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 Index 
Texts adopted
Wednesday, 31 March 2004 - StrasbourgFinal edition
New financial services committee organisational structure ***I
  Resolution
  Consolidated text
 Sudan
 Internal combustion engines in agricultural and forestry tractors ***
 Political Dialogue and Cooperation Agreement with Central America *
 Political Dialogue and Cooperation Agreement with the Andean Community *
 Guarantee Fund for external actions *
 New Neighbourhood policy *
 Macro-financial assistance to Albania *
 Governance in the European Union's development policy
 Environmental liability ***III
 Feed hygiene ***I
  Resolution
  Consolidated text
 Materials and articles intended to come into contact with food ***I
  Resolution
  Consolidated text
 Development cooperation with South Africa ***I
  Resolution
  Consolidated text
 Fluorinated greenhouse gases ***I
  Resolution
  Consolidated text
 Application of the Århus Convention ***I
  Resolution
  Consolidated text
 Access to justice in environmental matters ***I
  Resolution
  Consolidated text
 Management of waste from the extractive industries ***I
  Resolution
  Consolidated text
 Conclusion of the Arhus Convention *
 European satellite radionavigation programme *
 European Evidence Warrant *
 European Centre for the Development of Vocational Training*
 Passenger name records
 Environment and health strategy

New financial services committee organisational structure ***I
Resolution
Consolidated text
European Parliament legislative resolution on the proposal for a European Parliament and Council directive amending Council Directives 73/239/EEC, 85/611/EEC, 91/675/EEC, 93/6/EEC and 94/19/EC and Directives 2000/12/EC, 2002/83/EC and 2002/87/EC of the European Parliament and of the Council, in order to establish a new financial services committee organisational structure (COM(2003) 659 – C5-0520/2003 – 2003/0263(COD))
P5_TA(2004)0224 A5-0162/2004

(Codecision procedure: first reading)

The European Parliament ,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2003) 659 )(1) ,

–   having regard to Articles 251(2) and 47(2) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C5-0520/2003 ),

–   having regard to Rule 67 of its Rules of Procedure,

–   having regard to the report of the Committee on Economic and Monetary Affairs and the opinion of the Committee on Constitutional Affairs (A5-0162/2004 ),

1.   Approves the Commission proposal as amended;

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

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

Position of the European Parliament adopted at first reading on 31 March 2004 with a view to the adoption of Directive 2004/.../EC of the European Parliament and of the Council amending Council Directives 73/239/EEC, 85/611/EEC, 91/675/EEC, 92/49/EEC and 93/6/EEC and Directives 94/19/EC, 98/78/EC , 2000/12/EC, 2001/34/EC, 2002/83/EC and 2002/87/ EC in order to establish a new organisational structure for financial services committees

P5_TC1-COD(2003)0263


THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 47 (2) thereof,

Having regard to the proposal from the Commission(2) ,

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

Having regard to the opinion of the Committee of the Regions(4) ,

Having regard to the opinion of the European Central Bank (5) ,

Acting in accordance with the procedure laid down in Article 251 of the Treaty(6) ,

Whereas:

(1)   The Commission Action Plan for Fin ancial Services(7) identifies a series of actions that are required in order to complete the single market for financial services.

(2)   At its meeting in Lisbon in March 2000, the European Council called for the implementation of this Action Plan by 2005.

(3)   On 17 July 2000, the Council set up the Committee of Wise Men on the Regulation of European Securities Markets. In its final report, the Committee of Wise Men called for the establishment of a four-level regulatory framework in order to make the regulatory process for Community securities legislation more flexible, effective and transparent.

(4)   In its Resolution on more effective securities market regulation in the European Union, the Stockholm European Council of March 2001 welcomed the report of the Committee of Wise Men and called for the four-level approach to be implemented.

(5)   In the light of those developments, the Commission adopted on 6 June 2001 Decisions 2001/527/EC(8) and 2001/528/EC(9) setting up, respectively, the Committee of European Securities Regulators (CESR) and the European Securities Committee (ESC).

(6)    Democratic accountability and transparency must be inherent in the so-called Lamfalussy process and its extension, which can only be sufficiently guaranteed by respecting the interinstitutional balance with regard to implementing measures.

(7)    This Directive amending Directives 73/239/EEC (10) , 85/611/EEC (11) , 91/675/EEC (12) , 92/49/EEC (13) , 93/6/EEC (14) , 94/19/EC (15) , 98/78/EC (16) , 2000/12/EC (17) , 2001/34/EC (18) , 2002/83/EC (19) and 2002/87/EC (20) only aims at certain changes in the organisational structure of committees. None of the modifications extends the powers to adopt implementing measures vested in the Commission in these directives, nor the powers vested in the Council in Directive 93/6/EEC .

(8 )   In its resolution of 5 February 2002 (21) , the European Parliament endorsed the four-level approach for securities, on the basis of the solemn declaration made before Parliament the same day by the Commission and the letter of 2 October 2001 addressed by the Internal Market Commissioner to the Chairman of Parliament's Committee on Economic and Monetary Affairs with regard to the safeguards for the European Parliament's role in this process . In its resolution of 21 November 2002 (22) , Parliament called for certain aspects of that approach to be extended to the banking and insurance sectors subject to a clear commitment on the part of the Council to guarantee a proper institutional balance.

(9)    The commitments made by the Commission regarding securities legislation via the abovementioned declaration of 5 February 2002 and letter of 2 October 2001 should be complemented by sufficient guarantees concerning a proper institutional balance.

(10 )   On 3 December 2002, the Council invited the Commission to implement arrangements for the remaining financial services sectors based upon the Final Report of the Committee of Wise Men.

(11)    Safeguards with respect to the extension of the four-level approach are also required because the EU institutions do not yet benefit from an extensive practical experience of the four-level Lamfalussy approach. Furthermore, the first and second Interim Reports of the Interinstitutional Monitoring Group monitoring the Lamfalussy process contained a number of remarks and criticisms concerning the functioning of the process.

(12)    The speed of adoption of legislation and the quality of legislation are fundamental objectives of the Lamfalussy process. The success of the Lamfalussy process depends more on the political will of the institutional partners to set up an appropriate framework for the adoption of the legislation than on an acceleration of the setting up of the related technical delegated provisions. In addition, excessive emphasis on the speed of setting up the delegated provisions could create significant problems with regard to the quality of those provisions.

(13)    The extension of the Lamfalussy procedure is without prejudice to possible decisions regarding the organisation of supervision at a European level.

(14 )   For those purposes, as regards the banking sector, the role of the Banking Advisory Committee (BAC) set up by Directive 2000/12/EC should be adapted.

(15 )   To reflect that adapted role, the BAC should be replaced by "the European Banking Committee".

(16 )   Since the measures necessary for the implementation of Directive 2000/12/EC are measures of general scope within the meaning of Article 2 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(23) , they should be adopted by use of the "comitology" procedure provided for in Article 5 of that Decision.

(17)    The implementing measures adopted should not modify the essential provisions of the Directives.

(18)    The European Parliament should be given a period of three months from the first transmission of draft implementing measures to allow it to examine them and to give its opinion. However, in urgent and duly justified cases this period may be shortened. If, within that period, a resolution is passed by the European Parliament, the Commission will re-examine the draft measures.

(19)   In exercising its implementing powers, the Commission should respect the following principles:

   the need to ensure confidence in financial markets among investors by promoting high standards of transparency in those markets,
   the need to provide investors with a wide range of competing investments and a level of disclosure and protection tailored to their circumstances,
   the need to ensure that independent regulatory authorities enforce the rules consistently, especially as regards the fight against economic crime,
   the need for high levels of transparency and consultation with all market participants and with the European Parliament and the Council,
   the need to encourage innovation in financial markets if they are to be dynamic and efficient,
   the need to ensure market integrity by close and reactive monitoring of financial innovation,
   the importance of reducing the cost of, and increasing access to, capital,
   the balance of costs and benefits to market participants on a long-term basis (including small and medium-sized businesses and small investors) in any implementing measures,
   the need to foster the international competitiveness of EU financial markets without prejudice to a much-needed extension of international cooperation,
   the need to achieve a level playing field for all market participants by establishing EU-wide regulations every time it is appropriate,
   the need to respect differences in national markets where these do not unduly impinge on the cohesion of the single market,
   the need to ensure coherence with other Community legislation in this area, as imbalances in information and a lack of transparency may jeopardise the operation of the markets and above all harm consumers and small investors.

(20 )   Certain existing provisions for technical amendments to Directive 2000/12/EC need to be brought into line with Decision 1999/468/EC.

(21 )   In order to ensure institutional and legal consistency with the approach taken in other Community sectors, Commission Decision 2004/10/EC of 5 November 2003 (24) established the European Banking Committee in an advisory capacity to advise the Commission as regards the development of Community banking legislation.

(22 )   References to the advisory functions of the BAC in Directive 2000/12/EC should therefore be deleted.

(23 )   As regards the monitoring of observation ratios for the solvency and liquidity of credit institutions, the competencies of the BAC are no longer needed in view of the harmonisation of capital adequacy rules and of developments in the techniques used by credit institutions to measure and manage their liquidity risk.

