and the integrity of the market;
   (d) apply a high level of diligence in the selection and ongoing monitoring of investments in qualifying portfolio undertakings;
   (e) possess adequate knowledge and understanding of the qualifying portfolio undertakings in which they invest;
   (ea) treat their investors fairly;
   (eb) ensure that no investor obtains preferential treatment, unless such preferential treatment is disclosed in the rules or instruments of incorporation of the qualifying venture capital fund.

Article 7a

1.  Where a venture capital fund manager intends to delegate functions to third parties, the manager's liability towards the qualifying venture capital fund and its investors shall not be affected by the fact that the manager has delegated functions to a third party, nor shall the manager delegate to the extent that, in essence, it can no longer be considered to be the manager of the qualifying venture capital fund and to the extent that it becomes a letter-box entity.

2.  The delegation must not undermine the effectiveness of supervision of the venture capital fund manager, and, in particular, must not prevent the venture capital fund manager from acting, or the qualifying venture capital fund from being managed, in the best interests of its investors.

Article 8

1.  Venture capital fund managers shall identify and avoid conflicts of interest and, where they cannot be avoided, manage and monitor and, in accordance with paragraph 4, disclose promptly, those conflicts of interest in order to prevent them from adversely affecting the interests of the qualifying venture capital funds and their investors and to ensure that the qualifying venture capital funds they manage are fairly treated.

2.  The venture capital fund manager shall identify in particular those conflicts of interest that may arise between:

   (a) venture capital fund managers, those persons who effectively conduct the business of the venture capital fund manager, employees or any person who directly or indirectly controls or is controlled by the venture capital fund manager, and the qualifying venture capital fund managed by the venture capital fund managers or the investors in those qualifying venture capital funds;
   (b) the qualifying venture capital fund or the investors in that qualifying venture capital fund, and another qualifying venture capital fund managed by the same venture capital fund manager or the investors in that other qualifying venture capital fund;
     (ba) the qualifying venture capital fund or the investors in that qualifying venture capital fund, and a collective investment undertaking or UCITS managed by the same venture capital fund manager or the investors in that collective investment undertaking or UCITS.

3.  Venture capital fund managers shall maintain and operate effective organisational and administrative arrangements in order to comply with the requirements set out in paragraphs 1 and 2.

4.  Disclosures of conflicts of interest as referred to in paragraph 1 shall be provided, where organisational arrangements made by the venture capital fund manager to identify, prevent, manage and monitor conflicts of interest are not sufficient to ensure, with reasonable confidence, that risks of damage to investors’ interests will be prevented. The venture capital fund managers shall clearly disclose the general nature or sources of conflicts of interest to the investors before undertaking business on their behalf.

5.  The Commission shall be empowered to adopt delegated acts in accordance with Article 23 measures specifying:

   (a) the types of conflicts of interest as referred to in paragraph 2 of this Article;
   (b) the steps venture capital fund managers shall take, in terms of structures and organisational and administrative procedures in order to identify, prevent, manage, monitor and disclose conflicts of interest.

Article 9

At all times, venture capital fund managers shall have sufficient own funds and use adequate and appropriate human and technical resources as are necessary for the proper management of qualifying venture capital funds.

It shall be incumbent upon the venture capital fund managers, at all times, to ensure that they are able to justify the sufficiency of their own funds to maintain operational continuity and disclose their reasoning as to why these funds are sufficient as specified in Article 12.

Article 10

Rules for the valuation of assets shall be laid down in the rules or instruments of incorporation of the qualifying venture capital fund and shall ensure a sound and transparent valuation process.

Valuation procedures used shall ensure that the assets are valued properly and that the asset value is calculated at least once a year.

Article 11

1.  The venture capital fund manager shall make available an annual report to the competent authority of the home Member State for each qualifying venture capital fund under management no later than 6 months following the end of the financial year. The report shall describe the composition of the portfolio of the qualifying venture capital fund and the activities of the past year. It shall also include a disclosure of the profits of the qualifying venture capital funds by the end of its life time and, where applicable, a disclosure of the profits distributed during its lifetime. It shall contain the audited financial accounts for the qualifying venture capital fund. The audit shall confirm that money and assets are held in the name of the fund and that the venture capital fund manager has established and maintained adequate records and controls in respect of the use of any mandate or control over the money and assets of the qualifying venture capital fund and its investors, and shall be conducted at least once a year. The annual report shall be produced in accordance with existing reporting standards and the terms agreed between the venture capital fund manager and the investors. The venture capital fund manager shall provide the report to investors on request. Venture capital fund managers and investors may agree to make additional disclosures to each other.

2.  Where the venture capital fund manager is required to make public an annual financial report in accordance with Directive 2004/109/EC of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market(13) in relation to the qualifying venture capital fund, the information referred to in paragraph 1 may be provided either separately or as an additional part of the annual financial report.

Article 12

1.  Venture capital fund managers shall, in relation to the qualifying venture capital funds they manage, inform their investors, in a clear and understandable manner, about the following elements prior to their investment decision:

   (a) the identity of the venture capital fund manager and any other service providers contracted by the venture capital fund manager in relation to their management of the qualifying venture capital funds, and a description of their duties;
     (aa) the amount of own funds available to the venture capital fund manager, as well as a detailed statement as to why the venture capital fund manager deems these own funds sufficient for maintaining the adequate human and technical resources necessary for the proper management of its qualifying venture capital funds;
  (b) a description of the investment strategy and objectives of the qualifying venture capital fund, including:
     (i) the types of the qualifying portfolio undertakings in which it intends to invest;
     (ii) any other ▌qualifying venture capital funds in which it intends to invest;
     (iii) the types of qualifying portfolio undertakings in which any other qualifying venture capital funds, as referred to in point (ii), intend to invest;
     (iv) the non-qualifying investments which it intends to make;
     (v) the techniques it intends to employ; and
     (vi) any applicable investment restrictions;
   (c) a description of the risk profile of the qualifying venture capital fund and any risks associated with the assets in which the fund may invest or investment techniques that may be employed;
   (d) a description of the qualifying venture capital fund's valuation procedure and of the pricing methodology for the valuation of assets, including the methods used for the valuation of qualifying portfolio undertakings;
   (e) a description of how the remuneration of the venture capital fund manager is calculated;
   (f) a description of all relevant costs and of the maximum amounts thereof ▌;
   (g) where available, the historical performance of the qualifying venture capital fund;
     (ga) the business support services and the other support activities the manager of the qualifying venture capital fund is providing or arranging through third parties in order to facilitate the development, growth or in some other respect the on-going operations of the qualifying portfolio undertakings in which the qualifying venture capital fund invests, or, where these services or activities are not provided, an explanation of that fact;
   (h) a description of the procedures by which the qualifying venture capital fund may change its investment strategy or investment policy, or both.

1a.  All of the information referred to in paragraph 1 shall be fair, clear and not misleading. It shall be kept up-to-date and reviewed regularly where relevant.

2.  Where the qualifying venture capital fund is required to publish a prospectus in accordance with Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading(14) or in accordance with national law in relation to the qualifying venture capital fund, the information referred to in paragraph 1 of this Article may be provided either separately or as a part of the prospectus.

CHAPTER III

SUPERVISION, ADMINISTRATIVE COOPERATION

Article 13

1.  Venture capital fund managers who intend to use designation ’EuVECA’ for the marketing of their qualifying venture capital funds shall inform the competent authority of their home Member State of this intention and shall provide the following information:

   (a) the identity of the persons who effectively conduct the business of managing qualifying venture capital funds;
   (b) the identity of the qualifying venture capital funds whose units or shares shall be marketed and their investment strategies;
   (c) information on the arrangements made for complying with the requirements of Chapter II;
   (d) a list of Member States where the venture capital fund manager intends to market each qualifying venture capital fund;
     (da) a list of Member States and third countries where the venture capital fund manager has established, or intends to establish, qualifying venture capital funds.

2.  The competent authority of the home Member State shall only register the venture capital fund manager if it is satisfied that the following conditions are met:

   (-a) the persons who effectively conduct the business of managing the qualifying venture capital fund are of sufficiently good repute and are sufficiently experienced also in relation to the investment strategies pursued by the manager of the qualifying venture capital fund;
   (a) the information required under paragraph 1 is complete;
   (b) the arrangements notified according to point (c) of paragraph 1 are suitable in order to comply with the requirements of Chapter II;
   (ba) the list notified according to point (e) of paragraph 1 reveals that all of the qualifying venture capital funds are established in accordance with Article 3(a)(iii) of this Regulation.

3.  The registration shall be valid for the entire territory of the Union and shall allow venture capital fund managers to market qualifying venture capital funds under the designation ’EuVECA’ throughout the Union.

Article 14

The venture capital fund manager shall inform the competent authority of the home Member State where the venture capital fund manager intends to market:

   (a) a new qualifying venture capital fund;
   (b) an existing qualifying venture capital fund in a Member State not mentioned in the list referred to in point (d) of Article 13(1).

Article 15

1.  Immediately after the registration of a venture capital fund manager, the addition of a new qualifying venture capital fund, the addition of a new domicile for the establishment of a qualifying venture capital fund or the addition of a new Member State where the venture capital fund manager intends to market qualifying venture capital funds, the competent authority of the home Member State shall notify this to the Member States indicated in accordance with point (d) of Article 13(1) and to ESMA

2.  The host Member States indicated in accordance with point (d) of Article 13(1) shall not impose, on the venture capital fund manager registered in accordance with Article 13, any requirements or administrative procedures in relation to the marketing of its qualifying venture capital funds, nor shall they require any approval of the marketing prior to its commencement.

3.  In order to ensure uniform application of this article, ESMA shall develop draft implementing technical standards to determine the format of the notification.

4.  ESMA shall submit those draft implementing technical standards to the Commission by ...(15).

5.  Power is conferred on the Commission to adopt the implementing technical standards referred to in paragraph 3 of this Article in accordance with the procedure laid down in Article 15 of Regulation (EU) No 1095/2010.

Article 16

ESMA shall maintain a central database, publicly accessible on the internet, listing all venture capital fund managers registered in the Union in accordance with this Regulation and all qualifying venture capital funds that they market as well as the countries in which they are marketed.

Article 17

1.  The competent authority of the home Member State shall supervise compliance with the requirements set out in this Regulation.

1a.  Where the competent authority of the host Member State has clear and demonstrable grounds for believing that the venture capital fund manager is in breach of this Regulation within its territory, it shall promptly inform the competent authority of the home Member State accordingly, which shall take appropriate measures.

1b.  If, despite the measures taken by the competent authority of the home Member State or because the competent authority of the home Member State fails to act within a reasonable timeframe, or the venture capital fund manager persists in acting in a manner that is clearly in conflict with this Regulation, the competent authority of the host Member State, may, as a consequence and after informing the competent authority of the home Member State, take all the appropriate measures needed in order to protect investors, including the possibility of preventing the manager concerned from carrying out any further marketing of its venture capital funds within the territory of the host Member State.

Article 18

Competent authorities shall, in conformity with national law, have all supervisory and investigatory powers that are necessary for the exercise of their functions. They shall in particular have the power to:

   (a) request access to any document in any form, and to receive or take a copy thereof;
   (b) require the venture capital fund manager to provide information without delay;
   (c) require information from any person related to the activities of the venture capital fund manager or the qualifying venture capital fund;
   (d) carry out on site inspections with or without prior announcements;
   (da) take appropriate measures to ensure that a venture capital fund manager continues to comply with the requirements of this Regulation;
   (e) issue an order to ensure that a venture capital fund manager complies with the requirements of this Regulation and desists from a repetition of any conduct that may consist of a breach of this Regulation.

Article 19

1.  Member States shall lay down the rules on administrative sanctions and measures ▌applicable to breaches of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The administrative sanctions and measures ▌provided for shall be effective, proportionate and dissuasive.

2.  By ...(16) the Member States shall notify the rules referred to in paragraph 1 to the Commission and ESMA. They shall notify the Commission and ESMA without delay of any subsequent amendment thereto.

Article 20

1.  The competent authority of the home Member State shall, while respecting the principle of proportionality, take the appropriate measures referred to in paragraph 2 where a venture capital fund manager:

   (a) fails to comply with the requirements that apply to portfolio composition in breach of Article 5;
   (b) markets, in breach of Article 6, the units and shares of a qualifying venture capital fund to non-eligible investors ▌;
   (c) uses the designation ’EuVECA’ without being registered with the competent authority of their home Member State in accordance with Article 13;
     (ca) uses the designation ’EuVECA’ for the marketing of funds which are not established in accordance with Article 3(a)(iii) of this Regulation;
   (cb) obtained a registration through false statements or any other irregular means in breach of Article 13;
   (cc) fails to act honestly with due skill, care and diligence and fairly in conducting their business in breach of Article 7(a);
   (cd) fails to apply appropriate policies and procedures for preventing malpractices in breach of Article 7(b);
   (ce) repeatedly fails to comply with the requirements under Article 11 regarding the annual report;
   (cf) repeatedly fails to comply with the obligation to inform investors in accordance with Article 12.

2.  In the cases referred to in paragraph 1 the competent authority of the home Member State shall take the following measures, as appropriate:

   (-a) take measures to ensure that a venture capital fund manager complies with Articles 3(a)(iii), 5, 6, 7(a), 7(b), 11, 12 and 13 of this Regulation;
   (a) prohibit the use of the designation ’EuVECAand remove the venture capital fund manager from the register.

3.  The competent authority of the home Member State shall inform the competent authorities of the host Member States indicated in accordance with point (d) of Article 13(1) and ESMA without delay of the removal of the venture capital fund manager from the register referred to in point (a) of paragraph 2 of this Article

4.  The right to market one or more qualifying venture capital funds under the designation ’EuVECA’ in the Union expires with immediate effect from the date of the decision of the competent authority referred to in point (a) of paragraph 2.

Article 21

1.  Competent authorities and ESMA shall cooperate with each other ▌for the purpose of carrying out their respective duties under this Regulation in accordance with Regulation (EU) No 1095/2010.

2.  Competent authorities and ESMA shall exchange all information and documentation necessary to carry out their respective duties under this Regulation in accordance with Regulation (EU) No 1095/2010, in particular to identify and remedy breaches of this Regulation.