(24 )   Moreover, the substantial progress made in cooperation and exchange of information between supervisory authorities, in particular through Memoranda of Understanding, has rendered superfluous the regular monitoring by the Commission of certain individual supervisory decisions and their systematic reporting to the BAC.

(25 )   The establishment of the European Banking Committee should not rule out other forms of cooperation between the different authorities involved in the regulation and supervision of credit institutions, in particular within the Committee of European Banking Supervisors established by Commission Decision 2004/5/EC of 5 November 2003 (25) .

(26 )   The Insurance Committee (IC) set up under Directive 91/675/EEC is to assist the Commission, in the exercise of the implementing powers granted by Directives adopted in the field of insurance, and in particular to make the technical adaptations necessary to take account of developments in the insurance sector; such measures being taken in accordance with the "comitology" procedure laid down in Decision 1999/468/EC.

(27 )   Under Directive 91/675/EEC, the IC is also to examine any question relating to the application of Community provisions concerning the insurance sector and, in particular, to advise the Commission on proposals for legislation which the Commission intends to present to the European Parliament and to the Council.

(28 )   In order to build an internal market where policyholders and beneficiaries are properly protected, insurance and occupational pensions undertakings operating in the internal market under the principles of freedom of establishment and freedom to provide services are subject to specific Community legislation. To ensure the proper functioning of the internal market and maintain financial stability, that legislation should be capable of being rapidly adapted to market changes affecting those sectors, in particular with regard to financial and technical aspects.

(29 )   The role of the IC should therefore be adapted, and this Committee should accordingly be renamed "the European Insurance and Occupational Pensions Committee". However, in the occupational pensions field, the European Insurance and Occupational Pensions Committee should not address labour and social law aspects such as the organisation of occupational regimes, in particular compulsory membership and the results of collective bargaining agreements.

(30 )   Since the measures necessary for the implementation of acts covered by Directive 91/675/EEC are measures of general scope within the meaning of Article 2 of Decision 1999/468/EC, they should be adopted by use of the "comitology" procedure provided for in Article 5 of that Decision.

(31 )   To ensure institutional and legal consistency with the approach taken in other Community sectors, Commission Decision 2004/9/EC of 5 November 2003 (26) established the European Insurance and Occupational Pensions Committee in an advisory capacity to assist the Commission in the fields of insurance and occupational pensions.

(32 )   References to the advisory functions of the IC in Directive 91/675/EEC should therefore be deleted.

(33 )   Directive 85/611/EEC set up a UCITS Contact Committee, to assist the Commission by facilitating the harmonised implementation of that Directive through regular consultations, promoting consultation between Member States and advising the Commission, if necessary, on amendments to be made to that Directive.

(34 )   The UCITS Contact Committee may also act as a "comitology" Committee within the meaning of Decision 1999/468/EC to assist the Commission in regard to the technical amendments to be made to Directive 85/611/EEC.

(35 )   On 3 December 2002, the Council invited the Commission to take steps in order to transfer to the ESC inter alia the function, hitherto held by the UCITS Contact Committee, of advising the Commission in the exercise of its implementing powers.

(36 )   In order to fully implement the model set out in recent Directives in the securities field, in particular Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse)(27) - which gives to the ESC the function to advise the Commission in the exercise of its regulatory powers, while leaving the organisation of other aspects of the ESC's work to be governed by Decision 2001/528/EC – it is necessary to delete the provisions setting up, under Article 53 of Directive 85/611/EEC, the organisation and functions of the present UCITS Contact Committee outside its "comitology" capacity.

(37 )   The competences of the ESC should therefore be expressly extended beyond those already conferred upon it by Directive 2003/6/EC, to cover the functions currently laid down in Directive 85/611/EEC. Since the measures necessary for the implementation of this Directive are measures of general scope within the meaning of Article 2 of Decision 1999/468/EC, they should be adopted by use of the "comitology" procedure provided for in Article 5 of that Decision.

(38 )   It is therefore also necessary to amend accordingly Directives 73/239/EEC, 92/49/EEC, 93/6/EEC, 94/19/EC, 98/78/EC, 2000/12/EC, 2001/34/EC, 2002/83/EC and 2002/87/EC ,

HAVE ADOPTED THIS DIRECTIVE:

Chapter I

Amendments to Directives 93/6/EEC, 94/19/EC, and 2000/12/EC on the banking sector

Article 1

Directive 93/6/EEC

In Article 7(9) of Directive 93/6/EEC, the words "and to the Banking Advisory Committee" are deleted.

Article 2

Directive 94/19/EC

In the third subparagraph of Article 3(1) of Directive 94/19/EC, the term "Banking Advisory Committee" is replaced by the term "European Banking Committee".

Article 3

Directive 2000/12/EC

Directive 2000/12/EC is amended as follows:

1.   Article 2 (4) is replaced by the following:

"

4.   The Commission, pursuant to the procedure set out in Article 60(2) shall decide on any amendments to the list in paragraph 3.

"

2.   In Article 2 (5), the third subparagraph is replaced by the following:

"

In the case of credit institutions other than those which are set up in areas newly reclaimed from the sea or have resulted from scission or mergers of existing institutions dependent or answerable to the central body, the Commission, pursuant to the procedure set out in Article 60(2) may lay down additional rules for the application of the second subparagraph including the repeal of exemptions provided for in the first subparagraph, where it is of the opinion that the affiliation of new institutions benefiting from the arrangements laid down in the second subparagraph might have an adverse effect on competition.

"

3.   In Article 4, the words "both the Commission and the Banking Advisory Committee" are replaced by "the Commission" .

4.   In Article 22(9), the last sentence is deleted.

5.   In Article 22(10), the last sentence is deleted.

6.   In the first subparagraph of Article 23(1), the introductory phrase is replaced by the following: "The competent authorities of the Member States shall inform the Commission and the competent authorities of the other Member States", and both the last sentence of point (a) and the last sentence of point (b) are deleted.

7.   In Articles 24(2) and 49(2), the term "Banking Advisory Committee" is replaced by the term "European Banking Committee".

8.   Article 25(3) is replaced by the following:

"

3.   Without prejudice to Article 300(1) and (2) of the Treaty, the Commission shall, with the assistance of the European Banking Committee, examine the outcome of the negotiations referred to in paragraph 1 and the resulting situation.

"

9.   In Article 52(9) the third sentence is replaced by the following:

"

The competent authority concerned shall forward such information to the competent authorities of the other Member States.

"

10.    In the second subparagraph of Article 56a, the words "The Banking Advisory Committee may" are replaced by the words "The Commission may request the European Banking Committee to".

11 .   Title VI is deleted.

12 .   Article 60(2) is replaced by the following:

"

2.   The Commission shall be assisted by the European Banking Committee instituted by Commission Decision 2004/10/EC of 5 November 2003* (hereinafter referred to as "the Committee"), composed of representatives of the Member States and chaired by the representative of the Commission.

Where reference is made to this paragraph, the "comitology" procedure laid down in Article 5 of Decision 1999/468/EC shall apply, in compliance with Article 7 (3) and Article 8 thereof.

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

________________

* OJ L 3, 7.1.2004, p. 36.

"

13.   Article 64 is amended as follows:

   a) in paragraph 2, the words "and the Banking Advisory Committee" are deleted;
   b) in paragraph 6, the words "and the Banking Advisory Committee" are deleted.

Chapter II

Amendments to Directives 73/239/EEC, 91/675/EEC, 92/49/EEC, 98/78/EC and 2002/83/EC on the insurance and occupational pensions sector

Article 4

Directive 73/239/EEC

Directive 73/239/EEC is amended as follows:

(1)   Article 29a is replaced by the following:

"

Article 29a

1.  The competent authorities of the Member States shall inform the Commission and the competent authorities of the other Member States:

   a) of any authorisation of a direct or indirect subsidiary, one or more parent undertakings of which are governed by the law of a third country;
   b) whenever such a parent undertaking acquires a holding in a Community insurance undertaking which would turn the latter into its subsidiary .

2.   When the authorisation referred to in point (a) of paragraph 1 is granted to the direct or indirect subsidiary of one or more parent undertakings governed by the law of a third country, the structure of the group shall be specified in the notification which the competent authorities shall address to the Commission.

"

(2)   In Article 29b(4), the second subparagraph is replaced by the following:

"

In the circumstances described in the first subparagraph, it may also be decided at any time, and in addition to initiating negotiations, in accordance with the procedure referred to in Article 5 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedure for the exercise of implementing powers conferred on the Commisison* and in compliance with Article 7(3) and Article 8 thereof, that the competent authorities of the Member States must limit or suspend their decisions regarding the following:

   a) requests for authorisation, whether pending at the moment of the decision or submitted thereafter;
   b) the acquisition of holdings by direct or indirect parent undertakings governed by the law of the third country in question.
__________
* OJ L 184 , 17.7.1999, p. 23.

"

Article 5

Directive 91/675/EEC

Directive 91/675/EEC is amended as follows:

(1)   In the Title, the term "Insurance Committee" is replaced by the term "European Insurance and Occupational Pensions Committee".