Article 22

1.  All persons who work or who have worked for the competent authorities or ESMA, as well as auditors and experts instructed by the competent authorities, are bound by the obligation of professional secrecy. No confidential information which those persons receive in the course of their duties shall be divulged to any person or authority whatsoever, save in summary or aggregate form such that venture capital fund managers and qualifying venture capital funds cannot be individually identified, without prejudice to cases covered by criminal law and proceedings under this Regulation.

2.  The competent authorities of the Member States or ESMA shall not be prevented from exchanging information in accordance with this Regulation or other Union law applicable to venture capital fund managers and qualifying venture capital funds.

3.  Where competent authorities and ESMA receive confidential information in accordance with paragraph 2, they may use it only in the course of their duties and for the purpose of administrative and judicial proceedings.

Article 22a

Dispute settlement

In case of disagreement between competent authorities of Member States on an assessment, action or omission of one competent authority in areas where this Regulation requires cooperation or coordination between competent authorities from more than one Member State, competent authorities may refer the matter to ESMA, which may act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No 1095/2010, in so far as the disagreement is not related to Article 3(a)(iii) or Article 3(d)(iv) of this Regulation.

CHAPTER IV

TRANSITIONAL AND FINAL PROVISIONS

Article 23

1.  The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2.  The delegation of power referred to in ▌Article 8(5) shall be conferred on the Commission for a period of four years from ...(17). The Commission shall draw up a report in respect of the delegation of powers not later than nine months before the end of the four-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

3.  The delegation of power referred to in ▌Article 8(5) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4.  As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5.  A delegated act adopted pursuant to ▌Article 8(5) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of three months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or the Council.

Article 24

1.  At the latest four years after the date of application of this Regulation, the Commission shall review this Regulation. The review shall include a general survey of the functioning of the rules in this Regulation and the experience acquired in applying them, including:

   (a) the extent to which the designation ’EuVECA’ has been used by venture capital fund managers in different Member States, whether domestically or on a cross border basis;
     (aa) the geographical location of qualifying venture capital funds and whether additional measures are necessary to ensure that qualifying venture capital funds are established in accordance with Article 3(a)(iii);
   (ab) the geographical and sectoral distribution of investments undertaken by European venture capital funds;
   (ac) the use of the different qualifying investments by venture capital fund managers and especially whether there is a need to adjust the qualifying investments in this Regulation;
   (b) the possibility of extending the marketing of European venture capital funds to retail investors;
   (ba) the appropriateness of complementing this Regulation with a depositary regime;
   (bb) the appropriateness of the information requirements under Article 12, in particular whether they are sufficient to enable investors to take an informed investment decision;
   (bc) the effectiveness, proportionality and application of administrative sanctions and measures provided for by Member States in accordance with this Regulation;
   (bd) the impact of this Regulation on the venture capital market;
   (be) an evaluation of any barriers that may have impeded the uptake of the funds by investors, including the impact on institutional investors of other Union legislation of a prudential nature.

2.  Following the review referred to in paragraph 1 and after consulting ESMA the Commission shall submit a report to the European Parliament and the Council accompanied, if appropriate, by a legislative proposal.

Article 24a

1.  By 22 July 2017, the Commission shall start a review of the interaction between this Regulation and other rules on collective investment undertakings and their managers, especially those of Directive 2011/61/EU. This review shall address the scope of this Regulation. It shall gather data for assessing whether it is necessary to extend the scope to allow for managers who manage venture capital funds the total assets of which exceed the threshold provided for in Article 2(1) to become venture capital fund managers in accordance with this Regulation.

2.  Following the review referred to in paragraph 1 and after consulting ESMA the Commission shall submit a report to the European Parliament and the Council accompanied, if appropriate, by a legislative proposal.

Article 25

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

It shall apply from the 22 July 2013, except for ▌ Article 8(5), which shall apply from the date of entry into force of this Regulation.

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

Done at ...

For the European Parliament

The President

The President

For the Council

(1) The matter was referred back to the committee responsible for reconsideration pursuant to Rule 57(2), second subparagraph (A7-0193/2012).
(2)* Amendments: new or amended text is highlighted in bold italics; deletions are indicated by the symbol ▌.
(3) OJ C 175, 19.6.2012, p. 11.
(4) OJ C 191, 29.6.2012, p. 72.
(5) Position of the European Parliament of ….
(6) OJ L 302, 17.11.2009, p. 32.
(7) OJ L 174, 1.7.2011, p. 1.
(8) OJ L 145, 30.4.2004, p. 1.
(9) OJ L 331, 15.12.2010, p. 84.
(10) OJ L 331, 15.12.2010, p. 84.
(11) OJ L 281, 23.11.1995, p. 31.
(12) OJ L 8, 12.1.2001, p. 1.
(13) OJ L 390, 31.12.2004, p. 38.
(14) OJ L 345, 31.12.2003, p. 64.
(15)* Nine months after entry into force of this Regulation.
(16)* 24 months after entry into force of this Regulation.
(17)* Entry into force of this Regulation.


Implementation of the bilateral safeguard clause and the stabilisation mechanism for bananas of the Trade Agreement between the EU and Colombia and Peru ***I
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Amendments adopted by the European Parliament on 13 September 2012 on the proposal for a regulation of the European Parliament and of the Council implementing the bilateral safeguard clause and the stabilisation mechanism for bananas of the Trade Agreement between the European Union and Colombia and Peru (COM(2011)0600 – C7-0307/2011 – 2011/0262(COD))(1)
P7_TA(2012)0347A7-0249/2012

(Ordinary legislative procedure: first reading)

Text proposed by the Commission   Amendment
Amendment 1
Proposal for a regulation
Recital 3 a (new)
(3a)  It is necessary to create appropriate safety mechanisms to prevent serious harm to Union banana growing, a sector which is of great importance to the end agricultural production of many of the outermost regions. The limited ability of these regions to diversify, owing to their natural characteristics, makes the banana sector particularly vulnerable. It is therefore essential to create effective mechanisms to address preferential imports from third countries, in order to guarantee that Union banana production, which is a crucial employment sector especially in the outermost regions, is maintained under the best possible conditions.
Amendment 2
Proposal for a regulation
Recital 4 a (new)
(4a)  Close monitoring of banana imports will facilitate any timely decision concerning activation of the stabilisation mechanism for bananas, the launch of an investigation or the imposition of safeguard measures. The Commission should, therefore, step up regular monitoring of imports in the banana sector from the date of application of the Agreement.
Amendment 3
Proposal for a regulation
Recital 5
(5)  Safeguard measures should be considered only if the product in question is imported into the Union in such increased quantities, in absolute terms or relative to Union production, and under such conditions as to cause, or threaten to cause, serious injury to Union producers of like or directly competitive products as laid down in Article 48 of the Agreement.
(5)  Safeguard measures should be considered only if the product in question is imported into the Union in such increased quantities, in absolute terms or relative to Union production, and under such conditions as to cause, or threaten to cause, serious injury to Union producers of like or directly competitive products as laid down in Article 48 of the Agreement. Pursuant to Article 349 of the Treaty on the Functioning of the European Union and with regard to the products and economic sectors of the outermost regions, safeguard measures should be introduced as soon as imports into the Union of the product in question cause or threaten to cause injury to producers of like or directly competitive products in the outermost regions of the Union.
Amendment 4
Proposal for a regulation
Recital 5 a (new)
(5a)  Serious injury or the threat of serious injury to Union producers may also be caused by the non-fulfilment of specific obligations under Title IX on ’Trade and Sustainable Development’ of the Agreement – particularly in respect of the social and environmental standards laid down therein.
Amendment 5
Proposal for a regulation
Recital 6
(6)  Safeguard measures should take one of the forms referred to in Article 50 of the Agreement.
(6)  Safeguard measures should take one of the forms referred to in Article 50 of the Agreement. Specific safeguard measures should be provided for when there is a threat to the products or economic sectors of the outermost regions, pursuant to Article 349 of the Treaty on the Functioning of the European Union.
Amendment 6
Proposal for a regulation
Recital 7 a (new)
(7a)  The Commission should submit a report once a year on the implementation of the Agreement and the application of the safeguard measures and the banana stabilisation mechanism, which should include up-to-date and reliable statistics on imports from Colombia and Peru and an assessment of their impact on market prices, employment, working conditions in the Union and the evolution of the Union's production sector, paying special attention to small-size producers and cooperatives. The Commission should do its utmost to include an analysis of the impact of the Agreement and this Regulation on organic production and consumption in the Union and Fair-Trade flows between all parties to the Agreement.
Amendment 7
Proposal for a regulation
Recital 7 b (new)
(7b)  The extraordinary challenges in Colombia and Peru as regards human, social, labour and environmental rights in connection with products from Colombia and Peru demand a close dialogue between the Commission and EU civil society organisations.
Amendment 8
Proposal for a regulation
Recital 8
(8)  There should be detailed provisions on the initiation of proceedings. The Commission should receive information including available evidence from the Member States of any trends in imports which might call for the application of safeguard measures.
(8)  There should be detailed provisions on the initiation of proceedings. The Commission should receive information including available evidence from the Member States and interested parties and request from the sectors involved, information of any trends in imports which might call for the application of safeguard measures.
Amendment 9
Proposal for a regulation
Recital 8 a (new)
(8a)  In the event that the European Parliament adopts a recommendation to initiate a safeguard investigation, the Commission will carefully examine whether the conditions under the Regulation for ex-officio initiation are fulfilled. In the event that the Commission considers that the conditions are not fulfilled, it will present a report to the responsible committee of the European Parliament including an explanation of all the factors relevant to the initiation of such an investigation.
Amendment 10
Proposal for a regulation
Recital 10 a (new)
(10a)  The tasks of following up and reviewing the Agreement and, if necessary, imposing safeguard measures should be carried out in the most transparent manner possible and with the involvement of civil society. To that end, Union labour and environment or sustainable development committees need to be included at every stage of the process.
Amendment 11
Proposal for a regulation
Recital 10 b (new)
(10b)  In some cases, an increase of imports concentrated in one or several of the Union's outermost regions may cause or threaten to cause serious deterioration in their economic situation. In the event that there is an increase of imports concentrated in one or several of the Union's outermost regions, the Commission may introduce prior surveillance measures.
Amendment 12
Proposal for a regulation
Recital 14
(14)  Safeguard measures should be applied only to the extent, and for such time, as may be necessary to prevent serious injury and to facilitate adjustment. The maximum duration of safeguard measures should be determined and specific provisions regarding extension and review of such measures should be laid down, as referred to in Article 52 of the Agreement.
(14)  Safeguard measures should be applied only to the extent, and for such time, as may be necessary to prevent serious injury and to facilitate adjustment. The maximum duration of safeguard measures should be determined and specific provisions regarding extension and review of such measures should be laid down, as referred to in Article 52 of the Agreement. Specific provisions should apply with regard to safeguard measures triggered to protect produce and economic sectors in the outermost regions, in accordance with Article 349 of the Treaty on the Functioning of the European Union.
Amendment 13
Proposal for a regulation
Recital 14 a (new)
(14a)  Close monitoring should facilitate any timely decision concerning the possible initiation of an investigation or the imposition of measures. Therefore the Commission should regularly monitor imports and exports in sensitive sectors, such as bananas, from the date of application of the Agreement.
Amendment 14
Proposal for a regulation
Recital 14 b (new)
(14b)  The importance of complying with the international labour standards drawn up and supervised by the International Labour Organisation should be stressed. Defending decent work for all should be an absolute priority and bananas imported from Colombia or Peru should be produced under decent social and environmental conditions and for a fair wage to ensure that Union producers are not the victims of dumping, a disadvantage they would not be in a position to compensate for and which would permanently damage their competitiveness in the global banana market.
Amendment 15
Proposal for a regulation
Recital 16 a (new)
(16a)  The Commission should make diligent and effective use of the Stabilisation Mechanism for Bananas in order to avoid a threat of serious deterioration or a serious deterioration for producers in the outermost regions in the Union and, from January 2020, use existing instruments such as the safeguard clause or, if necessary, think about developing new instruments which, in the event of serious market disruption, will make it possible to preserve the competitiveness of production sectors in the Union and particularly in the outermost regions.
Amendment 16
Proposal for a regulation
Article 1 – point e a (new)
(ea) ’serious deterioration’ means significant disturbances in a sector or industry; ’threat of serious deterioration’ means significant disturbances that are clearly imminent.
Amendment 17
Proposal for a regulation
Article 2 a (new)
Article 2a

Monitoring

1.  The Commission shall monitor the evolution of import and export statistics of Colombian and Peruvian products, in particular in sensitive sectors including bananas. For this purpose, it shall cooperate and exchange data on a regular basis with Member States and the Union industry and all interested parties.
2.  Upon a duly justified request by the industries concerned, the Commission may consider extending the scope of the monitoring to other sectors.
3.  The Commission shall present an annual monitoring report to the European Parliament and the Council on updated statistics on imports from Colombia and Peru of products in the sensitive sectors and those sectors to which monitoring has been extended, including bananas.
4.  In its monitoring report, the Commission shall do its utmost to include the employment rates and working conditions for banana producers in Colombia and Peru in order to avoid all forms of dumping.
Amendment 18
Proposal for a regulation
Article 2 b (new)
Article 2b

Dialogue on the implementation and impact of the Agreement

The Commission shall establish a systematic dialogue with civil society organisations as regards the implementation and impact of the Agreement.