(2)   Article 1 is replaced by the following:

"

Article 1

1.   The Commission shall be assisted by the European Insurance and Occupational Pensions Committee instituted by Commission Decision 2004/9/EC of 5 November 2003* hereinafter "the Committee", composed of representatives of the Member States and chaired by the representative of the Commission .

2.   The chairperson of the Committee of European Insurance and Occupational Pensions Supervisors established by Commission Decision 2004/6/EC of 5 November 2003** shall participate at the meetings of the Committee as an observer.

3.   The Commission may invite experts and observers to attend its meetings.

4.   The secretariat of the Committee shall be provided by the Commission.

5.   The Committee shall adopt its own rules of procedure.

_________________

* OJ L 3, 7.1.2004, p. 34.

** OJ L 3, 7.1.2004, p. 30.

"

(3)   Article 2 is replaced by the following:

"

Article 2

Where acts adopted in the field of direct non-life insurance and direct life assurance, reinsurance and occupational pensions confer on the Commission powers for the implementation of the rules which they lay down, the "comitology" procedure laid down in Article 5 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission * shall apply, in compliance with Article 7(3) and Article 8 thereof.

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

___________________

* OJ L 184 of 17.7.1999, p. 23.

"

(4)   Articles 3 and 4 are deleted.

Article 6

Directive 92/49/EEC

In Article 40(10) of Directive 92/49/EEC, the words "submit to the Insurance Committee set up by Directive 91/675/EEC a report summarising" are replaced by the words "inform the European Insurance and Occupational Pensions Committee of".

Article 7

Directive 98/78/EC

Directive 98/78/EC is amended as follows:

(1)    In Article 10a(3), the words "The Commission and the Insurance Committee shall" are replaced by the words "Without prejudice to Article 300(1) and (2) of the Treaty, the Commission shall, with the assistance of the European Insurance and Occupational Pensions Committee".

(2)    In Article 11(5), the words "submit to the Insurance Committee" are replaced by the word "issue".

Article 8

Directive 2002/83/EC

Directive 2002/83/EC is amended as follows:

(1)   In Article 46(9), the words "the Commission shall submit to the Insurance Committee a report summarising " are replaced by the words "the Commission shall inform the Committee of".

(2)    Article 58 is replaced by the following:

"

Article 58

Information from Member States to the Commission

The competent authorities of the Member States shall inform the Commission and the competent authorities of the other Member States:

   a) of any authorisation of a direct or indirect subsidiary, one or more parent undertakings of which are governed by the laws of a third country;
   b) whenever such a parent undertaking acquires a holding in a Community assurance undertaking which would turn the latter into its subsidiary.

When the authorisation referred to in point (a) of the first paragraph is granted to the direct or indirect subsidiary of one or more parent undertakings governed by the law of a third country, the structure of the group shall be specified in the notification which the competent authorities shall address to the Commission and to the other competent authorities.

"

(3)    In Article 65, paragraphs 1 and 3 are deleted.

Chapter III

Amendments to Directives 85/611/EEC and 2001/34/EC on the securities sector

Article 9

Directive 85/611/EEC

Directive 85/611/EEC is amended as follows:

(1)  Article 6c is amended as follows:

   a) in paragraph 9, the last sentence is replaced by the following:"
Every two years the Commission shall issue a report on such cases. "
   b) in paragraph 10, the last sentence is replaced by the following:"
Every two years the Commission shall issue a report on such cases. "

(2)   In Article 14(6), the second subparagraph is deleted.

(3)   In Article 21(4), the last sentence is replaced by the following:

"Such information shall be the subject of exchanges of views within the European Securities Committee ."

(4)   In the third subparagraph of Article 22(4), the last sentence is replaced by the following:

"

Such communications may be the subject of exchanges of views within the European Securities Committee.

"

(5)   The title of Section X is replaced by the following:

"

European Securities Committee

"

(6)   Article 53 is deleted.

(7)   Article 53a is replaced by the following:

"

Article 53a

The technical amendments to be made to this Directive in the following areas, shall be adopted in accordance with the procedure referred to in Article 53b(2):

   a) clarification of the definitions in order to ensure uniform application of this Directive throughout the Community;
   b) alignment of terminology and the framing of definitions in accordance with subsequent acts on UCITS and related matters.

"

(8)   The following Article 53b is inserted:

"

Article 53b

1.   The Commission shall be assisted by the European Securities Committee instituted by Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse)*, hereinafter "the Committee

"

2.   Where reference is made to this paragraph, the "comitology" procedure laid down in Article 5 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission** shall apply, in compliance with Article 7(3) and Article 8 thereof.

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

______________

* OJ L 96, 12.4.2003, p. 16.

** OJ L 184 of 17.7.1999, p. 23."

Article 10

Directive 2001/34/EC

Directive 2001/34/EC is amended as follows:

(1)    Article 108 is deleted.

(2)    In Article 109(1), the term "Committee" is replaced by the term "European Securities Committee instituted by Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse)*.

___________________

* OJ L 96, 12.4.2003, p. 16."

Chapter IV

Amendment of Directive 2002/87/EC on financial conglomerates

Article 11

Directive 2002/87/EC

Article 19(2) of Directive 2002/87/EC is replaced by the following:

"

2.   Without prejudice to Articles 300(1) and (2) of the Treaty, the Commission shall, with the assistance of the European Banking Committee, the European Insurance and Occupational Pensions Committee and the Financial Conglomerates Committee, examine the outcome of the negotiations referred to in paragraph 1 and the resulting situation .

"

Chapter V

Final Provisions

Article 12

1.    The implementing measures adopted according to the procedure laid down in Article 5 of Decision 1999/468/EC in compliance with Article 7(3) and Article 8 thereof must not modify the essential provisions of the Directives.

2.    The period provided for in Article 5 (6) of Decision 1999/468/EC shall be three months.

3.    Should the conditions established under the Treaty governing the exercise of implementing powers conferred on the Commission be modified, the Commission shall review this Directive and, if appropriate, propose amendments. Such a review shall in any case be carried out by 31 December 2007 at the latest.

Article 13

Transposition

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by one month after its entry into force at the latest.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

Article 14

Entry into force

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

Article 15

Addressees

This Directive is addressed to the Member States.

Done at ,

For the European Parliament For the Council

The President The President

(1) Not yet published in OJ.
(2) OJ C …, …, p. …
(3) OJ C …, …, p. …
(4) OJ C …, …, p. …
(5) OJ C 58, 6.3.2004, p. 23.
(6) Position of the European Parliament of 31 March 2004.
(7) COM (1999) 232 final.
(8) OJ L 191,13.7.2001, p. 43.
(9) OJ L 191, 13.7.2001, p. 45.
(10) Directive 73/239/EEC of the Council of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (OJ L 228, 16.8.1973, p. 3). Directive as last amended by the 2003 Act of Accession.
(11) Directive 85/611/EEC of the Council of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (OJ L 375, 31.12.1985, p. 3). Directive as last amended by Directive 2004/39/EC of the European Parliament and of the Council (OJ L 145, 30.4.2004, p. 1).
(12) Directive 91/675/EEC of the Council of 19 December 1991 setting up an insurance committee (OJ L 374, 31.12.1991, p. 32). Directive amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10. 2003, p. 1).
(13) Directive 92/49/EEC of the Council of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance (third non-life insurance Directive) (OJ L 228, 11.8.1992, p. 1). Directive as last amended by Directive 2002/87/EC of the European Parliament and of the Council (OJ L 35, 11.2.2003, p. 1).
(14) Directive 93/6/EEC of the Council of 15 March 1993 on the on the capital adequacy of investments firms and credit institutions (OJ L 141, 11.6.1993, p. 1). Directive as last amended by Directive 2004/39/EC.
(15) Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes (OJ L 135, 31.5.1994, p. 5).
(16) Directive 98/78/EC of the European Parliament and of the Council of 27 October 1998 on the supplementary supervision of insurance undertakings in an insurance group (OJ L 330, 5.12.1998, p. 1). Directive as last amended by Directive 2002/87/EC.
(17) Directive 2000/12/EC of the European Parliament and of the Council of 20 March 2000 relating to the taking up and pursuit of the business of credit institutions (OJ L 126, 26.5.2000, p. 1). Directive as last amended by Commission Directive 2004/69/EC (OJ L 125, 28.4.2004, p. 44).
(18) Directive 2001/34/EC of the European Parliament and of the Council of 28 May 2001 on the admission of securities to official stock exchange listing and on information to be published on those securities (OJ L 184, 6.7.2001, p. 1). Directive as last amended by Directive 2003/71/EC (OJ L 345, 31.12.2003, p. 64).
(19) Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance (OJ L 345, 19.12.2002, p. 1).
(20) Directive 2002/87/EC of the European Parliament and of the Council of 16 December 2002 on the supplementary supervision of credit institutions, insurance undertakings and investment firms in a financial conglomerate (OJ L 35, 11.2.2003, p. 1).
(21) OJ C 284 E, 21.11.2002, p. 115 .
(22) OJ C 25 E, 29.1.2004, p. 382.
(23) OJ L 184, 17.7.1999, p. 23.
(24) OJ L 3, 7.1.2004, p. 36.
(25) OJ L 3, 7.1.2004, p. 28.
(26) OJ L 3, 7.1.2004, p. 34.
(27) OJ L 96, 12.4.2003, p. 16.


Sudan
European Parliament resolution on the Sudan
P5_TA(2004)0225 B5-0153/2004

The European Parliament ,

–   having regard to the ACP-EU Partnership Agreement signed in Cotonou on 23 June 2000(1) ,

–   having regard to the Constitution of the Republic of the Sudan adopted on 30 June 1998,

–   having regard to the International Covenant on Civil and Political Rights adopted on 16 December 1966,

–   having regard to Rule 104a and 104(4) of its Rules of Procedure,

A.   whereas its Committee on Development and Cooperation sent a delegation to the Sudan from 19 to 24 February 2004,

B.   whereas, during an attack on 27 February 2004 in the Tawilah area of Northern Darfur, 30 villages were burned to the ground, over 200 people were killed, over 200 women and girls were raped and a further 150 women and children were abducted,

C.   whereas, on 22 March 2004, the UN's humanitarian coordinator for the Sudan, Mukesh Kapila, drew attention to the humanitarian situation in Darfur, describing it as one of the worst in the world, with around 700 000 internally displaced persons (IDPs), 110 000 refugees in neighbouring Chad and over 10 000 deaths since the rebellion emerged in February 2003,

1.   Welcomes the progress in negotiations on a peace agreement between the Sudanese Government and the SPLM/A in Naivasha, Kenya;

2.   Draws attention to the political importance of the peace process between the Sudanese Government and the SPLM/A in bringing to an end one of the longest-running conflicts in Africa, which has claimed almost two million lives and displaced four million people;

3.   Insists, however, that peace in the Sudan can only be considered to be achieved when all parties involved in areas of conflict across the country agree to, and respect, a ceasefire, and when peace processes involving community and tribal leaders, MPs, civil society and women's groups as well as the warring factions have been undertaken and concluded, including in Darfur;

4.   Calls on the Government of the Sudan and the SPLM/A to finalise the peace agreement rapidly;

5.   Calls on all the parties to the conflict in Darfur to agree without delay on an immediate ceasefire and to open negotiations to end the conflict in the region;

6.   Welcomes the recent annoucement of scheduled talks between the Sudanese Government and the rebels; endorses the initiative of the Dutch Government, which is acting on behalf of the Council presidency in the Sudan, to facilitate talks between the different parties to the conflict, and asks the EU to maximise support throughout the international community for the intiative and to ensure that the ceasefire will have multilateral monitoring and that all relevant stakeholders, including community and tribal leaders, women's groups, MPs and civil society, will be involved in the peace process;

7.   Calls on the Commission and Member States to monitor carefully the situation in Darfur, to take the necessary steps to bring about a peaceful solution and to be consistent with the principles enshrined in the Cotonou agreement, notably with regard to respect for human rights, democratic principles and the rule of law;

8.   Welcomes the climate of détente in the Nuba Mountains following implementation of the cease-fire and notes with satisfaction the partial resumption of the free movement of people between the government and SPLM/A zones;

9.   Believes that the EU should support a possible UN peace support mission to be approved by the Security Council and believes there could be a role for EU peacekeepers and monitors, but that these should be proportionate to the needs and recognise the successes of the existing 'light touch' Joint Military Commission (JMC) in the Nuba Mountains;

10.   Calls on the Sudanese Government and the SPLM/A, once the peace agreement is concluded, to widen the scope of that agreement, in a spirit of national unity, to ensure the development of the whole country and to ensure that the distribution of wealth, including oil revenue, benefits all regions of the Sudan;

11.   Calls on any oil companies operating in the Sudan to ensure that people displaced by oil development in the past have the right to return to their homes and are paid full compensation for their removal and return or relocation, and that all oil companies are in full compliance with the Extractive Industries Transparency Initiative and the international voluntary security principles; calls on the Commission to monitor this in relation to its policies on corporate social responsibility;

12.  Recognises the importance of a quick resumption of European Union development aid, after the signature of the peace agreement, and the establishment of a monitored ceasefire in Darfur alongside the opening of negotiations, and calls for a step-by-step release of EDF funds dependent on a general improvement in democracy and respect for human rights in the Sudan, including:

   - an end to the government-led campaign of ethnic cleansing in the region of Darfur and the resumption of unrestricted access for humanitarian aid to the population at risk in the region,
   - the appointment of a deputy national authorising officer for the south of the country, with full authority modelled on the experience of Zanzibar in Tanzania,
   - greater recourse to the United Nations and international NGOs in delivering aid,
   - specific benchmarks building on those already established in the framework of the EU/Sudan Political Dialogue in relation to democracy, human rights and good governance, progress on which should be assessed in order to enable a gradual release of available funds,
   - making maximum use of existing horizontal budget lines and facilitating a transfer of monies from envelope A to envelope B for peacebuilding expenditure prior to the final signature and to reduce future delays in spending,
   - convening an international conference of NGOs committed to the Sudan in order to address capacity problems for delivery of future aid;

13.   Calls on the Commission to pay the utmost attention to ensuring a smooth transition between humanitarian aid, rehabilitation and development; considers it essential that the future Rehabilitation and Reconstruction Interventions supported by the EDF link up with relief interventions supported with ECHO funding; considers further that when the successful humanitarian actions have a 'development component' the Commission should support their extension with the EDF;

14.   Expresses deep sadness at the serious injury sustained by an NGO humanitarian aid worker undertaking EC-funded food distribution owing to a landmine on 5 February 2004, and underlines the importance of expanded landmines clearance programmes across the Sudan;

15.   Calls on the Sudanese authorities to end impunity for government officers and military personnel and to bring to justice the perpetrators of human rights violations and other crimes, for example the individuals, i.e. army personnel, who have been involved in rapes and murders, arms trafficking, including the Lord's Resistance Army (LRA), cattle theft and looting;

16.   Calls on the Government of the Sudan, the Sudan Liberation Movement (SLM) and the Justice and Equality Movement (JEM) to opt for the path of dialogue and negotiation and to refrain from resorting, directly or indirectly, to armed struggle to defend their interests;

17.   Criticises systematic delays and obstruction by the Government of the Sudan with regard to access by humanitarian aid workers, in violation of the principle of the neutrality of humanitarian aid, and calls on the Government of the Sudan and rebel groups operating in Darfur to allow the United Nations, other aid organisations and EC personnel or staff permanent access to all regions of Darfur without restriction and without delay; also calls on the Government of the Sudan to put in place arrangements to guarantee the safety of humanitarian aid workers and internally displaced persons (IDPs) in camps in government-controlled areas;

18.   Highlights the overwhelming evidence collected by the UN Resident and Humanitarian Coordinator, NGOs and journalists as to the Sudanese Government's complicity in the atrocities committed by the Janjaweed militia against civilians in Darfur;

19.   Notes with the utmost concern the recent public statement made by Dr Mukesh Kaplia, UN Resident and Humanitarian Coordinator, stating that the situation in Darfur is akin to the biggest humanitarian and human rights crisis or catastrophe in the world today and that the violence in Darfur appears to be particularly targeted at a specific group, based on their ethnic identity, and appears to be systemised;

20.   Strongly condemns the reported provision of financial, logistical and other support given to the Janjaweed militia by the Government of the Sudan, including for the indiscriminate bombing of civilians as reported on 8 and 12 March 2004, and calls on the Government to cease immediately all support to these militia, to take action to disband the Janjaweed and to stop all attacks on civilians;

21.   Calls for a no-fly zone to be put into place immediately over Darfur under the full supervision and monitoring of the UN, and calls on the Government of the Sudan to immediately ground all aircraft;

22.   Expresses deep concern at the fact that at least a million people have been affected by the recent violence in Darfur, including some 110 000 refugees in Chad and around 700 000 internationally displaced persons (IDPs);

23.   Calls on the Sudanese Government to protect its citizens in their villages, to ensure that IDPs are in a safe location where they have access to services, some livelihood and assistance, and to stop its reported policy of chasing Darfurians away from their rural homes towards Chad and to urban centres in the Darfur region;

24.   Strongly condemns the targeting by the Janjaweed militias of civilians in the villages and in centres for displaced persons, which includes killings, the use of sexual violence against women, looting and general harassment, as well as forced recruitment, including of children;

25.   Expresses its utmost concern at the continued reports of disappearances, abductions and rapes, which are clear violations of international law and tantamount to war crimes;

26.   Calls on all parties involved in the conflict to refrain from the recruitment and use of child soldiers under the age of 18;

27.   Calls on the UN to appoint a special representative of the Secretary-General for the Sudan to monitor the situation in Darfur, who would be responsible for overseeing a thorough investigation into the atrocities committed by the Janjaweed militias against civilians and for bringing the perpetrators to justice;

28.   Calls for the EU and other donors to do all they can to provide humanitarian assistance following the destruction perpetrated during the fighting in the Sudan and neighbouring countries, in particular Chad, and to protect and support IDPs and refugees;

29.   Calls on the governments of Chad, Libya and the Central African Republic to monitor the trade in small arms in the region more closely;

30.   Welcomes the improved relations between the Sudan and Uganda; calls on the Sudanese Government to do its utmost to prevent Joseph Kony's LRA terrorist group from operating out of Sudan;