Amendment 19
Proposal for a regulation
Article 3 – paragraph 1
1.  An investigation shall be initiated upon request by a Member State, by any legal person or any association not having legal personality, acting on behalf of the Union industry, or on the Commission's own initiative if it is apparent to the Commission that there is sufficient prima facie evidence, as determined on the basis of factors referred to in Article 4(5), to justify such initiation.
1.  An investigation shall be initiated upon request by a Member State, by any legal person or any association not having legal personality, acting on behalf of the Union industry, by the European Parliament or on the Commission's own initiative if it is apparent to the Commission that there is sufficient prima facie evidence, as determined on the basis of factors referred to in Article 4(5), to justify such initiation.
Amendment 20
Proposal for a regulation
Article 3 – paragraph 3
3.  An investigation may also be initiated in the event that there is a surge of imports concentrated in one or several Member States, provided that there is sufficient prima facie evidence that the conditions for initiation are met, as determined on the basis of factors referred to in Article 4(5).
3.  An investigation may also be initiated in the event that there is a surge of imports concentrated in one or several Member States or outermost regions, provided that there is sufficient prima facie evidence that the conditions for initiation are met, as determined on the basis of factors referred to in Article 4(5).
Amendment 21
Proposal for a regulation
Article 4 – paragraph 5
5.  In the investigation, the Commission shall evaluate all relevant factors of an objective and quantifiable nature having a bearing on the situation of the Union industry, in particular, the rate and amount of the increase in imports of the product concerned in absolute and relative terms, the share of the domestic market taken by increased imports and changes in the level of sales, production, productivity, capacity utilisation, profits and losses, and employment. This list is not exhaustive and other relevant factors may also be taken into consideration by the Commission for its determination of the existence of serious injury or threat of serious injury, such as stocks, prices, return on capital employed, cash flow, and other factors which are causing or may have caused serious injury, or threaten to cause serious injury to the Union industry.
5.  In the investigation, the Commission shall evaluate all relevant factors of an objective and quantifiable nature having a bearing on the situation of the Union industry, in particular, the rate and amount of the increase in imports of the product concerned in absolute and relative terms, the share of the domestic market taken by increased imports and changes in the level of sales, production, productivity, capacity utilisation, profits and losses, and employment and working conditions. This list is not exhaustive and other relevant factors may also be taken into consideration by the Commission for its determination of the existence of serious injury or threat of serious injury, such as stocks, prices, return on capital employed, cash flow, effects on employment and other factors which are causing or may have caused serious injury, or threaten to cause serious injury to the Union industry.
Amendment 22
Proposal for a regulation
Article 4 – paragraph 5 a (new)
5a.  Moreover, in the investigation, the Commission shall evaluate, the observance by Colombia and Peru of the social and environmental standards laid down in Title IX of the Agreement and any consequences on prices or unfair competitive advantages potentially leading to serious injury or the threat of serious injury to producers or specific sectors of the economy in the Union.
Amendment 23
Proposal for a regulation
Article 9 – paragraph 4
4.  Any extension pursuant to paragraph 3 shall be preceded by an investigation upon a request by a Member State, by any legal person or any association not having legal personality, acting on behalf of the Union industry, or on the Commission's own initiative if there is sufficient prima facie evidence that the conditions laid down in paragraph 3 are met, on the basis of factors referred to in Article 4(5).
4.  Any extension pursuant to paragraph 3 shall be preceded by an investigation upon a request by a Member State, by any legal person or any association not having legal personality, acting on behalf of the Union industry, by the European Parliament or on the Commission's own initiative if there is sufficient prima facie evidence that the conditions laid down in paragraph 3 are met, on the basis of factors referred to in Article 4(5).
Amendment 24
Proposal for a regulation
Article 11 a (new)
Article 11a

Report

1.  The Commission shall present an annual report on the application and implementation of the Agreement and of this Regulation to the European Parliament. The report shall include information about the application of provisional and definitive measures, prior surveillance measures, regional surveillance and safeguard measures, the termination of investigations without measures, and the activities of the various bodies responsible for monitoring the implementation of the Agreement and fulfilment of the obligations arising therefrom, including information received from interested parties.
2.  The report shall include up-to- date statistics on banana imports from Colombia and Peru and their direct and indirect impact on the development of employment and working conditions in the Union production sector.
3.  Special sections of the report shall assess the fulfilment of obligations under Title IX of the Agreement, and action taken in that respect by Colombia and Peru under their internal mechanisms and the results of the dialogue with civil society organisations as laid down in Article 282 of the Agreement.
4.  The report shall also present a summary of the statistics and the evolution of trade with Colombia and Peru.
5.  The European Parliament may, within one month from the Commission presenting the report, invite the Commission to an ad hoc meeting of its responsible committee to present and explain any issues related to the implementation of this Regulation.
Amendment 25
Proposal for a regulation
Article 12 – paragraph 4 a (new)
4a.  Where the opinion of the committee is to be obtained by written procedure, that procedure shall be terminated without result when, within the time-limit for delivery of the opinion, the chair of the committee so decides or a majority of committee members so request.
Amendment 26
Proposal for a regulation
Article 12 a (new)
CHAPTER I A

Article 12a

The applicable provision for the purposes of adopting the necessary implementing rules for the application of the rules contained in Appendix 2A of the Annex II to the Trade Agreement between the European Union and its Member States, of the one part, and Colombia and Peru, of the other part ’Concerning the Concept of ’Originating Products’ and Methods of Administrative Co-operation’ and Appendix 2 of Annex I ’Elimination of customs duties’ of the Agreement is Article 247a of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code.

Amendment 27
Proposal for a regulation
Article 13 – paragraph 1 a (new)
1a.  The application of the stabilisation mechanism for bananas shall under no circumstances prevent the activation of measures included in the bilateral safeguard clause.
Amendment 28
Proposal for a regulation
Article 13 – paragraph 2
2.  A separate annual trigger import volume is set for imports of products mentioned in paragraph 1, as indicated in the third and fourth columns of the table in the Annex to this Regulation. Once the trigger volume for either Colombia or Peru is met during the corresponding calendar year, the Commission may, in accordance with the examination procedure referred to in Article 12(3), temporarily suspend the preferential customs duty applied to products of the corresponding origin during that same year for a period of time not exceeding three months, and not going beyond the end of the calendar year.
2.  A separate annual trigger import volume is set for imports of products mentioned in paragraph 1, as indicated in the third and fourth columns of the table in the Annex to this Regulation. Once the trigger volume for either Colombia or Peru is met during the corresponding calendar year, the Commission shall, in accordance with the examination procedure referred to in Article 12(3), temporarily suspend the preferential customs duty applied to products of the corresponding origin during that same year for a period of time not exceeding three months, and not going beyond the end of the calendar year. Only reasons of force majeure shall prevent the suspension from being imposed.
Amendment 29
Proposal for a regulation
Article 13 – paragraph 5 a (new)
5a.  The Commission shall closely monitor the evolution of statistics for banana imports from Colombia and Peru. For this purpose, the Commission shall cooperate and exchange information on a regular basis with the Member States and interested parties.
Upon a duly reasoned request from a Member State, the Union industry, the European Parliament or any interested party, the Commission shall pay particular attention to any noticeable increase in banana imports from Colombia and Peru and, if appropriate under the terms of Article 5, shall introduce prior surveillance measures.

Amendment 30
Proposal for a regulation
Article 13 – paragraph 5 b (new)
5b.  Prior surveillance measures shall be adopted by the Commission in accordance with the advisory procedure referred to in Article 12(2) when the trigger volume for the mechanism is reached during the corresponding calendar year.
Amendment 31
Proposal for a regulation
Article 13 – paragraph 5 c (new)
5c.  The European Parliament may invite the Commission, within one month of the publication of the latter's report, to an ad hoc meeting of its responsible committee to present and explain any issues related to the implementation of the Agreement which affect the banana sector.

(1) The matter was referred back to the committee responsible for reconsideration pursuant to Rule 57(2), second subparagraph (A7-0249/2012).


Implementation of the bilateral safeguard clause and the stabilisation mechanism for bananas of the Association Agreement between the EU and Central America ***I
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Amendments adopted by the European Parliament on 13 September 2012 on the proposal for a regulation of the European Parliament and of the Council implementing the bilateral safeguard clause and the stabilisation mechanism for bananas of the Agreement establishing an Association between the European Union and its Member States on the one hand, and Central America on the other (COM(2011)0599 – C7-0306/2011 – 2011/0263(COD))(1)
P7_TA(2012)0348A7-0237/2012

(Ordinary legislative procedure: first reading)

Text proposed by the Commission   Amendment
Amendment 1
Proposal for a regulation
Recital 3
(3)  It is necessary to lay down the procedures for applying certain provisions of the Agreement which concern the bilateral safeguard clause and for applying the Stabilisation Mechanism for Bananas that has been agreed with Central America.
(3)  It is necessary to lay down the most appropriate procedures to guarantee the effective application of certain provisions of the Agreement which concern the bilateral safeguard clause and for applying the Stabilisation Mechanism for Bananas that has been agreed with Central America.
Amendment 2
Proposal for a regulation
Recital 3 a (new)
(3a)  It is necessary to create appropriate safeguard mechanisms to prevent serious harm to Union banana growing, a sector which is of great importance to the end agricultural production of many of the outermost regions. The limited ability of these regions to diversify, owing to their natural characteristics, makes the banana sector particularly vulnerable. It is therefore essential to create effective mechanisms to address preferential imports from third countries, in order to guarantee that Union banana production is maintained under the best possible conditions, as it is a crucial employment sector in certain areas, especially in the outermost regions.
Amendment 3
Proposal for a regulation
Recital 4 a (new)
(4a)  Serious injury or the threat of serious injury to Union producers may also be caused by the non-fulfilment of specific obligations under Title VIII on ’Trade and Sustainable Development’ of Part IV of the Agreement – particularly in respect of the labour and environmental standards laid down therein – thus necessitating the imposition of safeguard measures.
Amendment 4
Proposal for a regulation
Recital 5
(5)  Safeguard measures should be considered only if the product in question is imported into the Union in such increased quantities, in absolute terms or relative to Union production, and under such conditions as to cause, or threaten to cause, serious injury to Union producers of like or directly competitive products as laid down in Article 104 of the Agreement.
(5)  Safeguard measures should be considered only if the product in question is imported into the Union in such increased quantities, in absolute terms or relative to Union production, and under such conditions as to cause, or threaten to cause, serious injury to Union producers of like or directly competitive products as laid down in Article 104 of the Agreement. Pursuant to Article 349 of the Treaty on the Functioning of the European Union and with regard to the products and economic sectors of the outermost regions, safeguard measures should be introduced as soon as imports into the Union of the product in question cause or threaten to cause injury to producers of like or directly competitive products in the outermost regions of the Union.
Amendment 5
Proposal for a regulation
Recital 6
(6)  Safeguard measures should take one of the forms referred to in Article 104(2) of the Agreement.
(6)  Safeguard measures should take one of the forms referred to in Article 104(2) of the Agreement. Specific safeguard measures should be provided for when there is a threat to the products or economic sectors of the outermost regions, pursuant to Article 349 of the Treaty on the Functioning of the European Union.
Amendment 6
Proposal for a regulation
Recital 7
(7)  The tasks of carrying out investigations and, if necessary, imposing safeguard measures should be carried out in the most transparent manner possible.
(7)  The tasks of following up and reviewing the Agreement and carrying out investigations and, if necessary, imposing safeguard measures should be carried out in the most transparent manner possible.
Amendment 7
Proposal for a regulation
Recital 8
(8)  There should be detailed provisions on the initiation of proceedings. The Commission should receive information including available evidence from the Member States of any trends in imports which might call for the application of safeguard measures.
(8)  There should be detailed provisions on the initiation of proceedings. The Commission should receive information including available evidence from the Member States and interested parties of any trends in imports which might call for the application of safeguard measures.
Amendment 8
Proposal for a regulation
Recital 8 a (new)
(8a)  In the event that the European Parliament adopts a recommendation to initiate a safeguard investigation, the Commission will carefully examine whether the conditions under the Regulation for ex-officio initiation are fulfilled. In the event that the Commission considers that the conditions are not fulfilled, it will present a report to the responsible committee of the European Parliament including an explanation of all the factors relevant to the initiation of such an investigation.
Amendment 9
Proposal for a regulation
Recital 10 a (new)
(10a)  In some cases, an increase of imports concentrated in one or several of the Union's outermost regions or Member States may cause or threaten to cause serious injury or serious deterioration in their economic situation. In the event that there is an increase of imports concentrated in one or several of the Union's outermost regions or Member States, the Commission may introduce prior surveillance measures.
Amendment 10
Proposal for a regulation
Recital 12
(12)  It is also necessary, pursuant to 112 of the Agreement, to set time limits for the initiation of investigations and for determinations as to whether or not measures are appropriate, with a view to ensuring that such determinations are made quickly, in order to increase legal certainty for the economic operators concerned.
(12)  It is also necessary, pursuant to Article 112 of the Agreement, to set time limits for the initiation of investigations and for determinations as to whether or not measures are appropriate, with a view to ensuring that such determinations are made quickly, in order to increase legal certainty for the economic operators concerned and to ensure that the measures are effective.
Amendment 11
Proposal for a regulation
Recital 14
(14)  Safeguard measures should be applied only to the extent, and for such time, as may be necessary to prevent serious injury and to facilitate adjustment. The maximum duration of safeguard measures should be determined and specific provisions regarding extension and review of such measures should be laid down, as referred to in Article 105 of the Agreement.
(14)  Safeguard measures should be applied only to the extent, and for such time, as may be necessary to prevent serious injury and to facilitate adjustment. The maximum duration of safeguard measures should be determined and specific provisions regarding extension and review of such measures should be laid down, as referred to in Article 105 of the Agreement. Specific provisions should apply with regard to safeguard measures triggered to protect produce and economic sectors in the outermost regions, in accordance with Article 349 of the Treaty on the Functioning of the European Union.
Amendment 12
Proposal for a regulation
Recital 14 a (new)
(14a)  Close monitoring will facilitate any timely decision concerning the possible initiation of an investigation or the imposition of measures. Therefore the Commission should regularly monitor imports and exports in sensitive sectors, including bananas, from the date of application of the Agreement.
Amendment 13
Proposal for a regulation
Recital 14 b (new)
(14b)  The importance of adhering to the international labour standards drawn up and supervised by the International Labour Organisation should be stressed. Defending decent work for all should be an absolute priority and bananas imported from Central America should be produced under decent social and environmental conditions and for a fair wage to ensure Union producers are not the victims of dumping, a disadvantage they would not be in a position to compensate for and which would permanently damage their competitiveness in the global banana market.
Amendment 14
Proposal for a regulation
Recital 16 a (new)
(16a)  The Commission should submit a report once a year on the implementation of the Agreement and on the application of the safeguard measures and the banana stabilisation mechanism, which should include up-to-date and reliable statistics on imports from Central America and an assessment of their impact on market prices, employment, working conditions in the Union and the evolution of the Union's production sector, paying special attention to small-size producers and cooperatives. The Commission should do its utmost to include an analysis of the impact of the Agreement and this Regulation on organic production and consumption in the Union and Fair-Trade flows between all parties to the Agreement.
Amendment 15
Proposal for a regulation
Recital 16 b (new)
(16b)  The Commission should make diligent and effective use of the Stabilisation Mechanism for Bananas in order to avoid a threat of serious deterioration or a serious deterioration for producers in the outermost regions in the Union and, from January 2020, use existing instruments such as the safeguard clause or, if necessary, think about developing new instruments which, in the event of serious market disruption, will make it possible to preserve the competitiveness of production sectors in the Union and particularly in the outermost regions.
Amendment 16
Proposal for a regulation
Article 1 - point b
(b) ’interested parties’ means parties affected by the imports of the product in question;
(b) ’interested parties’ means parties affected by the imports of the product in question, including civil society organisations, NGOs and workers’ organisations;
Amendment 17
Proposal for a regulation
Article 1 – point e a (new)
((ea) ’serious deterioration’ means significant disturbances in a sector or industry; ’threat of serious deterioration’ means significant disturbances that are clearly imminent.
Amendment 18
Proposal for a regulation
Article 2 a (new)
Article 2a