31.   Notes with concern that the sanctions imposed for adultery under Sharia law are detrimental to women in particular, as the evidence requirements are virtually never satisfied in the case of men, whereas a pregnant woman is automatically considered guilty;

32.   Condemns the practises of flogging and amputation and all corporal punishment which is carried out in the Sudan, and points out that these are inconsistent with the country's obligations under the International Covenant on Civil and Political Rights, and the human rights benchmarks agreed in the framework of the EU/Sudan Political Dialogue;

33.   Considers that the application of elements of Sharia law is in breach of international law, including the International Covenant on Civil and Political Rights, to which the Sudan is a signatory;

34.   Calls on the Sudanese authorities to reform the system of prolonged imprisonment for unpaid fines (very often of women sentenced for alcohol production) and to ensure that prisoners on remand are given a speedy and fair trial and that the rights of the defence are respected, in accordance with Article 32 of the Constitution;

35.   Draws attention to the almost complete absence of freedom of speech, free media, or independent human rights infrastructures within the Sudan and calls on the Sudanese authorities, in line with the international instruments they have signed, to revise the working methodologies and the leading principles of the special military intelligence and internal security units set up during the war, such as the National Security Bureau, as soon as the peace agreement has been concluded;

36.   Instructs its President to forward this resolution to the Council, the Commission, the Government of the Sudan, the governments of the Member States, the US and Norway and the governments of the Sudan's neighbouring countries, the UN Secretary-General, and the Co-Presidents of the ACP-EU Joint Parliamentary Assembly and the ACP Council.

(1) OJ L 317, 15.12.2000, p. 3.


Internal combustion engines in agricultural and forestry tractors ***
European Parliament legislative resolution on the proposal for a Council decision on the position of the European Community on the draft Regulation of the United Nations Economic Commission for Europe concerning the uniform prescriptions applicable to the approval of internal combustion engines to be installed in agricultural and forestry tractors and in non-road mobile machinery, with regard to their net power, net torque and specific fuel consumption (COM(2003) 414 – 5924/2004 – C5-0151/2004 – 2003/0155(AVC))
P5_TA(2004)0226 A5-0223/2004

(Assent procedure)

The European Parliament ,

–   having regard to the proposal for a Council decision (COM(2003) 414 – 5924/2004)(1) ,

−   having regard to Council Decision 97/836/EC of 27 November 1997(2) ,

–   having regard to the request for assent submitted by the Council pursuant to Article 300(3), second subparagraph, of the EC Treaty (C5-0151/2004 ),

–   having regard to Rules 86(1), 97(7) and 158(1) of its Rules of Procedure,

–   having regard to the recommendation of the Committee on Industry, External Trade, Research and Energy (A5-0223/2004 ),

1.   Gives its assent to proposal for a Council decision;

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

(1) Not yet published in the OJ.
(2) OJ L 346, 17.12.1997, p. 78.


Political Dialogue and Cooperation Agreement with Central America *
European Parliament legislative resolution on the proposal for a Council decision on the conclusion of a Political Dialogue and Cooperation Agreement between the European Community and its Member States, of the one part, and the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama, of the other (COM(2003) 677 – C5-0658/2003 – 2003/0266(CNS))
P5_TA(2004)0227 A5-0120/2004

(Consultation procedure)

The European Parliament ,

–   having regard to the proposal for a Council decision (COM(2003) 677 )(1) ,

–   having regard to Article 181 of the EC Treaty in conjunction with Article 300(2), first subparagraph, first sentence, of the EC Treaty,

–   having regard to Article 300(3), first subparagraph, of the EC Treaty, pursuant to which the Council consulted Parliament (C5-0658/2003 ),

–   having regard to Rules 67 and 97(7) of its Rules of Procedure,

–   having regard to the report of the Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy and the opinions of the Committee on Development and Cooperation and the Committee on Industry, External Trade, Research and Energy (A5-0120/2004 ),

1.   Approves the conclusion of the agreement;

2.   Instructs its President to forward its position to the Council and the Commission and to the governments and parliaments of the Member States and of the republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama.

(1) Not yet published in OJ.


Political Dialogue and Cooperation Agreement with the Andean Community *
European Parliament legislative resolution on the proposal for a Council decision on the signature of a Political Dialogue and Cooperation Agreement between the European Community and its Member States, of the one part, and the Andean Community and its Member States, the Republics of Bolivia, Colombia, Ecuador, Peru and the Bolivarian Republic of Venezuela, of the other part (COM(2003) 695 – C5-0657/2003 – 2003/0268(CNS))
P5_TA(2004)0228 A5-0119/2004

(Consultation procedure)

The European Parliament ,

–   having regard to the proposal for a Council decision (COM(2003) 695 )(1) ,

–   having regard to Article 181 of the EC Treaty in conjunction with Article 300(2), first subparagraph, first sentence, of the EC Treaty,

–   having regard to Article 300(3), first subparagraph, of the EC Treaty, pursuant to which the Council consulted Parliament (C5-0657/2003 ),

–   having regard to Rules 67 and 97(7) of its Rules of Procedure,

–   having regard to the report of the Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy and the opinions of the Committee on Development and Cooperation and the Committee on Industry, External Trade, Research and Energy (A5-0119/2004 ),

1.   Approves conclusion of the agreement;

2.   Instructs its President to forward its position to the Council and the Commission, to the governments and parliaments of the Member States and of the Andean Community and its member states, the Republics of Bolivia, Colombia, Ecuador, Peru and the Bolivarian Republic of Venezuela.

(1) Not yet published in OJ.


Guarantee Fund for external actions *
European Parliament legislative resolution on the proposal for a Council regulation amending Regulation (EC, Euratom) No 2728/94 establishing a Guarantee Fund for external actions (COM(2003) 604 – C5-0502/2003 – 2003/0233(CNS))
P5_TA(2004)0229 A5-0199/2004

(Consultation procedure)

The European Parliament ,

–   having regard to the Commission proposal to the Council (COM(2003) 604 )(1) ,

–   having regard to Article 308 of the EC Treaty, pursuant to which the Council consulted Parliament (C5-0502/2003 ),

–   having regard to Rule 67 of its Rules of Procedure,

–   having regard to the report of the Committee on Budgets and the opinion of the Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy (A5-0199/2004 ),

1.   Approves the Commission proposal as amended;

2.   Calls on the Commission to alter its proposal accordingly, pursuant to Article 250(2) of the EC Treaty;

3.   Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;

4.   Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially;

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

Text proposed by the Commission   Amendments by Parliament
Amendment 1
RECITAL 3a (new)
(3a) Loans from the Euratom Guarantee Fund to third countries will in future, as hitherto, be granted only in accordance with Decision 94/179/Euratom 1 , which means that funds cannot be lent to a third country to finance new nuclear power stations but only for measures to increase the level of safety at existing nuclear power installations.
_____________________
( 1 ) Council Decision 94/179/Euratom of 21 March 1994 amending Decision 77/270/Euratom, to authorize the Commission to contract Euratom borrowings in order to contribute to the financing required for improving the degree of safety and efficiency of nuclear power stations in certain non- member countries (OJ L 84, 29.3.1994, p. 41).
Amendment 2
RECITAL 5a (new)
(5a) The fact that EIB loans to the accession countries will no longer be covered by the Guarantee Fund will create an additional margin for lending to other countries and/or regions under Decision 2000/24/EC 1 .
________________
( 1 ) Council Decision 2000/24/EC of 22 December 1999 granting a Community guarantee to the European Investment Bank against losses under loans for projects outside the Community (Central and Eastern Europe, Mediterranean countries, Latin America and Asia and the Republic of South Africa) (OJ L 9, 13.1.2000, p. 24).
Amendment 3
RECITAL 5b (new)
(5b) The additional margin, created as a result of accession, under the EIB lending mandate totals EUR 2 180 million. The Commission has brought forward a separate proposal for a Decision (COM(2003) 603 ) concerning the possible use of that amount.
Amendment 4
RECITAL 5c (new)
(5c) The amount paid into the Guarantee Fund, which corresponds to the loans no longer covered by it, totals approximately EUR 343 million and will flow back to the budget as revenue.
Amendment 5
ARTICLE 1, POINT 3
Article 7 (Regulation (EC, Euratom) No 2728/94)
(3)   In Article 7, the date "31 March" shall be replaced by "30 June".
(3)   In Article 7, the date "31 March" shall be replaced by "31 May" .

(1) Not yet published in OJ.