Monitoring

1.  The Commission shall monitor the evolution of import and export statistics of Central American products, in particular in sensitive sectors including bananas. For this purpose, it shall cooperate and exchange data on a regular basis with Member States and the Union industry and all interested parties.
2.  Upon a duly justified request by the industries concerned, the Commission may consider extending the scope of the monitoring to other sectors.
3.  The Commission shall present an annual monitoring report to the European Parliament and the Council on updated statistics on imports from Central America of products in the sensitive sectors and those sectors to which monitoring has been extended, including bananas.
4.  In its monitoring report, the Commission shall do its utmost to include the employment rates and working conditions for banana producers in Central America to avoid all forms of dumping.
Amendment 19
Proposal for a regulation
Article 3 – paragraph 1
1.  An investigation shall be initiated upon request by a Member State, by any legal person or any association not having legal personality, acting on behalf of the Union industry, or on the Commission's own initiative if it is apparent to the Commission that there is sufficient prima facie evidence, as determined on the basis of factors referred to in Article 4(5), to justify such initiation.
1.  An investigation shall be initiated upon request by a Member State, by any legal person or any association not having legal personality, acting on behalf of the Union industry, by the European Parliament, or on the Commission's own initiative if it is apparent to the Commission that there is sufficient prima facie evidence, as determined on the basis of factors referred to in Article 4(5), to justify such initiation.
When appropriate, the European Parliament may consult and source analysis from independent bodies, such as trade unions, the ILO, academics or human rights organisations.

Amendment 20
Proposal for a regulation
Article 3 – paragraph 2
2.  The request to initiate an investigation shall contain evidence that the conditions for imposing the safeguard measure set out in Article 2(1) are met. The request shall generally contain the following information: the rate and amount of the increase in imports of the product concerned in absolute and relative terms, the share of the domestic market taken by increased imports and changes in the level of sales, production, productivity, capacity utilisation, profits and losses, and employment.
2.  The request to initiate an investigation shall contain evidence that the conditions for imposing the safeguard measure set out in Article 2(1) are met. The request shall generally contain the following information: the rate and amount of the increase in imports of the product concerned in absolute and relative terms, the share of the domestic market taken by increased imports and changes in the level of sales, production, productivity, capacity utilisation, profits and losses, employment and working conditions.
Amendment 21
Proposal for a regulation
Article 3 – paragraph 3
3.  An investigation may also be initiated in the event that there is a surge of imports concentrated in one or several Member States, provided that there is sufficient prima facie evidence that the conditions for initiation are met, as determined on the basis of factors referred to in Article 4(5).
3.  An investigation may also be initiated in the event that there is a surge of imports concentrated in one or several Member States or outermost regions, provided that there is sufficient prima facie evidence that the conditions for initiation are met, as determined on the basis of factors referred to in Article 4(5).
Amendment 22
Proposal for a regulation
Article 4 – paragraph 4
4.  The Commission shall seek all information it considers necessary to make a determination with regard to the conditions set out in Article 2(1), and, where it considers it appropriate, endeavour to verify that information.
4.  The Commission shall seek all information it considers necessary to make a determination with regard to the conditions set out in Article 2(1) and endeavour to verify that information.
Amendment 23
Proposal for a regulation
Article 4 – paragraph 5
5.  In the investigation the Commission shall evaluate all relevant factors of an objective and quantifiable nature having a bearing on the situation of the Union industry, in particular, the rate and amount of the increase in imports of the product concerned in absolute and relative terms, the share of the domestic market taken by increased imports and changes in the level of sales, production, productivity, capacity utilisation, profits and losses, and employment. This list is not exhaustive and other relevant factors may also be taken into consideration by the Commission for its determination of the existence of serious injury or threat of serious injury, such as stocks, prices, return on capital employed, cash flow, and other factors which are causing or may have caused serious injury, or threaten to cause serious injury to the Union industry.
5.  In the investigation the Commission shall evaluate all relevant factors of an objective and quantifiable nature having a bearing on the situation of the Union industry, in particular, the rate and amount of the increase in imports of the product concerned in absolute and relative terms, the share of the domestic market taken by increased imports and changes in the level of sales, production, productivity, capacity utilisation, profits and losses, and employment. This list is not exhaustive and other relevant factors may also be taken into consideration by the Commission for its determination of the existence of serious injury or threat of serious injury, such as stocks, prices, return on capital employed, cash flow, and other factors which are causing or may have caused serious injury, or threaten to cause serious injury to the Union industry, such as meeting the trigger volumes described within the framework of the stabilisation mechanism for bananas included in Chapter II of this Regulation.
Amendment 24
Proposal for a regulation
Article 4 – paragraph 7
7.  The Commission shall ensure that all data and statistics which are used for the investigation are available, comprehensible, transparent and verifiable.
7.  The Commission shall ensure that all data and statistics which are used for the investigation are available, comprehensible, transparent, up-to-date, reliable and verifiable.
Amendment 25
Proposal for a regulation
Article 5 – paragraph 1 a (new)
1a.  In the event that there is a surge of imports of products falling into sensitive sectors concentrated in one or several Member States or outermost regions, the Commission may introduce prior surveillance measures.
Amendment 26
Proposal for a regulation
Article 9 – paragraph 4
4.  Any extension pursuant to paragraph 3 shall be preceded by an investigation upon a request by a Member State, by any legal person or any association not having legal personality, acting on behalf of the Union industry, or on the Commission's own initiative if there is sufficient prima facie evidence that the conditions laid down in paragraph 3 are met, on the basis of factors referred to in Article 4(5).
4.  Any extension pursuant to paragraph 3 shall be preceded by an investigation upon a request by a Member State, by any legal person or any association not having legal personality, acting on behalf of the Union industry, by interested parties, by the European Parliament, or on the Commission's own initiative if there is sufficient prima facie evidence that the conditions laid down in paragraph 3 are met, on the basis of factors referred to in Article 4(5).
Amendment 27
Proposal for a regulation
Article 11 a (new)
Article 11a

Report

1.  The Commission shall present an annual report on the application and implementation of the Agreement and of this Regulation to the European Parliament. The report shall include information about the application of provisional and definitive measures, prior surveillance measures, regional surveillance and safeguard measures, the termination of investigations without measures, and the activities of the various bodies responsible for monitoring the implementation of the Agreement and fulfilment of the obligations arising therefrom, including information received from interested parties.
2.  Special sections of the report shall deal with the fulfilment of obligations under Title VIII ’Trade and Sustainable development’ of Part IV of the Agreement and with action taken in that respect by Central America under its internal mechanisms and by the Civil Society Dialogue Forum.
3.  The report shall also present a summary of the statistics and the evolution of trade with Central America.
4.  The report shall include up-to-date and reliable statistics on banana imports from Central America and their direct and indirect impact on the development of employment and working conditions in the Union production sector.
5.  The European Parliament may, within one month from the Commission presenting the report, invite the Commission to an ad hoc meeting of its responsible committee to present and explain any issues related to the implementation of the Agreement and this Regulation.
6.  No later than three months after presenting the report to the European Parliament, the Commission shall make the report public.
Amendment 28
Proposal for a regulation
Article 12 – paragraph 4 a (new)
4a.  Where the opinion of the committee is to be obtained by written procedure, that procedure shall be terminated without result when, within the time-limit for delivery of the opinion, the chair of the committee so decides or a majority of committee members so request.
Amendment 29
Proposal for a regulation
Chapter I a – Article 12 a (new)
Chapter Ia

Article 12a

12 a. The applicable provision for the purposes of adopting the necessary implementing rules for the application of the rules contained in Appendix 2A of Annex II ’Concerning the Concept of ’Originating Products’ and Methods of Administrative Co-operation’ and Appendix 2 of Annex I ’Elimination of customs duties’ of the Agreement is Article 247a of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code.

Amendment 30
Proposal for a regulation
Article 13 – paragraph 1 a (new)
1a.  The application of the stabilisation mechanism for bananas shall under no circumstances prevent the activation of measures included in the bilateral safeguard clause.
Amendments 31 and 32
Proposal for a regulation
Article 13 – paragraph 2
2.  A separate annual trigger import volume is set for imports from Central American country for products mentioned in paragraph 1 as indicated in the table in the Annex to this Regulation. The importation of the products mentioned in paragraph 1 at the preferential customs duty rate shall, in addition to the proof of origin established under Annex III (Definition of the concept of ’originating products’ and methods of administrative co-operation) of the Agreement with Central America, be subject to the presentation of an export certificate issued by the competent authority of the Republic of the Central American country from which the products are exported. Once the trigger volume is met during the corresponding calendar year, the Commission may, in accordance with the examination procedure referred to in Article 12(3), temporarily suspend the preferential customs duty during that same year for a period of time not exceeding three months, and not going beyond the end of the calendar year.
2.  A separate annual trigger import volume is set for imports from Central American country for products mentioned in paragraph 1 as indicated in the table in the Annex to this Regulation. The importation of the products mentioned in paragraph 1 at the preferential customs duty rate shall, in addition to the proof of origin established under Annex III (Definition of the concept of ’originating products’ and methods of administrative co-operation) of the Agreement with Central America, be subject to the presentation of an export certificate issued by the competent authority of the Republic of the Central American country from which the products are exported. This requirement to present an export certificate should not, however, result in additional red tape, higher costs or other de facto trade restrictions affecting the exporter. Once the trigger volume is met during the corresponding calendar year, the Commission shall temporarily suspend the preferential customs duty during that same year for a period of time not exceeding three months, and not going beyond the end of the calendar year. Only reasons of force majeure shall prevent the suspension from being imposed.
Amendment 33
Proposal for a regulation
Article 13 – paragraph 5 a (new)
5a.  The Commission shall closely monitor the evolution of statistics for banana imports from Central America. Employment rates and working conditions, as well as organic production and consumption and Fair-Trade flows shall be part of the monitoring process. For this purpose, the Commission shall cooperate and exchange information on a regular basis with the Member States, the Union industries and interested parties.
Amendment 34
Proposal for a regulation
Article 13 – paragraph 5 b (new)
5b.  Upon a duly reasoned request from the European Parliament, a Member State, the Union industry, any interested party or on its own initiative, the Commission shall pay particular attention to any noticeable increase in banana imports from Central America and, if appropriate under the terms of Article 5, shall take prior surveillance measures.
Amendment 35
Proposal for a regulation
Article 13 – paragraph 5 c (new)
5c.  Prior surveillance measures shall be adopted by the Commission in accordance with the advisory procedure referred to in Article 12(2) when the trigger volume for the mechanism is reached during the corresponding calendar year.
Amendment 36
Proposal for a regulation
Article 13 – paragraph 5 d (new)
5d.  The European Parliament may invite the Commission, within one month of the publication of the latter's report, to an ad hoc meeting of Parliament's responsible committee to present and explain any issues related to implementation of the Agreement which affect the banana sector.

(1) The matter was referred back to the committee responsible for reconsideration pursuant to Rule 57(2), second subparagraph (A7-0237/2012).


Permitted uses of orphan works ***I
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Resolution
Text
European Parliament legislative resolution of 13 September 2012 on the proposal for a directive of the European Parliament and of the Council on certain permitted uses of orphan works (COM(2011)0289 – C7-0138/2011 – 2011/0136(COD))
P7_TA(2012)0349A7-0055/2012

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2011)0289),

–  having regard to Article 294(2) and Articles 53(1), 62 and 114 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7-0138/2011),

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to the opinion of the European Economic and Social Committee of 21 September 2011(1),

–  having regard to the undertaking given by the Council representative by letter of 14 June 2012 to approve Parliament's position, in accordance with Article 294(4) of the Treaty on the Functioning of the European Union,

–  having regard to Rule 55 of its Rules of Procedure,

–  having regard to the report of the Committee on Legal Affairs and the opinions of the Committee on the Internal Market and Consumer Protection, and the Committee on Culture and Education (A7-0055/2012),

1.  Adopts its position at first reading hereinafter set out;

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

3.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Position of the European Parliament adopted at first reading on 13 September 2012 with a view to the adoption of Directive 2012/.../EU of the European Parliament and of the Council on certain permitted uses of orphan works

P7_TC1-COD(2011)0136


(As an agreement was reached between Parliament and Council, Parliament's position corresponds to the final legislative act, Directive 2012/28/EU.)

(1) OJ C 376, 22.12.2011, p. 66.


Emergency autonomous trade preferences for Pakistan ***I
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Resolution
Text
European Parliament legislative resolution of 13 September 2012 on the proposal for a regulation of the European Parliament and of the Council introducing emergency autonomous trade preferences for Pakistan (COM(2010)0552 – C7-0322/2010 – 2010/0289(COD))
P7_TA(2012)0350A7-0069/2011

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2010)0552),

–  having regard to Article 294(2) and Article 207(2), of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7-0322/2010),

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to the undertaking given by the Council representative by letter of 18 July 2012 to approve Parliament's position, in accordance with Article 294(4) of the Treaty on the Functioning of the European Union,

–  having regard to Rule 55 of its Rules of Procedure,

–  having regard to the report of the Committee on International Trade and the opinion of the Committee on Foreign Affairs (A7-0069/2011),

1.  Adopts its position at first reading hereinafter set out(1);

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

3.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Position of the European Parliament adopted at first reading on 13 September 2012 with a view to the adoption of Regulation (EU) No .../2012 of the European Parliament and of the Council introducing emergency autonomous trade preferences for Pakistan

P7_TC1-COD(2010)0289


(As an agreement was reached between Parliament and Council, Parliament's position corresponds to the final legislative act, Regulation (EU) No 1029/2012.)