New Neighbourhood policy *
Proposal for a Council decision amending Decision 2000/24/EC to take into account the enlargement of European Union and the EU's Wider Europe -New Neighbourhood policy (COM(2003) 603 – C5-0501/2003 – 2003/0232(CNS))
P5_TA(2004)0230 A5-0198/2004

(Consultation procedure)

The proposal was amended as follows(1) :

Text proposed by the Commission   Amendments by Parliament
Amendment 1
RECITAL 4
(4)   A conditional extension of the general lending mandate of the European Investment Bank (EIB) to Russia and the Western New Independent States (WNIS) should be envisaged to support the policy based on the Commission Communication "Wider Europe – Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours.
(4)   A conditional extension of the general lending mandate of the European Investment Bank (EIB) to Russia and the Western New Independent States (WNIS) should be envisaged to support the policy based on the Commission Communication "Wider Europe – Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours", in accordance with the resolution of the European Parliament of 20 November 2003 thereon.
Amendment 2
RECITAL 4a (new)
(4a) Consideration should be given to including countries of the South Caucasus and Central Asia in the lending mandate after the year 2006.
Amendment 3
RECITAL 4b (new)
(4b) The necessary preparatory measures should be taken in order to include, as of the next generation of EIB lending mandates to enter into effect on 1 January 2008 at the latest, the following countries: Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan.
Amendment 4
RECITAL 8
(8)   The financial perspective for the period 2000 to 2006 according to the Interinstitutional Agreement of 6 May 1999 between the European Parliament, the Council and the Commission on budgetary discipline and improvement of the budgetary procedure envisages a ceiling for the loan guarantee reserve in the Community budget of EUR 200 million per annum.
(8)   The financial perspective for the period 2000 to 2006 according to the Interinstitutional Agreement of 6 May 1999 between the European Parliament, the Council and the Commission on budgetary discipline and improvement of the budgetary procedure envisages a ceiling for the loan guarantee reserve in the Community budget of EUR 200 million (at 1999 prices) per annum
Amendment 5
RECITAL 8a (new)
(8a) Close cooperation between the EIB and the Commission should ensure consistency and synergy with the EU's geographical cooperation programmes and ensure that EIB loan operations complement and strengthen the EU's policies for those regions.
Amendment 6
ARTICLE 1, POINT 1, POINT (A) POINT (II)
Article 1, paragraph 1, subparagraph 2, sentence 2 (Decision 2000/24/EC)
The overall ceiling of the credits opened shall be equivalent to EUR 19 760 million, broken down as follows:
The overall ceiling of the credits opened shall be equivalent to EUR 20 260 million, broken down as follows:
South-eastern Neighbours:
South-eastern Neighbours:
EUR 9 185 million,
EUR 9 185 million,
Mediterranean countries:
Mediterranean countries:
EUR 6 520 million,
EUR 6 520 million,
Latin America and Asia:
Latin America and Asia:
EUR 2 480 million,
EUR 2 480 million,
Republic of South Africa:
Republic of South Africa:
EUR 825 million,
EUR 825 million,
Special action supporting the consolidation and intensification of the EC-Turkey Customs Union:
Special action supporting the consolidation and intensification of the EC-Turkey Customs Union:
EUR 450 million,
EUR 450 million,
Russia and Western New Independent States (WNIS):
Russia and the Western New Independent States (WNIS):
EUR 300 million ;
EUR 800 million;
and shall be used by 31 January 2007 at the latest. The credits already signed shall be taken into account as a deduction from the regional ceilings. However, the effectiveness of the ceiling for Russia and the Western New Independent States (WNIS) shall be subject to these countries fulfilling specific conditions laid down by the Commission in accordance with the Commission communication "Wider Europe – Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours". The Commission shall authorise the release of the ceiling for Russia and the WNIS on a country by country basis. Nevertheless, concerning Russia, projects fulfilling the criteria specified in Article 2(3) of Council Decision 2001/777/EC shall be eligible as soon as the EUR 100 million ceiling of the Decision has been reached.
and shall be used by 31 January 2007 at the latest. The credits already signed shall be taken into account as a deduction from the regional ceilings. However, the effectiveness of the ceiling for Russia and the Western New Independent States (WNIS) shall be subject to these countries fulfilling specific conditions laid down by the Commission in accordance with the Commission communication "Wider Europe – Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours". The Commission shall authorise the release of the ceiling for Russia and the WNIS on a country by country basis. Nevertheless, concerning Russia, projects fulfilling the criteria specified in Article 2(3) of Council Decision 2001/777/EC shall be eligible as soon as the EUR 100 million ceiling of the Decision has been reached.
Amendment 7
ARTICLE 1, POINT 1, POINT (BA) (new)
Article 1, paragraph 3a (new) (Decision 2000/24/EC)
(ba)    The following paragraph 3a shall be added:
"3a. The EIB is invited to prepare feasibility studies on the inclusion in the lending mandate, as from 2007, of countries of the South Caucasus and Central Asia."

(1) The matter was then referred back to committee pursuant to Rule 69(2) (A5-0198/2004 ).


Macro-financial assistance to Albania *
European Parliament legislative resolution on the proposal for a Council decision on providing macro-financial assistance to Albania and repealing Decision 1999/282/EC (COM(2003) 834 – C5-0048/2004 – 2003/0330(CNS))
P5_TA(2004)0231 A5-0225/2004

(Consultation procedure)

The European Parliament ,

–   having regard to the Commission proposal to the Council (COM(2003) 834 )(1) ,

–   having regard to Article 308 of the EC Treaty, pursuant to which the Council consulted Parliament (C5-0048/2004 ),

–   having regard to Rule 67 of its Rules of Procedure,

–   having regard to the report of the Committee on Industry, External Trade, Research and Energy and the opinions of the Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy and the Committee on Budgets (A5-0225/2004 ),

1.   Approves the Commission proposal as amended;

2.   Calls on the Commission to alter its proposal accordingly, pursuant to Article 250(2) of the EC Treaty;

3.   Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;

4.   Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially;

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

Text proposed by the Commission   Amendments by Parliament
Amendment 2
Recital 3a (new)
(3a) This financial support, in particular the grant component, will be provided after verifying whether the financial and political conditions laid down can be fulfilled.
Amendment 1
Recital 4a (new)
(4a) The IMF has completed the third review under Albania's PRGF.
Amendment 3
Recital 11
(11)   The inclusion of a grant component in this assistance is without prejudice to the powers of the budgetary authority.
(11)   The inclusion of a grant component in this assistance is without prejudice to the powers of the budgetary authority. The grant component will be made available in accordance with Article 6(4) of Regulation (EC) No 2666/2000 1 (CARDS).
_____________
1 OJ L 306, 7.12.2000, p. 1.
Amendment 4
Recital 12a (new)
(12a) This kind of assistance, including both the long term loan and the grant component, is highly exceptional and in no way constitutes a precedent for the future.
Amendment 5
Article 2, paragraph 1
1.   The Commission is empowered to agree with the authorities of Albania, after consultation with the Economic and Financial Committee the economic policy and financial conditions attached to this assistance to be laid down in a Memorandum of Understanding. These conditions shall be consistent with the agreements referred to in Article 1(4).
1.   The Commission is empowered to agree with the authorities of Albania, after consultation with the Economic and Financial Committee, the economic policy and financial conditions attached to this assistance, to be laid down in a Memorandum of Understanding. These conditions shall be consistent with the agreements referred to in Article 1(4). The European Parliament shall be informed of the final text agreed in the Memorandum of Understanding.
Amendment 6
Article 2, paragraph 3a (new)
3a. In particular, the Commission will monitor and assist with improvements in revenue mobilisation through tax policy and administration and the consequent reduction in the size of the grey economy, in that this will contribute significantly to filling the current gap in revenues which external macro-financial assistance, such as this grant and loan, must cover.

(1) Not yet published in OJ.


Governance in the European Union's development policy
European Parliament resolution on Governance in the European Union's development policy (2003/2164(INI))
P5_TA(2004)0232 A5-0219/2004

The European Parliament ,

–   having regard to the Communication from the Commissionto the Council, the European Parliament and the European Economic and Social Committee - Governance and development (COM(2003) 615 ),

–   having regard to the conclusions of the Council meeting of 17 November 2003 on that Communication(1) ,

–   having regard to Articles 177, 178, 179, 180, 181, and 181a of the Treaty establishing the European Community,

–   having regard to the Human Development Report 2003 of the United Nations' Development Programme,

–   having regard to the Communication from the Commission to the Council and the European Parliament "Democratisation, the Rule of Law, Respect for Human Rights and Good Governance: the Challenges of the Partnership between the European Union and the ACP States" (COM(1998)146 ) and its resolution of 15 January 1999 on that communication(2) ,

–   having regard to its resolution of 25 April 2002 on the communication from the Commission to the Council and the European Parliament on the programme of action for the mainstreaming of gender equality in Community development cooperation(3) ,

–   having regard to its resolution of 25 April 2002 on the Communication from the Commission to the Council and the European Parliament "The European Union's Role in Promoting Human Rights and Democratisation in Third Countries"(4) ,

–   having regard to its resolution of 15 May 2003 on capacity-building in the developing countries(5) ,

–   having regard to the Commission's White Paper on European governance(6) ,

–   having regard to Council Common Position 98/530/CFSP of 25 May 1998 concerning human rights democratic principles, the rule of law and good governance in Africa(7) ,

–   having regard to the Council Regulation (EC) No 976/1999 of 29 April 1999 on laying down the requirements for the implementation of development cooperation operations which, within the framework of Community cooperation policy, contribute to the general objective of developing and consolidating democracy and the rule of law and to that of respecting human rights and fundamental freedoms in third countries(8) ,

–   having regard to its resolution of 4 September 2003 on the communication from the Commission to the Council, the European Parliament and the Economic and Social Committee on participation of non-state actors in EC development policy(9) ,