(1) This position replaces the amendments adopted on 10 May 2011 (Texts adopted, P7_TA(2011)0205).


Situation in Syria
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European Parliament resolution of 13 September 2012 on Syria (2012/2788(RSP))
P7_TA(2012)0351RC-B7-0425/2012

The European Parliament,

–  having regard to its previous resolutions on Syria,

–  having regard to the Foreign Affairs Council's conclusions on Syria of 23 July, 25 June, 14 May, 23 April and 23 March 2012; having regard to the European Council's conclusions on Syria of 29 June 2012,

–  having regard to the statements by the Vice-President of the Commission/High Representative of the Union for Foreign Affairs and Security Policy on Syria of 15 March, 14 and 27 April, 27 May, 3 and 18 June, 6, 8 and 20 July, 3, 4, 8 and 18 August, and 5 September 2012,

–  having regard to the statements by the Commissioner responsible for International Cooperation, Humanitarian Aid and Crisis Response on Syria of 17 and 31 July and 29 August 2012,

–  having regard to the three-day visit of the President of the International Committee of the Red Cross to Syria from 4 to 6 September 2012,

–  having regard to the decision taken on 17 August 2012 by United Nations Secretary-General Ban Ki-moon and League of Arab States Secretary-General Nabil El Araby to appoint Lakhdar Brahimi as the new Joint Special Representative for Syria,

–  having regard to Council Regulation (EU) No 509/2012 of 15 June 2012 amending Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, and the subsequent Council decisions enforcing these measures,

–  having regard to UN General Assembly resolution 66/253 of 3 August 2012 on the situation in the Syrian Arab Republic,

–  having regard to UN Human Rights Council resolutions 19/1 of 1 March 2012, S-19/1 of 1 June 2012 and 20/L.22 of 6 July 2012 on the human rights situation in Syria,

–  having regard to the report of the UN Independent International Commission of Inquiry on Syria of 15 August 2012,

–  having regard to the decision taken by the Organisation of Islamic Cooperation (OIC) on 13 August 2012 of to suspend Syria's membership,

–  having regard to the National Pact and the Common Political Vision for the Transition in Syria issued following the Syrian opposition conference held under the auspices of the League of Arab States in Cairo on 2-3 July 2012,

–  having regard to the outcome of the Action Group meeting in Geneva on 30 June 2012,

–  having regard to the Annan Plan and United Nations Security Council resolutions 2042, 2043 and 2059,

–  having regard to the conclusions and recommendations of ’The Day After project: Supporting a Democratic Transition in Syria’, published in August 2012,

–  having regard to the Universal Declaration of Human Rights of 1948,

–  having regard to the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child and the Optional Protocol thereto on the Involvement of Children in Armed Conflict, and the Convention on the Prevention and Punishment of the Crime of Genocide, to all of which Syria is a party,

–  having regard to Rule 110(2) and (4) of its Rules of Procedure,

A.  whereas, according to the UN, since the start of the violent crackdown on peaceful protesters in Syria in March 2011, nearly 20 000 people, most of them civilians, have been killed; whereas heavy violence, such as the use of heavy artillery and shelling against populated areas, and horrific killings by the Syrian army, security forces and the Shabiha, as well as by various opposition forces, have continuously increased; whereas there have been several massacres and mass targeted (point-blank) killings of men, women and children; whereas the use of torture, mass arrests and widespread destruction of populated areas has dramatically escalated over the last months; whereas cities and towns throughout Syria are being kept under siege and are being bombarded, inter alia by means of helicopters and fighter jets, by government-led forces; whereas through the increased militarisation of the conflict the situation is sliding into civil war;

B.  whereas any further militarisation of the situation in Syria would have a serious impact on its civilian population, which is already facing a rapidly deteriorating humanitarian situation, and would also continue to affect the wider region, in particular Jordan and Lebanon, in terms of security and stability, with unpredictable implications and consequences;

C.  whereas, according to UN estimates, an estimated 5 000 people were killed in August as a result of the ongoing fighting, which means that over 20 000 people have died since the start of the conflict; whereas, due to the intensification of the violence and the precarious security and humanitarian conditions in Syria, neighbouring countries, especially in the last weeks, are assisting a significantly escalating number of Syrian citizens seeking refuge, particularly in Turkey, Jordan and Lebanon; whereas 235 000 refugees from Syria have been registered or are awaiting registration with the UN High Commission for Refugees; whereas over 75 % of theses refugees are women and children; whereas tens of thousands of refugees are not registering; whereas more than 100 000 refugees are believed to have fled Syria across the borders of Jordan, Lebanon, Iraq and Turkey at an average rate of 500-2000 per day during August; whereas, according to UN estimates, more than 1.2 million people have been internally displaced within Syria and around 3 million are in need of urgent humanitarian assistance; whereas the Syrian regime has deliberately cut off access to food, water, electricity and medical supplies to entire communities, such as in Homs and, more recently, in Aleppo; whereas Turkey has asked the UN Security Council to consider setting up a safe zone for civilians guarded by neighbouring countries;

D.  whereas on 2 August 2012 Kofi Annan announced his resignation as UN-LAS Joint Special Envoy for Syria as a result of Syrian regime intransigence, increasing armed violence and the failure of a divided Security Council to rally forcefully behind his efforts to implement the six-point peace plan; whereas former Algerian Foreign Minister Lakhdar Brahimi has recently been appointed the new Joint Special Representative for Syria of the UN and the League of Arab States;

E.  whereas the Syrian regime has lost all credibility and legitimacy as a representative of the Syrian people;

F.  whereas vetoes by Russia and China have prevented the UN Security Council from adopting a resolution endorsing the outcome of the efforts of the Action Group for Syria and have prevented the introduction of the proposed measures to enforce compliance with the six-point Annan Plan under Article 41 of the UN Charter; whereas the international community has thus so far failed to unite and give an adequate response to the crisis in Syria;

G.  whereas President Bashar al-Assad and his authoritarian regime have no place in the future of Syria; whereas the President must step down to avoid any further escalation of the crisis and to allow a peaceful and democratic transition to take place in the country; whereas several former political and military leaders of the regime as well as ambassadors have defected to neighbouring countries and beyond;

H.  whereas a credible alternative is needed to the current regime; whereas this alternative should be inclusive and representative of the diversity of Syrian society and should fully respect the universal values of democracy, the rule of law, human rights and fundamental freedoms, with special regard for the rights of ethnic, cultural and religious minorities and of women; whereas the establishment of an inclusive and representative provisional government by opposition forces may contribute to this alternative;

I.  whereas the EU has imposed targeted sanctions on Syria in several rounds, and has further strengthened its arms embargo against Syria; whereas despite an EU embargo in force on weapons, munitions and other military equipments, as well as a ban on the export of monitoring technologies, several reported incidents involving arms shipments through EU waters and leaked details of business transactions between EU companies and various Syrian entities, groups and persons, covered by the EU's sanctions, have indicated the EU's internal incompetence to implement its own decisions and regulations;

J.  whereas various external actors and states, either directly or through regional channels and neighbouring countries, continue to actively support all the parties to the conflict, with financial, operational, logistical and tactical support and aid, including the supply of weapons, munitions and all other types of military equipment, the provision of logistical assistance, the provision of communication tools and all kinds of assistance that may be used for military purposes, highlighting the pan-regional nature of the conflict; whereas further militarisation of the conflict can only bring greater suffering to the Syrian people and the region as a whole;

K.  whereas the Commission announced on 7 September 2012 that an additional EUR 50 million in humanitarian assistance would be mobilised to support people in need of such assistance within Syria and those crossing the borders; whereas according to ECHO the EU has already provided EUR 142 million and the total EU assistance, including aid from Member States, amounts to about EUR 224 million;

L.  whereas Syrian opposition representatives have held several meetings over the past months with the aim of overcoming internal divergences and creating a united front, and issued a ’National Pact’ and a ’Common Political Vision for the Transition in Syria’, as well as the conclusions and recommendations of ’The Day After project: Supporting a Democratic Transition in Syria’; whereas, despite all efforts, internal divisions and tensions within this opposition persist;

M.  whereas, on 1 July 2012, the Action Group for Syria, meeting in Geneva, agreed on principles and guidelines for a Syrian-led transition which includes the establishment of a transitional government body exercising full executive powers;

1.  Reiterates its condemnation in the strongest possible terms of the ever increasing use of indiscriminate violence by President Assad's regime against the Syrian civilian population, in particular the targeted killing of children and women and mass executions in villages; expresses its deepest concern at the gravity of the human rights violations and possible crimes against humanity authorised and/or perpetrated by the Syrian authorities, the Syrian army, security forces and affiliated militias; condemns the summary extrajudicial executions and all other forms of human rights violations committed by groups and forces opposing the Assad regime;

2.  Applauds the efforts of neighbouring countries in hosting and providing humanitarian relief to refugees from Syria and calls for increased international support and assistance in this context; stresses the crucial importance of finding a sustainable response to the humanitarian crisis both within Syria and among refugees from Syria in neighbouring countries; urges neighbouring countries to continue to provide protection to refugees from Syria and displaced persons and to refrain, in line with their international obligations, from expelling and returning any such persons to Syria; calls on the EU to take appropriate responsible measures regarding the possible influx of refugees into its Members States; stresses the need to cooperate with the Red Cross; welcomes the EU's readiness to offer additional support, including financial resources, to help neighbouring countries, including Turkey, Lebanon and Jordan, to host the increasing number of refugees from Syria, and urges the EU and its Member States to step up their efforts to find alternative ways to deliver humanitarian assistance to the people of Syria, in spite all the obstacles and difficulties;

3.  Calls on the Syrian regime to allow the swift provision of humanitarian assistance and full access to humanitarian organisations and the international media Syria, and to facilitate the implementation of humanitarian pauses in order to allow the safe delivery of humanitarian aid; stresses again that international humanitarian law must be fully respected by all those involved in the crisis; stresses that medical attention should never be withheld from those who are injured and in need of help, and calls on all the parties involved to protect civilians, allow full and unimpeded access to food, water, electricity and refrain from using all forms of intimidation and violence against patients, doctors, medics and aid workers;

4.  Extends its condolences to the families of the victims; reiterates its solidarity with the Syrian people's struggle for freedom, dignity and democracy, and applauds their courage and determination, especially with regard to women;

5.  Calls on all armed actors to put an immediate end to violence in Syria; calls on the Syrian Government to withdraw the Syrian army from besieged towns and cities without delay, to immediately release all detained protesters, political prisoners, human rights defenders, bloggers and journalists;

6.  Deplores the fact that the UN Security Council has failed to act and has not agreed on a resolution to add more robust and effective pressure in order to end the violence in Syria; reiterates its call on UN Security Council members, in particular Russia and China, to uphold their responsibility to put an end to the violence and repression against the Syrian people, including by supporting forced compliance with UNSC resolutions 2042 and 2043; continues to support the efforts of the EU and its Member States in this regard; calls on the VP/HR to do her utmost to secure the adoption of a UNSC resolution, exerting effective diplomatic pressure on both Russia and China;

7.  Stresses that the EU should stand ready to adopt further measures and to continue to explore within the UNSC all options within the Responsibility to Protect (RtoP) framework, in close cooperation with the US, Turkey and the League of Arab States in order to assist the Syrian people and to halt the bloodshed;

8.  Supports calls by several opposition groups and the Turkish Government to establish safe havens along the Turkish-Syrian border, and possibly within Syria, as well as the creation of humanitarian corridors by the international community; calls on the VP/HR to intensify discussions with Turkey, the Arab League and the Syrian opposition on the establishment of these safe havens to take in Syrian refugees and allow those persecuted by the regime to find refuge and protection;

9.  Reiterates its call for President Assad and his regime to step aside immediately, so as to allow a peaceful, inclusive and democratic Syrian-led transition to take place as soon as possible;

10.  Calls on all parties to agree on (local) ceasefires as soon as possible, so as to allow a broader negotiated and meaningful ceasefire;

11.  Expresses its concern about further militarisation of the conflict and sectarian violence; notes the role of different regional actors, including the delivery of arms, and is concerned about the spill-over effects of the Syrian conflict in neighbouring countries; calls on the Council to consider the adoption of additional restrictive measures against external actors and groups involved in operations on the ground to actively support the Bashar al-Assad regime;

12.  Condemns the Syrian regime's expressed intention to use chemical weapons against ’external terrorist threats’, reminds President Assad of his government's obligations under the Geneva protocol on the non-use of chemical weapons and calls on the Syrian authorities to rigorously abide by their international obligations;

13.  Supports the EU's ongoing efforts to step up the pressure on President Assad's regime through restrictive measures, calls on the EU to consider broadening the scope of its restrictive measures to external entities or groups that undisputedly provide or facilitate crucial financial and operational support to the Syrian authorities;

14.  Welcomes the decision of the Islamic Summit Conference of 14-15 August 2012 to suspend the Syrian Arab Republic's membership of the Organisation of Islamic Cooperation and all its subsidiary organs, specialised and affiliated institutions;

15.  Welcomes the efforts made by Syrian opposition representatives to create a united front of opposition forces, as well as the recently issued ’National Pact’, ’Common Political Vision for the Transition in Syria’, and conclusions and recommendations of ’The Day After project: Supporting a Democratic Transition in Syria’; encourages the Syrian opposition to continue on this path with the aim of creating a credible alternative to the regime and urges the VP/HR and EU Member States to make every effort to unify the Syrian opposition; welcomes the strong support shown by Turkey; Lebanon and Jordan for the Syrian population; urges the VP/HR to make every effort to start discussions with the authorities of Turkey, Lebanon and Jordan, the Arab League and the Syrian opposition on preparing the peaceful transition for the post-Assad Syria;

16.  Reiterates its strong endorsement of the call by the UN Human Rights Commissioner for a referral by the UNSC of the situation in Syria to the ICC for a formal investigation; strongly commits itself to ensure that all those responsible for human rights violations and violations of international law will be identified and held accountable; strongly supports the work of the Independent International Commission of Inquiry on Syria, which is aimed at investigating all violations of international human rights and humanitarian law committed in the country so as to ensure that those responsible are held to account, and calls on EU Member States during the 21st session of the UNHRC to ensure that the Commission can continue its work with adequate reinforcements if necessary;

17.  Calls for a peaceful and genuine Syrian-led political transition to democracy which meets the legitimate demands of the Syrian people and is based on an inclusive dialogue involving all democratic forces and components within Syrian society, with a view to launching a process of deep democratic reform, that also takes account of the need to ensure national reconciliation and is committed to ensuring respect for the rights and freedoms of minorities including ethnic, religious, cultural and other minorities;

18.  Instructs its President to forward this resolution to the Council, the Commission, the Vice-President of the Commission/High Representative of the Union for Foreign Affairs and Security Policy, the governments and parliaments of the Member States, the Government and Parliament of the Russian Federation, the Government and Parliament of the People's Republic of China, the Government and Parliament of the Republic of Turkey, the Government and Consultative Assembly of the State of Qatar, the Government and House of Representatives of the United States of America, the Government of the Kingdom of Saudi Arabia, the Government and Parliament of the Hashemite Kingdom of Jordan, the Government and Parliament of the Republic of Lebanon, the Secretary-General of the United Nations, the Secretary-General of the League of Arab States and the Government and Parliament of the Syrian Arab Republic.


Political use of justice in Russia
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European Parliament resolution of 13 September 2012 on the political use of justice in Russia (2012/2789(RSP))
P7_TA(2012)0352RC-B7-0427/2012

The European Parliament,

–  having regard to its previous reports and resolutions on Russia, in particular its resolutions of 15 March 2012(1) on the outcome of the presidential elections in Russia, of 16 February 2012(2) on the upcoming presidential election in Russia, of 14 December 2011(3) on the State Duma elections and of 7 July 2011(4) on the preparations for the Russian State Duma elections in December 2011,

–  having regard to the ongoing negotiations for a new agreement providing a new comprehensive framework for EU-Russia relations, as well as to the ’Partnership for Modernisation’ initiated in 2010,

–  having regard to the International Covenant on Civil and Political Rights and to the Convention for the Protection of Human Rights and Fundamental Freedoms, which states that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law,

–   having regard to the Constitution of Russia, in particular Article 118 thereof, which states that justice in the Russian Federation shall be administered by courts alone, and Article 120 thereof, which provides that judges are independent and are subordinate only to the Russian Constitution and the federal law,

–  having regard to the Statement of 17 August 2012 by EU High Representative Catherine Ashton on the sentencing of ’Pussy Riot’ punk band members in Russia,

–  having regard to the request by the Russian Prosecutor-General to vote on early dismissal of the Just Russia Member of the Duma Gennady Gutkov on 12 September 2012,

–  having regard to Rule 110(2) and (4) of its Rules of Procedure,

A.  whereas the Russian Federation, as a full member of the Council of Europe and the Organisation for Security and Cooperation in Europe, has committed itself to the principles of democracy, the rule of law and respect for human rights; whereas because of several serious violations of the rule of law and the adoption of restrictive laws during the past months there are increasing concerns with regard to Russia's compliance with international and national obligations;

B.  whereas the European Union remains committed to further deepening and developing the relations between EU and Russia, which is shown by the Union's commitment to engage seriously in negotiating a new framework agreement for the further development of EU-Russia relations, and whereas the European Union and Russia have established deep and comprehensive relations, particularly in the energy, economic and business sectors, and have become mutually interdependent in the global economy;

C.  whereas the human rights situation in Russia has deteriorated drastically in the last few months and the Russian authorities have recently adopted a series of laws which contain ambiguous provisions and could be used to further restrict opposition and civil society actors and hinder freedom of expression and assembly; whereas such aspects should be addressed in due course as a priority issue, in particular during EU-Russia bilateral meetings and negotiations;

D.  whereas the deaths of Anna Politkovskaya, Natalia Estemirova, Anastasia Barburova, Stanislav Markelov and Sergei Magnitsky remain unaccounted for;

E.  whereas Mikhail Khordorkovsky and his business associate Platon Lebedev were given a guilty verdict for embezzlement by Moscow's Khamovnichesky district court on 30 December 2010; whereas the prosecution, the trial and the verdict were internationally portrayed as being politically motivated;

F.  whereas the case of Sergei Magnitsky is only one of several cases of abuse of power by the Russian law enforcement authorities, strongly violating the rule of law and leaving those guilty of causing his death still unpunished; whereas there are a multitude of other judicial cases where politically constructed reasons are being used to eliminate political competition and threaten civil society;

G.  whereas the sentencing of the members of the Russian punk group Pussy Riot to two years’ imprisonment for a protest performance against President Vladimir Putin in a Moscow Orthodox cathedral is disproportionate;

H.  whereas the Duma is scheduled to vote on 12 September 2012 to lift the mandate of Gennady Gudkov for business activities during his mandate without following the necessary democratic procedures; whereas, for the sake of the rule of law, parliamentary rules should apply equally and impartially to all members of the Duma; whereas other members of the Fair Russia faction such as Dimitri Gudkov and Ilya Ponomarev face similar accusations;

I.  whereas the new NGO legislation and the legislation on the right to freedom of assembly could be used to suppress civil society, stifle opposing political views and harass NGOs, democratic opposition and the media; whereas the Russian Parliament adopted a bill in July 2012 granting the status of ’foreign agent’ to Russian non-commercial organisations engaged in political activities and financed from abroad;

J.  whereas, contrary to the statements and pledges by President Putin and Prime Minister Medvedev, there is a growing pressure on the political freedoms of Russian citizens; whereas President Putin has declared the urgent need to overcome enormous corruption in Russia and has made a public commitment to strengthening the rule of law in Russia and raised concerns regarding the independence of Russia's judiciary and legal system;

1.  Notes that meaningful, constructive EU-Russia relations depend on the efforts to strengthen democracy, the rule of law and respect for fundamental rights; underlines the fact that the medium- and long-term political and economic stability and development of Russia are dependent on the prevalence of the rule of law and the emergence of true democratic choice;

2.  Takes the view that Russia, as a member of the Council of Europe and the Organisation for Security and Cooperation in Europe, should meet the obligations it has signed up to; points out that recent developments have moved in the opposite direction to the reforms necessary to improve democratic standards, the rule of law and the independence of the judiciary in Russia;

3.  Welcomes the Supreme Court decision of 25 July 2012 to review both the Khoderkovsky and the Lebedev cases in line with the recommendation of the Presidential Council on Human Rights of December 2011; notes the shortening of Lebedev's sentence by three years; calls for the continuation of a comprehensive review of these cases based on Russian international commitments to fair and transparent trials and the findings and recommendations of the Presidential Council on Human Rights to be fully respected and implemented with regard to the case of Mr Khodorkovsky;

4.  Calls on the Russian authorities to bring the perpetrators to justice in the murder cases of Anna Politkovskaya and Natalya Yestemirova, and urges them to conduct a credible and independent investigation of the Magnitstky and other cases, and to put an end to the omnipresent impunity and pervasive corruption in the country;

5.  Expresses its deep concern regarding other politically motivated trials, in particular the criminal prosecution of scientists accused of espionage for cooperating with foreign scientific institutions, the conviction of opposition activist Taisia Osipova to eight years of penal colony in a trial referred to as politically motivated, using dubious and possibly fabricated evidence and not meeting the standards of a fair trial, the detention of, and politically motivated criminal charges against, more than a dozen participants in the protest demonstration in Moscow on 6 May 2012 who were wrongly accused in connection with the alleged ’mass riots’, and the criminal investigation into opposition activists, such as Alexei Navalny, Boris Nemtsov and Sergey Udalcov;

6.  Expresses its deep disappointment with the verdict and the disproportionate sentence issued by the Khamovnichesky District Court in Russia in the case of Nadezhda Tolokonnikova, Maria Alyokhina and Ekaterina Samutsevitch, members of the punk band ’Pussy Riot’; notes with concern that this case adds to the recent upsurge in the politically motivated intimidation and prosecution of opposition activists in the Russian Federation, a trend that is of growing concern to the European Union; reaffirms its belief that this sentence will be reviewed and reversed in line with Russia's international commitments;

7.  Takes note of the Prosecutor-General's request to vote on early termination of Gennady Gudkov’ status of deputy in the Duma for business activity during to his parliamentary mandate, in contradiction of Article 289 of the Russian Criminal Code; stresses that the initiation of the parliamentary political procedure to strip Gennady Gudkov, a member of the opposition Just Russia party, of his parliamentary mandate is widely perceived as intimidation targeting the legitimate political activity of an opposition party which supported demands by the protest movement; calls on Russia to refrain from using laws arbitrarily for the purpose of clamping down on Members of the opposition;

8.  Expresses, however, its concern about the deteriorating climate for the development of civil society in Russia, in particular with regard to the recent adoption of a series of laws governing demonstrations, NGOs, defamation and the internet which contain ambiguous provisions and could lead to arbitrary enforcement; reminds the Russian authorities that a modern and prosperous society needs to recognise and protect the individual and collective rights of all its citizens; calls, in this context, on the Russian competent bodies to amend the new laws on NGOs so as to safeguard citizens’ associations that receive financial support from reputable foreign funds from political persecution;

9.  Expresses concern also about the law on extremism in terms of the wide discretion in the interpretation of its basic notions on ’extremist actions’ and ’extremist organisations’, which, according to the Venice Commission of the Council of Europe, could lead to arbitrariness and restriction of the freedoms of association, expression and belief; calls on the Russian authorities to address these concerns by amending the law;

10.  Recalls that former President Medvedev established a working group on reform of the electoral system and improving respect for the rule of law and fundamental rights in Russia; recalls that the European Parliament has urged the Russian authorities to pursue these reforms and has constantly offered EU support, including through the framework provided by the Partnership for Modernisation;

11.  Condemns the recently adopted legislation to criminalise public information about sexual orientation and gender identity in various Russian regions and similar plans at federal level; reminds the Russian authorities of its obligations to uphold the freedom of expression and the rights of LGBT people;

12.  Calls on the HR/VP and the Commission to offer consistent, deep support to civil society activists and representatives of the new grassroots social movement; calls on the EU to exert constant pressure on the Russian authorities to meet the OSCE standards of human rights, democracy, the rule of law and the independence of the judiciary;

13.  Underlines the importance of the continuous exchange of views on human rights with Russia within the EU-Russia Human Rights Consultations as a way to consolidate our interoperability in all the fields of cooperation, and demands an improvement in the format of these meetings in order to gain effectiveness, with special attention for common action against racism and xenophobia, and for this process to be opened to effective input from the European Parliament, the State Duma and the human rights NGOs, and expects the dialogue to take place alternately in Russia and in an EU Member State;

14.  Instructs its President to forward this resolution to the Council, the Commission, the governments and parliaments of the Member States, the Government and Parliament of the Russian Federation, the Council of Europe and the Organisation for Security and Cooperation in Europe.

(1) Texts adopted, P7_TA(2012)0088.
(2) Text adopted, P7_TA(2012)0054
(3) Text adopted, P7_TA(2011)0575.
(4) Text adopted, P7_TA(2011)0335.


Proposals for a European banking union (EBU)
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European Parliament resolution of 13 September 2012 Towards a Banking Union (2012/2729(RSP))
P7_TA(2012)0353B7-0457/2012

The European Parliament,

–  having regard to the report by the President of the European Council of 26 June 2012 entitled ’Towards a Genuine Economic and Monetary Union’,

–  having regard to the European Council Conclusions of 28 and 29 June 2012,

–  having regard to the Euro Area Summit Statement of 29 June 2012,

–  having regard to the Commission communication of 20 October 2009 entitled ’An EU Framework for Cross-Border Crisis Management in the Banking Sector’ (COM(2009)0561),

–  having regard to its resolution of 7 July 2010 with recommendations to the Commission on Cross-Border Crisis Management in the Banking Sector(1),

–  having regard to the G20 Leaders Statement issued at the Pittsburgh Summit of 24 and 25 September 2009, as regards cross-border resolutions and systemically important financial institutions,

–  having regard to its resolution of 6 July 2011 on the financial, economic and social crisis: recommendations concerning the measures and initiatives to be taken(2),

–  having regard to the Commission proposal of 6 June 2012 for a directive of the European Parliament and of the Council establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directives 77/91/EEC and 82/891/EEC, Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC and 2011/35/EU and Regulation (EU) No 1093/2010 (COM(2012)0280),

–  having regard to Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions(3),

–  having regard to Recommendation 13 of the report submitted to Commission President Barroso on 25 February 2009 by the High-Level Group on Financial Supervision in the EU chaired by Jacques de Larosière, which states, ’[t]he Group calls for a coherent and workable regulatory framework for crisis management in the EU’,

–  having regard to its resolution of 20 October 2010 with recommendations to the Commission on improving the economic governance and stability framework of the Union, in particular in the euro area(4), and in particular Recommendation 6 thereof,

–  having regard to Regulation (EU) No 1092/2010 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board(5),

–  having regard to Council Regulation (EU) No 1096/2010 of 17 November 2010 conferring specific tasks upon the European Central Bank concerning the functioning of the European Systemic Risk Board(6),

–  having regard to Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC(7),

–  having regard to the report of its Committee on Economic and Monetary Affairs on the proposal for a regulation of the European Parliament and of the Council establishing a European Banking Authority (A7-0166/2010),

–  having regard to the letters from its Committee on Economic and Monetary Affairs to both the Commission and the European Supervisory Authorities (ESAs) regarding the independence of ESAs,

–  having regard to the Memorandum of Understanding of 1 June 2008 on cooperation between the financial supervisory authorities, central banks and finance ministries of the European Union on cross-border financial stability(8),

–  having regard to the Commission proposal of 20 July 2011 for a regulation of the European Parliament and of the Council on prudential requirements for credit institutions and investment firms (COM(2011)0452),

–  having regard to the Commission proposal of 20 July 2011 for a directive of the European Parliament and of the Council on the access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms and amending Directive 2002/87/EC of the European Parliament and of the Council on the supplementary supervision of credit institutions, insurance undertakings and investment firms in a financial conglomerate (COM(2011)0453),