–   recalling the Millennium Development Goals and targets expressed in the UN Millennium Declaration, adopted at the UN Millennium Summit, which was held from 6 to 8 September 2000, in which it was affirmed that success in reaching MDGs in a country depends, inter alia, on good governance and in which a commitment to good governance, development and poverty reduction - nationally and internationally was expressed,

–   recalling the Council and European Commission Joint Declaration of 10 November 2000 on the European Community's Development Policy, which identified institutional capacity-building in the sphere of good governance as one of the six priority areas of the EC Development Policy,

–   having regard to the report of the OECD on how globalisation improves governance(10) ,

–   recalling the Council Conclusions on the Monterrey International Conference on Financing for Development that was adopted on 22 March 2002, and which emphasised that developing countries had primary responsibility to create a sound macro-economic environment and an appropriate framework for investments,

–   recalling the Johannesburg plan of implementation which inter alia states that "good governance at national and international level is essential for sustainable development",

–   recalling the Council conclusions of 30 May 2002 which welcomes the Commission's proposals to deepen its work on governance as one of the priority areas of the Community development policy and in particular the establishment of an experts group with the Member States with a view to defining a consistent and common EU approach to these issues in order to establish a policy framework based on the links between democracy, good governance and development with partner countries and in association with non-state actors,

–   recalling that the ACP-EU Cooperation Partnership Agreement, signed in Cotonou on 23 June 2000(11) , and, in particular, Article 9(3) thereof, which lays down an effective approach to governance,

–   having regard to Rule 163 of its Rules of Procedure,

–   having regard to the report of the Development and Cooperation Committee (A5-0219/2004 ),

A.   whereas the concept of good governance is a critical determinant of a country's ability to achieve economically, socially and environmentally sustainable development, and whereas it goes beyond the notions of human rights, rule of law and democracy, encompasses efficient administration and the fight against corruption and ultimately concerns the state's ability to serve the citizens through efficient and transparent natural- and human-resource management,

B.   whereas the Commission wants to support governance in developing countries, building on dialogue and capacity-building and insists that there is no "one-size fits all" solution, and governance should be analysed and promoted on a country-specific basis;

C.   whereas the poor state of government policy and administrative systems in many developing countries are major constraints to sustainable development;

D.   whereas governance is a core element of the development strategy of both the international donor community and the EU development agenda and an integral part of the poverty reduction strategy processes;

E.   whereas the introduction of the concept of governance in the development agenda at the end of the 1980s reflected growing concerns over the effectiveness of aid and it has become clear that aid policies are in dire need of reform;

F.   whereas in the past, development aid has too often been given without due consideration to the priorities of the receiving country and its actors and sometimes to undemocratic regimes, and whereas this has resulted in macroeconomic imbalances and a waste of resources, an overdependence on aid and a decreased incentive to economic reform, and also in corrupt regimes staying in power by using development aid to serve their own purposes;

G.   whereas conditionality has largely failed to obtain its desired objective to bring about sustained policy reforms;

H.   whereas some sort of conditionality is nevertheless necessary as the donor community must be accountable to EU citizens, who are calling for the targeting and monitoring of aid to be improved;

I.   whereas new thinking on aid has already changed the aid policies of international donors, leading them to concentrate their aid on countries that have displayed a good record of macro-economic and governance policy;

J.   whereas aid is most effective if it is either more systematically targeted at poor countries with sound economic reform programmes or used to promote good policies;

K.   recalling that since the early 90s a human right "essential element" clause has been systematically included in EC agreements with third countries, including trade and cooperation accords and association agreements;

L.   whereas democracy and good governance are linked, and whereas each society should generate its own home-grown arrangements for forging ahead with democracy;

M.   whereas gender equality and women's empowerment are essential ingredients of good governance;

N.   whereas, by promoting good governance, the EU is addressing one of the important root causes of migration, marginalisation, civic unrest and armed conflict;

O.   whereas poverty reduction is impossible without action by poor people, and their participation is essential in the kind of governance the international community would wish to see;

P.   whereas, since local governments and political decision makers are closest to the people, they need to be involved in the process of strengthening governance and democracy;

1.   Welcomes the Commission's broad, open and pragmatic approach to what is a critical determinant in states' ability to eradicate poverty and foster sustainable development;

2.   Welcomes the Commission's stance that governance must be characterised by dialogue and capacity-building;

3.   Considers that the withholding of assistance should be reserved for cases either where persistent violations of men, women and children's universal basic rights are not being addressed by the government, or where the government itself directly perpetrates such violations;

4.   Stresses in this regard that the dialogue should be continued and that in all cases humanitarian assistance and food aid has to be maintained;

5.   Considers it important to focus on specific, pragmatic and concrete ways to transform these principles into programmes, policies and actions, based on developing countries' own national experiences and on active participation of civil society organisations, including networks of cooperating civic authorities;

6.   Calls on the Commission to assure the follow-up of th Communication on governance and development and to develop the principles set out therein and turn them guidelines and to set out in the Annual Report how governance has been addressed;

7.   Considers the different scenarios presented in that Commission communication as a good framework when analysing and further defining a policy framework for increasing consistency between EC and Member States' approaches to governance;

8.   Considers that the EC policy on governance should be integrated in development and related instruments including the projects, sector-programmes, budget support and trade agreements; stresses, in this context, the key importance of improved assessments of the efficacy of individual developing countries' development plans to improve external trade and to stop inefficient use or waste of resources and unnecessary debt and to improving external trade;

9.   Considers that donors may cede control to the recipient country, within the framework of agreed objectives and if transparency and adequate monitoring are assured; considers, in this regard, that budget support, where appropriate, can be a valuable instrument to promote governance through improvements, both in public financial management and in the function of public services;

10.   Stresses that governance indicators should be tailored to the specific needs of the partner country;

11.   Insists that a flexible approach is requested as the scenarios defined by the Commission may in some cases overlap and requests an adequate adaptation of EU policy to the country concerned;

12.   Considers the work on difficult partnerships a particularly important challenge for the EU and stresses that particular attention should be devoted to elaborating effective strategies for these partnerships and in post-conflict situations;

13.   Welcomes the Commission's position that donors cannot afford to totally abandon poor performers as populations should not pay the price for the lack of commitment of their governments;

14.   Calls on the Commission to focus more specifically on issues of accountability and transparency, as weak accountability mechanisms tend to facilitate corruption and thereby undermine good governance;

15.   Considers that the principle of "corporate social responsibility" has to be better shaped, in particular with regard to children's work, in order to create a healthy investment climate;

16.   Considers that specific social indicators should be devised for the purpose of obtaining more precise data concerning the governance achieved by the countries in question and calls for civil society to be more extensively involved in this area;

17.   Considers that more enhanced views on human rights and fundamental freedoms are necessary;

18.   Calls on the Commission to pay particular attention to the freedom of expression and assembly, in order to allow political parties in opposition to freely express their views and to allow for independent media;

19.   Stresses that greater emphasis has to be placed on the need for the EU to broaden the perception of strengthening democracy at local, provincial and national levels; underlines the importance of decentralisation and local government institutions, with the aim of bringing state administration closer to the people and calls for strategies which will enable effective local-level governance to develop;

20.   Stresses, in this regard, the importance of pursuing electoral and parliamentary reforms, beyond the establishment of multi-party electoral systems, to ensure more extensive and effective political activity among the population; is aware that in some countries this is a long-term goal;

21.   Points to the basic function which may be perfomed by the European Union in assisting and monitoring electoral processes as a way of contributing to improving democracy in the countries concerned;

22.   Stresses that in the context of good governance it is essential to put an end to impunity;

23.   Points out that it is therefore essential to set up an independent judicial system and provide easy access to justice and public information for citizens;

24.   Points out that education is a very important to all to empower civil society to take part in promoting governance and democracy at each governmental level;

25.   Stresses that gender mainstreaming, a major tool in governance, is not properly prioritised in the Communication on governance and development ; calls for the EU to integrate a gender-based approach in the analysis of governance as in terms of poverty eradication it is essential that the gender aspects of the causes of poverty are explicitly included in the analysis of poverty;

26.   Stresses that increased attention should be paid to the role of the private sector in fostering good governance and voluntary control of corruption, as tackling corruption is an essential element of a framework within which economies can prosper and be fully integrated in the multilateral trading system;

27.   Points out that the sound management of immigration is an important factor in ensuring overall good governance and calls, in this regard, for an improvement of the dialogue with developing countries;

28.   Calls on the EU to support capacity-building for governments and civil society, to place emphasis on strengthening the organisational, institutional and networking capacity of developing-country NGOs and to support independent media;

29.   Is of the opinion that in order to offer the necessary support for capacity building there is a need for well-trained staff at delegation level;

30.   Calls for improved cooperation with UN, OECD, World Bank and other international donors concerning assistance for good governance programmes and in particular for improved coherence between donor and macro-economic policies;

31.   Stresses that the NEPAD programme, an own-African initiative, is a major instrument to assess good governance in African countries;

32.   Instructs its President to forward this resolution to the Council and the Commission.

(1) DEVGEN 144/ Doc. 14773/03.
(2) OJ C 104, 14.4.1999, p. 185.
(3) OJ C 131 E, 5.6.2003, p. 153.
(4) OJ C 131 E, 5.6.2003, p. 147.
(5) OJ C 67 E, 17.3.2004, p 255.
(6) OJ C 287, 12.10.2001, p. 1.
(7) OJ L 158, 2.6.1998, p. 1.
(8) OJ L 120, 8.5.1999, p.8.
(9) P5_TA(2003)0380.
(10) CD/DOC (2001)13.
(11) OJ L 317, 15.12.2000, p. 3.