–  having regard to Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent(9), Third Council Directive 78/855/EEC of 9 October 1978 concerning mergers of public limited liability companies(10) and Sixth Council Directive 82/891/EEC of 17 December 1982 concerning the division of public limited liability companies(11),

–  having regard to its position of 16 February 2012 on the proposal for a directive of the European Parliament and of the Council on Deposit Guarantee Schemes (recast)(12),

–  having regard to its position of 5 July 2011 on the proposal for a directive of the European Parliament and of the Council amending Directive 97/9/EC of the European Parliament and of the Council on investor-compensation schemes(13),

–  having regard to the opinion of its Committee on Economic and Monetary Affairs of 31 August 2011 for its Committee on Budgets on ’Parliament's position on the 2012 Draft Budget as modified by the Council – all sections’ (2011/2020(BUD)),

–  having regard to the oral question to the Commission on proposals for a European Banking Union (O-000151/2012 – B7-0360/2012),

–  having regard to Rules 115(5) and 110(2) of its Rules of Procedure,

A.  whereas the G20 Leaders Statement issued at the Pittsburgh Summit of 24 and 25 September 2009 called for agreement to be reached on addressing cross-border resolutions and systemically important financial institutions by the end of 2010;

B.  whereas it is crucial to mobilise all efforts to stabilise the European financial market and break the link between banks and sovereigns, in order to start moving towards a genuine economic and monetary union;

C.  whereas back in July 2010 Parliament identified – through its resolution on Cross-Border Crisis Management in the Banking Sector and its report on the proposal for a regulation of the European Parliament and of the Council establishing a European Banking Authority – solutions to cross-border crisis management issues, namely an integrated supervisory mechanism, the reform of the Deposit Guarantee Schemes Mechanism and the creation of a European Stability Fund;

D.  whereas for banks in the euro area the ESM could, following a regular decision, have the possibility to recapitalise banks directly;

E.  whereas the European Council and the Council are finally reaching the same conclusions as Parliament as regards the need for a more integrated supervision system, and are now calling for the establishment of a Banking Union through the setting-up of single supervisory mechanism in conjunction with deposit guarantee schemes and a resolution scheme;

F.  whereas full parliamentary involvement is essential to the democratic legitimacy of the process leading to the establishment of such a Banking Union, as clearly stated in the fourth ’building block’ identified in the aforementioned report by Herman Van Rompuy, namely that of strengthening democratic legitimacy and accountability;

G.  whereas Parliament has been fully involved in the establishment of the European System of Financial Supervision (ESFS), including the establishment of the European Banking Authority, through the codecision procedure;

H.  whereas, in obvious contradiction of these very principles, but also of the Commission's right of initiative, the European Council has asked the latter to come up with a proposal on a single supervisory mechanism with Article 127(6) of the Treaty on the Functioning of the European Union as its sole legal basis, thereby depriving Parliament of its legislative power in single-market matters which are otherwise dealt with through codecision;

I.  whereas involving only the Member States in the procedure, far from making the process faster and more efficient, would send the public a negative signal at a time when the need for greater transparency and democratic support is widely acknowledged;

1.  Reiterates that, in moments of crisis, the Community method must always prevail, because this is the only way of ensuring that the Union is able to come out of the crisis stronger;

2.  Urges political leaders to encourage democratic legitimacy in all European Union affairs;

3.  Stresses the need to enhance democratic legitimacy with regard to the proposed Banking Union and single supervisory mechanism by fully involving Parliament as co-legislator;

4.  Stresses the need to give due consideration to the potential mutual spill-over effects of the Banking Union in the euro area for non-euro area members;

5.  Stresses that it will consider proposals on the Banking Union as a package in the event that they amend legislation adopted through the codecision procedure;

6.  Stresses that any major change in supervision, including shifts to other institutions, must be accompanied by an equivalent increase in transparency and accountability of such institutions vis-à-vis Parliament, which must have full questioning rights and full powers in relation to appointment and budgetary procedures;

7.  Instructs its President to forward this resolution to the Commission, the Council, the European Council and the parliaments and governments of the Member States.

(1) OJ C 351 E, 2.12.2011, p. 61.
(2) Texts adopted, P7_TA(2011)0331.
(3) OJ L 125, 5.5.2001, p. 15.
(4) OJ C 70 E, 8.3.2012, p. 41.
(5) OJ L 331, 15.12.2010, p. 1.
(6) OJ L 331, 15.12.2010, p. 162.
(7) OJ L 331, 15.12.2010, p. 12.
(8) ECFIN/CEFCPE(2008)REP/53106 REV REV.
(9) OJ L 26, 31.1.1977, p. 1.
(10) OJ L 295, 20.10.1978, p. 36.
(11) OJ L 378, 31.12.1982, p. 47.
(12) Texts adopted, P7_TA(2012)0049.
(13) Texts adopted, P7_TA(2011)0313.


South Africa: massacre of striking miners
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European Parliament resolution of 13 September 2012 on South Africa: massacre of striking miners (2012/2783(RSP))
P7_TA(2012)0354RC-B7-0443/2012

The European Parliament,

–  having regard to the South Africa-EU Strategic Partnership Joint Action Plan, which is the sole partnership of its kind concluded between the EU and an African country to date,

–  having regard to the ACP-EC Partnership Agreement (’Cotonou Agreement’),

–  having regard to the ILO Declaration on Fundamental Principles and Rights at Work and its follow-up,

–  having regard to the UN Global Compact and the OECD Guidelines for Multinational Enterprises,

–  having regard to the International Council for Mining and Metals’ Sustainable Development Framework,

–  having regard to the trade, development and cooperation agreement signed between the European Union and South Africa in 1999, completed in 2009 with provisions on political and economic cooperation,

–  having regard to President Jacob Zuma's press statement of 17 August 2012,

–  having regard to the remarks by High Representative Catherine Ashton of 23 and 24 August 2012 following the 11th South Africa-EU Ministerial Political Dialogue with Foreign Minister Nkoana-Mashabane,

–  having regard to the ACP-EU JPA resolution of 30 May 2012 on the social and environmental impact of mining in the ACP countries,

–  having regard to Rule 122(5) and 110(4) of its Rules of Procedure,

A.  whereas 34 people were shot dead and at least 78 were injured on 16 August 2012 in clashes between police and striking miners at the Marikana Lonmin platinum mine in North West Province, South Africa; whereas this was preceded by several days of violent strike action, in which 10 people were killed, including two security guards and two police officers;

B.  whereas 270 mineworkers were arrested at the strikes and charged for the deaths of their own companions under an apartheid-era ’common purpose’ law;

C.  whereas, following public outcry, prosecutors have dropped the murder charges against the mineworkers arrested on 16 August 2012 while the public violence case against them has been postponed until the completion of investigations;

D.  whereas the shooting constitutes the bloodiest incident between police and protesters since the end of apartheid in 1994;

E.  whereas the incident is to be seen in the wider perspective of the huge socioeconomic imbalances the country has been facing; whereas South Africa, since the fall of the apartheid regime, has succeeded in building a democratic state but is still facing crucial economic and social challenges, with the persistence of great inequality as well as a high rate of poverty and unemployment;

F.  whereas, after these bloody events, President Zuma publicly deplored this tragic state of affairs;

G.  whereas a Judicial Commission of Inquiry has been established by President Zuma to investigate the killings, and South Africa's Independent Police Investigative Directorate (IPID) has also initiated an investigation into the killings; whereas an inter-ministerial committee responsible for finding a lasting solution to the problems which caused these killings has been set up;

H.  whereas the lack of a reform of labour dispute mechanisms has led to considerable economic costs for South Africa and has been a deterrent to foreign investment;

I.  whereas the striking miners were in a pay dispute with the mine's owner, Lonmin, a London-listed platinum mining company – the world's third largest;

J.  whereas intense political and union rivalry has contributed to the dispute, in particular tensions between the National Union of Mineworkers (NUM) and the Association of Mineworkers and Construction Union (AMCU);

K.  whereas the expelled former African National Congress Youth League (ANCYL) president, Julius Malema, has been seen supporting the striking miners and the AMCU;

L.  whereas minerals and mining products from South Africa are exported, including to the countries of the European Union; whereas the mining sector is affected by depressed demand and increased operating costs;

M.  whereas some workers at the Marikana Lonmin platinum mine are still on strike for better salaries;

N.  whereas a strong police force was present on 5 September 2012 when more than 3000 striking miners marched through the streets near the Marikana mine in the largest, non-violent protest since the 16 August 2012 shooting;

O.  whereas action has spread to other mines, with four people wounded on 5 September 2012 in a confrontation at the Gold One Modder East mine where security guards fired rubber bullets at striking miners;

1.  Strongly condemns the brutal killing of striking miners on 16 August 2012 as well as the preceding violence which claimed the lives of 10 people, including two security guards and two police officers;

2.  Expresses its heartfelt sympathy to the families of all who have lost their lives since the beginning of the Marikana mine crisis;

3.  Welcomes both President Zuma's decision to establish a Commission of Inquiry and the IPID initiative to investigate the killings;

4.  Calls on the Commission of Inquiry to uphold transparency, to act thoroughly independently and impartially, and to ensure that its investigations complement those of the IPID;

5.  Urges all affected parties to work with the Commission of Inquiry to establish the facts about what happened at Marikana;

6.  Calls on the Commission of Inquiry to investigate the root cause of the excessive use of force by the police, and expresses its deep concern about the authorities’ use of the apartheid-era ’common purpose’ law;

7.  Is concerned that South Africa's established social partners are losing legitimacy among citizens as a result of continuing signs of corruption at all levels;

8.  Calls on the South African authorities and on Lonmin to ensure that the victims and their families have access to justice and are compensated and taken care of;

9.  Calls for all those arrested to be treated fairly and in accordance with judicial procedures, including impartial and transparent police investigations;

10.  Regrets Lonmin's failure to treat the labour dispute with the necessary sensitivity it deserved, and its failure to assume any responsibility, but welcomes the company's announcement not to dismiss strikers should they not go back to work, contrary to the company's previous demand;

11.  Is deeply concerned about the threat of violence expressed by striking miners, in particular in view of the reported intimidation of mineworkers who have been threatened with death if they continue working; calls on all parties involved to ensure that protests remain peaceful;

12.  Is concerned that the confrontation at the Gold One Modder East mine is a sign that the labour unrest may spread to the gold sector, leading to a possible spread of violence;

13.  Reminds all parties of their obligation to respect international law, including ILO principles and priorities, and the South African Constitution which guarantees the rights of association, assembly and freedom of expression;

14.  Calls on the South African authorities, the trade unions and Lonmin to continue to do their utmost to reach a swift, comprehensive and fair solution to the conflict and to the wage dispute, with the objective of bringing peace and stability to the area;

15.  Calls for an urgent resolution of the ongoing disputes and conflicts between NUM and AMCU;

16.  Insists that the issue of appropriate salaries for the workers in South African mines and inequity in the pay scale be addressed;

17.  Acknowledges that the South African Government has taken a series of steps to improve working conditions in the mining industry, and urges the authorities to continue their efforts;

18.  Calls on the South African Government to address the need for skills development within the South African Police Service, in particular in containing violent demonstrations and the use of live ammunitions; calls for the intensification of police training cooperation between the EU and South Africa;

19.  Asks the Commission to establish a control mechanism aimed at preventing the import into the EU of mining products extracted without social, labour, safety and environmental guarantees; encourages the Commission to establish a quality label for mining products extracted in accordance with minimum social, labour, safety and environmental standards;

20.  Urges the South African Government to address the root causes of the violence that occurred, including the worrying gap between rich and poor, the rise of youth unemployment and the working and living conditions of workers, and thereby end the extreme economic inequality;

21.  Is ready to continue its support for South Africa, and emphasises the need for a sustained and more focused partnership to help the country address the socio-economic challenges it faces;

22.  Instructs its President to forward this resolution to the Council, the Commission, the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy, the Parliament and Government of South Africa, the Co-Presidents of the ACP-EU Joint Parliamentary Assembly, the Pan-African Parliament and the African Union.


Persecution of Rohingya Muslims in Burma
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European Parliament resolution of 13 September 2012 on the persecution of Rohingya Muslims in Burma/Myanmar (2012/2784(RSP))
P7_TA(2012)0355RC-B7-0426/2012

The European Parliament,

–  having regard to its previous resolutions on Burma/Myanmar, and in particular that of 20 April 2012(1),

–  having regard to the progress report of 7 March 2012 by the UN Special Rapporteur on the situation of human rights in Myanmar,

–  having regard to the Council conclusions of 23 April 2012 on Burma/Myanmar,

–  having regard to the statement of 13 June 2012 by the spokesperson of High Representative Catherine Ashton on the crisis in northern Rakhine State in Burma/Myanmar,

–  having regard to the exchange of views on the Rohingya issue which took place in its Subcommittee on Human Rights on 11 July 2012,

–  having regard to the statement of 9 August 2012 by Commissioner Georgieva on humanitarian access to the Rohingya and other affected communities,

–  having regard to the statement of 17 August 2012 by the ASEAN foreign ministers on the recent developments in Rakhine State,

–  having regard to the UN Convention on the Status of Refugees of 1951 and the protocol thereto of 1967,

–  having regard to Articles 18 to 21 of the Universal Declaration of Human Rights (UDHR) of 1948,

–  having regard to Article 25 of the International Covenant on Civil and Political Rights (ICCPR) of 1966,

–  having regard to the decisions allowing Burma/Myanmar to host the Southeast Asian Games in 2013 and to chair ASEAN in 2014,

–  having regard to Rules 122(5) and 110(4) of its Rules of Procedure,

A.  whereas since the new government of President Thein Sein took office in March 2011, it has taken numerous steps to expand civil liberties in the country, the majority of political prisoners have been released, with a number being elected to the Parliament in byelections, preliminary ceasefires have come into force with most armed ethnic groups, and many political dissidents have returned from exile in the hope of reconciliation;

B.  whereas, however, discrimination against the Rohingya minority has intensified;

C.  whereas on 28 May 2012 the rape and murder of a Buddhist woman set off a chain of deadly clashes between the majority Rakhine Buddhist population and the minority Rohingya Muslim community in Rakhine State;

D.  whereas in the following days communal violence spread between the two communities, disproportionately involving Rakhine mobs and security forces targeting Rohingya, leaving dozens of people dead, thousands of homes destroyed and over 70 000 people internally displaced; whereas on 10 June 2012 a state of emergency was declared in six townships of Rakhine State;

E.  whereas President Thein Sein had initially expressed the view that the only solution for the Rohingya was either to send them to refugee camps with UNHCR support or to resettle them in other countries;

F.  whereas the Rohingya, many of whom have been settled in Rakhine State for centuries, have not been recognised as one of Burma/Myanmar's 135 national groups, and have thus been denied citizenship rights under the 1982 Citizenship Law, are perceived by many Burmese to be illegal immigrants from Bangladesh, and have been subject to systematic and severe discrimination, including restrictions in areas such as freedom of movement, marriage, education, healthcare and employment, as well as land confiscation, forced labour, arbitrary arrest and harassment by the authorities;

G.  whereas in the face of persistent persecution an estimated 1 million Rohingyas have fled to neighbouring countries over the years; whereas 300 000 have fled to Bangladesh alone, in which country their long-term situation remains unresolved, while the Bangladeshi authorities have recently instructed the international humanitarian NGOs which provide basic heath and nutrition services to unregistered refugees as well as to the local population in Cox's Bazar district to suspend their activities, and are now reportedly pushing Rohingya asylum seekers back;

H.  whereas the Commission's Humanitarian Aid and Civil Protection department (ECHO) has allocated EUR 10 million to support for Rohingya refugees and the local host population in Bangladesh in 2012;

I.  whereas on 17 August 2012 the Burmese government appointed an independent Investigation Commission, consisting of 27 representatives of civil society and political and religious organisations, to inquire into the causes of the outbreak of sectarian violence and make suggestions;

1.  Is alarmed at the continuing ethnic violence in western Burma, which has caused large numbers of deaths and injuries, destruction of property and displacement of local populations, and expresses its concern that these intercommunal clashes may put at risk the transition to democracy in Burma/Myanmar;

2.  Calls on all parties to exercise restraint, and urges the Burmese authorities to stop arbitrary arrests of Rohingya, to provide information on the whereabouts of the hundreds of people detained since security operations in Rakhine State began in June 2012, and to immediately release those arbitrarily arrested;

3.  Calls on the government of Burma/Myanmar, as a matter of urgency, to allow the UN agencies and humanitarian NGOs, as well as journalists and diplomats, unhindered access to all areas of Rakhine State, guarantee unrestricted access to humanitarian aid for all affected populations, and ensure that displaced Rohingya enjoy freedom of movement and are permitted to return to their place of residence once it is safe for them to do so;

4.  Welcomes the creation of the independent Investigation Commission, but regrets the absence of a Rohingya representative;

5.  Calls on the government of Burma/Myanmar to bring the perpetrators of the violent clashes and other related abuses in Rakhine State to justice, and to rein in the extremist groups who are instigating communal hatred, propagating threats against humanitarian and international agencies, and advocating expulsion or permanent segregation of the two communities;

6.  Calls on the EEAS to support the Burmese government by all possible means in its efforts to stabilise the situation, implement programmes promoting reconciliation, design a broader socio-economic development plan for Rakhine State, and continue Burma/Myanmar's progress towards democracy;

7.  Expresses its appreciation for those Burmese citizens who have raised their voice in support of the Muslim minority and a pluralist society, and calls on the political forces to take a clear stand in that sense; believes that an inclusive dialogue with local communities could be an important element in terms of attenuating the numerous ethnic problems in Burma/Myanmar;

8.  Insists that the Rohingya minority cannot be left out of the newly developing openness for a multicultural Burma/Myanmar, and calls on the government to amend the 1982 citizenship law so as to bring it into line with international human rights standards and its obligations under Article 7 of the UN Convention of the Rights of the Child, with a view to granting citizens’ rights to the Rohingya and other stateless minorities, as well as ensuring equal treatment for all Burmese citizens, thus ending discriminatory practices;

9.  Is concerned at the arrest of 14 international aid workers during the unrest, and calls for the immediate release of the five who are still in prison;

10.  Urges the Burmese government to allow the UN Special Rapporteur on human rights in the country to conduct an independent investigation into the abuses in Rakhine State; calls on the OHCHR to establish an office in Burma/Myanmar with a full protection, promotion, and technical assistance mandate, as well as sub-offices in states around the country, including Rakhine State;

11.  Encourages the Burmese government to continue implementing its democratic reforms, to establish the rule of law, and to ensure respect for human rights and fundamental freedoms, in particular freedom of expression and assembly (including on the internet);

12.  Urges all countries in the region to come to the aid of refugees from Burma/Myanmar and to support the Burmese government in finding equitable solutions for the underlying causes;

13.  Urges Bangladesh, in particular, to continue its acceptance of present donor support and any additional support measures, and to allow the humanitarian aid organisations to continue their work in the country, especially in the light of the events in Rakhine State and the resultant additional flows of refugees in dire need of basic care;

14.  Instructs its President to forward this resolution to the Governments and Parliaments of Burma/Myanmar and of Bangladesh, the EU High Representative, the Commission, the Governments and Parliaments of the Member States, the Secretary-General of ASEAN, the ASEAN Intergovernmental Commission on Human Rights, the UN Special Representative for Human Rights in Myanmar, the UN High Commissioner for Refugees, and the UN Human Rights Council.

(1) Texts adopted, P7_TA(2012)0142.


Azerbaijan: the case of Ramil Safarov
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European Parliament resolution of 13 September 2012 on Azerbaijan: the Ramil Safarov case (2012/2785(RSP))
P7_TA(2012)0356RC-B7-0428/2012

The European Parliament,

–  having regard to its previous resolutions on the situation in Azerbaijan, in particular those concerning human rights,

–   having regard to the established practice of international law regarding transfer, namely the Convention on the Transfer of Sentenced Persons, under which it was agreed that cooperation should be developed in order to further the ends of justice and the social rehabilitation of sentenced persons, by giving them the opportunity to serve their sentences within their own society,

–   having regard to the statement issued by its President, Martin Schulz, on 5 September 2012 concerning the pardon granted to Ramil Safarov in Azerbaijan,

–   having regard to the joint statement issued by the High Representative of the Union for Foreign Affairs and Security Policy, Catherine Ashton, and Commissioner Štefan Füle on 3 September 2012 concerning the release of Mr Safarov,

–   having regard to the statement issued by the Secretary-General of the Council of Europe, Thorbjørn Jagland, on 4 September 2012,

–   having regard to the official letter received by the Ministry of Public Administration and Justice of Hungary on 15 August 2012 from the Deputy Minister of Justice of the Republic of Azerbaijan, Vilayat Zahirov,

–  having regard to its resolution of 18 April 2012 on the negotiations of the EU-Azerbaijan Association Agreement,(1)

–   having regard to the statement issued by the Hungarian Prime Minister, Viktor Orbán, on 3 September 2012, in which he gave an assurance that Hungary had acted in accordance with its international obligations,

–   having regard to the Partnership and Cooperation Agreement between the EU and Azerbaijan, which entered into force in 1999, and to the ongoing negotiations between the two parties on a new association agreement to replace the previous one,

–  having regard to Rules 122(5) and 110(4) of its Rules of Procedure,

A.  whereas Ramil Safarov had been jailed in a Hungarian prison since 2004 after brutally killing an Armenian colleague during a course sponsored by NATO's Partnership for Peace Programme in Budapest; whereas Mr Safarov had pleaded guilty and had expressed no remorse, defending his action on the grounds that the victim was Armenian;

B.  whereas on 31 August 2012 Mr Safarov, a lieutenant of the Azerbaijani armed forces who had been convicted of murder and sentenced to life imprisonment in Hungary, was transferred to Azerbaijan at the longstanding request of the Azerbaijani authorities;

C.  whereas immediately after Mr Safarov was transferred to Azerbaijan the Azerbaijani President, Ilham Aliyev, pardoned him in line with the Constitution of the Republic of Azerbaijan and Article 12 of the Convention on the Transfer of Sentenced Persons;

D.  whereas Article 9 of the Convention on the Transfer of Sentenced Persons, to which Hungary and Azerbaijan are both signatory parties, states that a person sentenced in the territory of one state may be transferred to the territory of another in order to serve the sentence imposed on him or her, provided that the conditions laid down in that convention are met;

E.  whereas the Deputy Minister of Justice of the Republic of Azerbaijan, Vilayat Zahirov, sent an official letter to the Ministry of Public Administration and Justice of Hungary on 15 August 2012, in which he stated that the execution of the decisions of foreign states’ courts regarding the transfer of sentenced persons to serve the remaining part of their prison sentences in the Republic of Azerbaijan were carried out in accordance with Article 9(1)(a) of the convention, without any conversion of their sentences; whereas he further gave an assurance that, according to the Criminal Code of the Republic of Azerbaijan, the punishment of a convict serving a life sentence could only be replaced by a court with a term of imprisonment for a specified period, and that the convict could be released on conditional parole only after serving at least 25 years of his or her prison sentence; and whereas the Azerbaijani authorities subsequently denied having given any diplomatic assurances to the Hungarian authorities;

F.  whereas Lieutenant Safarov received a glorious welcome in Azerbaijan and a few hours after his return was granted a presidential pardon, set free and promoted to the rank of major during a public ceremony;

G.  whereas the decision to set Mr Safarov free triggered widespread international reactions of disapproval and condemnation;

H.  whereas on 31 August 2012 the Armenian President, Serzh Sargsyan, announced that Armenia was suspending its diplomatic relations with Hungary;

I.  whereas Azerbaijan participates actively in the European Neighbourhood Policy and the Eastern Partnership, is a founding member of Euronest and has committed itself to respect democracy, human rights and the rule of law, which are core values of these initiatives;

J.  whereas Azerbaijan has taken up a non-permanent seat in the United Nations Security Council (UNSC) for the 2012-2013 period and committed itself to uphold the values enshrined in the UN Charter and the Universal Declaration of Human Rights;

K.  whereas Azerbaijan is a member of the Council of Europe and a party to the European Convention on Human Rights (ECHR) as well as to a number of other international human rights treaties, including the International Covenant on Civil and Political Rights;

1.  Stresses the importance of the rule of law and of honouring commitments made;

2.  Deplores the decision by the President of Azerbaijan to pardon Ramil Safarov, a convicted murderer sentenced by the courts of a Member State of the European Union; regards that decision as a gesture which could contribute to further escalation of the tensions between two countries, and which is exacerbating feelings of injustice and deepening the divide between those countries, and is further concerned that this act is jeopardising all peaceful reconciliation processes within the societies concerned and may undermine the possible future development of peaceful people-to-people contact in the region;

3.  Considers that, while the presidential pardon granted to Mr Safarov complies with the letter of the Convention on the Transfer of Sentenced Persons, it runs contrary to the spirit of that international agreement, which was negotiated to allow the transfer of a person convicted on the territory of one state to serve the remainder of his or her sentence on the territory of another state;

4.  Considers the presidential pardon granted to Mr Safarov as a violation of the diplomatic assurances given to the Hungarian authorities in Azerbaijan's request for transfer on the basis of on the Convention on the Transfer of Sentenced Persons;

5.  Deplores the hero's welcome accorded to Mr Safarov in Azerbaijan and the decision to promote him to the rank of major and pay him eight years’ back salary upon his arrival, and is concerned about the example this sets for future generations and about the promotion and recognition he has received from the Azerbaijani state;

6.  Takes the view that the frustration in Azerbaijan and Armenia over the lack of any substantial progress as regards the peace process in Nagorno-Karabakh does not justify either acts of revenge or futile provocations that add further tension to an already tense and fragile situation;

7.  Expresses its support for the ongoing efforts of the European External Action Service (EEAS), the EU Special Representative for the South Caucasus and the Member States to defuse tensions and ensure that progress is made towards peace in the region;

8.  Supports the Co-Chairs of the OSCE Minsk Group in their efforts to secure substantial progress in the peace process in Nagorno-Karabakh with a view to finding a lasting, comprehensive settlement in accordance with international law;

9.  Insists that the EU should play a stronger role in the settlement of the conflict in Nagorno-Karabakh by supporting the implementation of confidence-building measures which will bring together Armenian and Azerbaijani communities and spread ideas of peace, reconciliation and trust on all sides;

10.  Reiterates its position that the association agreement currently being negotiated between the EU and Azerbaijan should include clauses and benchmarks relating to the protection and promotion of human rights and the rule of law;

11.  Condemns all forms of terrorism and the use of threats of terrorism;

12.  Instructs its President to forward this resolution to the EEAS, the European Council, the Commission, the respective governments and parliaments of the Republic of Azerbaijan and the Republic of Armenia, the Council of Europe, the OSCE and the UN Special Rapporteur on human rights and counter-terrorism.

(1) Texts adopted, P7_TA(2012)0127.


Tackling multiple sclerosis in Europe
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Declaration of the European Parliament of 13 September 2012 on tackling multiple sclerosis in Europe
P7_TA(2012)0357P7_DCL(2012)0020

The European Parliament,

–  having regard to Rule 123 of its Rules of Procedure,

A.  whereas approximately 600 000 Europeans suffer from multiple sclerosis (MS), which is the most common neurodegenerative disorder and is a major cause of non-traumatic disability in young adults;

B.  whereas most people with MS are diagnosed in the prime of their working lives, and almost half leave the workforce within three years of diagnosis;

C.  whereas in Europe tremendous discrepancies in access to disease-modifying treatments and quality of care exist, and have worsened in recent months;

1.  Calls on the Commission and Council to:

   encourage, within the framework of Horizon 2020, closer scientific collaboration and comparative research on MS;
   promote, in their Reflection Process on Chronic Disease, equal access to treatment and flexible employment policies for people with chronic neurological disorders such as MS;

2.  Calls on the Member States to:

   enhance equal access to quality care, for example. by using certified educational training tools (such as ’MS Nurse Professional’) to develop, standardise and benchmark specialist nursing staff training;
   support the European Register for MS by encouraging patient data collection at national level;

3.  Instructs its President to forward this declaration, together with the names of the signatories(1), to the Council, the Commission and the Parliaments of the Member States.

(1) The list of signatories is published in Annex 1 to the Minutes of 13 September 2012 (P7_PV(2012)09-13(ANN1)).

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