Environmental liability ***III
European Parliament legislative resolution on the joint text approved by the Conciliation Committee for a European Parliament and Council directive on environmental liability with regard to the prevention and remedying of environmental damage (PE-CONS 3622/2004 – C5-0079/2004 – 2002/0021(COD))
P5_TA(2004)0233 A5-0139/2004

(Codecision procedure: third reading)

The European Parliament ,

–   having regard to the joint text approved by the Conciliation Committee and the relevant Commission statement (PE-CONS 3622/2004 – C5-0079/2004 ),

–   having regard to its position at first reading(1) on the Commission proposal to Parliament and the Council (COM(2002) 17 )(2) ,

–   having regard to its position at second reading(3) on the Council common position(4) ,

–   having regard to the Commission's opinion on Parliament's amendments to the common position (COM(2004) 55 - C5-0044/2004 ),

–   having regard to Article 251(5) of the EC Treaty,

–   having regard to Rule 83 of its Rules of Procedure,

–   having regard to the report of its delegation to the Conciliation Committee (A5-0139/2004 ),

1.   Approves the joint text and draws attention to the Commission statement thereon;

2.   Instructs its President to sign the act with the President of the Council pursuant to Article 254(1) of the EC Treaty;

3.   Instructs its Secretary-General duly to sign the act and, in agreement with the Secretary-General of the Council, to have it published, together with the statement by the Commission thereon, in the Official Journal of the European Union;

4.   Instructs its President to forward this legislative resolution to the Council and Commission.

(1) Texts Adopted, 14.5.2003, P5_TA(2003)0211.
(2) OJ C 151 E, 25.6.2002, p. 132.
(3) Texts Adopted, 17.12.2003 P5_TA(2003)0575.
(4) OJ C 277 E, 18.11.2003, p. 10.


Feed hygiene ***I
Resolution
Consolidated text
European Parliament legislative resolution on the proposal for a regulation of the European Parliament and of the Council laying down requirements for feed hygiene (COM(2003) 180 – C5-0175/2003 – 2003/0071(COD))
P5_TA(2004)0234 A5-0133/2004

(Codecision procedure: first reading)

The European Parliament ,

–   having regard to the Commission proposal to the European Parliament and to the Council (COM(2003) 180 )(1) ,

–   having regard to Articles 251(2), 37(2) and 152(4) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C5-0175/2003 ),

–   having regard to Rule 67 of its Rules of Procedure,

–   having regard to the report of the Committee on the Environment, Public Health and Consumer Policy and the opinion of the Committee on Agriculture and Rural Development (A5-0133/2004 ),

1.   Approves the Commission proposal as amended;

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

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

Position of the European Parliament adopted at first reading on 31 March 2004 with a view to the adoption of Regulation (EC) No .../2004 of the European Parliament and of the Council laying down requirements for feed hygiene

P5_TC1-COD(2003)0071


THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 37(2) and Article 152 (4)(b) thereof,

Having regard to the proposal from the Commission(2) ,

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

Having regard to the opinion of the Committee of the Regions(4) ,

Acting in accordance with the procedure laid down in Article 251 of the Treaty(5) ,

Whereas:

(1)   Livestock production plays a very important part in the agricultural sector of the Community. Satisfactory results depend to a large extent on the use of safe and good quality feed.

(2)   The pursuit of a high level of protection of human health and animal health is one of the fundamental objectives of food law, as laid down in Regulation (EC) No 178/2002 of the European Parliament and the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety(6) . That Regulation also lays down other common principles and definitions for national and Community food law, including the aim of achieving free movement of feed within the Community.

(3)   Council Directive 95/69/EC of 22 December 1995 laying down the conditions and arrangements for approving and registering certain establishments and intermediaries operating in the animal feed sector and amending Directives 70/542/EEC, 74/63/EEC, 79/373/EEC and 82/471/EEC(7) established the conditions and arrangements applicable to certain categories of establishments and intermediaries in the animal feed sector to enable them to exercise their activities. Experience has shown that these conditions and arrangements constitute a sound basis for ensuring feed safety.

(4)   Commission Directive 98/51/EC of 9 July 1998 laying down certain measures for implementing Council Directive 95/69/EC laying down the conditions and arrangements for approving and registering certain establishments and intermediaries operating in the animal feed sector(8) established certain measures for implementing Council Directive 95/69/EC, including arrangements for imports from non-member countries.

(5)   Council Directive 95/69/EC established conditions for the approval of establishments producing certain substances listed in Council Directive 82/471/EEC of 30 June 1982 concerning certain products used in animal nutrition (9) .

(6 )   Experience has also shown that it is necessary to ensure that all feed businesses including aquaculture operate in conformity with harmonised safety requirements and that it is necessary to conduct a general review to take into account the need to ensure a higher level of protection of animal and human health, and of the environment.

(7 )  The principal objective of the new hygiene rules set out in this Regulation is to ensure a high level of consumer protection with regard to feed and food safety, taking particular account of the following principles:

   a) that primary responsibility for feed safety rests with the feed business operator;
   b) the need to ensure feed safety throughout the food chain, starting with primary production of feed up to and including the feeding of food-producing animals;
   c) the general implementation of procedures based on the principles of hazard analysis and critical control points (HACCP) which, together with the application of good hygiene practice, should reinforce feed business operators" responsibility;
   d) that guides to good practice are a valuable instrument to help feed business operators at all levels of the feed chain comply with feed hygiene rules and with the application of HACCP principles;
   e) the establishment of microbiological criteria based on scientific risk criteria;
   f) the need to ensure that imported feed attains a standard that is at least equivalent to that of feed produced in the Community.

(8)    In order to ensure the complete application of the registration and approval system to all feed business operators and, consequently, to guarantee full traceability it is appropriate to ensure that feed business operators only source and use feed from establishments which are registered and/or approved in accordance with this Regulation.

(9)   An integrated approach is necessary to ensure feed safety from and including primary production of feed up to and including the placing on the market or export of feed. The primary production of feed includes products which only undergo simple physical treatment such as cleaning, packaging, storage, natural drying or ensiling.

(10)   In accordance with the principles of proportionality and subsidiarity, it is appropriate that Community rules do not apply to certain cases of private domestic production of feed and feeding of certain animals nor to the direct supply of small quantities of primary production of feed at local level and the retailing of pet food.

(11)   It is necessary that feed hazards present at the level of primary production of feed be identified and adequately controlled to ensure that the objectives of this Regulation are met. The fundamental principles of the rules in this Regulation should therefore apply to farms which manufacture feed solely for the requirements of their own production, as well as to farms which place feed on the market. It is necessary to take into consideration the fact that the risk is less if feed is produced and used for animals only used for domestic consumption or for animals which are not used at all in food production. The trade of small quantities of feed products at local level and the retailing of petfood shall have particular treatment in the framework of this Regulation.

(12)   The application of HACCP principles to primary production of feed is the medium-term objective of European hygiene legislation . But guides to good practice should already be encouraging the use of appropriate hygiene requirements.

(13)   Feed safety depends on a number of factors. Legislation should lay down minimum hygiene requirements. Official controls should be in place to check feed business operators" compliance. In addition, feed business operators should take measures or adopt procedures to achieve a high level of feed safety.

(14)   HACCP can help feed business operators attain a higher standard of feed safety. HACCP should not be regarded as a method of self-regulation and does not replace official controls.

(15)   The implementation of the HACCP principles requires the full co-operation and commitment of feed businesses" employees.

(16)   HACCP in feed production should take into account the principles contained in the Codex Alimentarius, but should allow sufficient flexibility in all situations. In certain feed business, it is not possible to identify critical control points and, in some cases, good practices can replace the monitoring of critical control points. Similarly, the requirement to establish "critical limits" does not require a numerical limit to be fixed in every case. The requirement to retain documents needs to be flexible to avoid undue burdens for very small businesses. It is appropriate to ensure that operations carried out by a feed business at the level of primary production of feed, including associated operations as well as the mixing of feed with complementary feedingstuffs for the exclusive requirements of its own holding, are not obliged to follow the HACCP.

(17)   Flexibility is also necessary to accommodate the needs of feed businesses situated in regions suffering from special geographical constraints or in respect of structural requirements. But such flexibility should not compromise feed hygiene objectives. Provision should be made for discussion within the Standing Committee on the Food Chain and Animal Health where appropriate.

(18)   A system of registration and approval by the competent authority of the Member State of all feed businesses is appropriate to ensure traceability from manufacturer to final user and to facilitate the implementation of effective official controls. The existing systems for collection of data concerning feed businesses may be used by the competent authorities of Member States to start up and implement the system provided for in this Regulation.

(19)   It is appropriate that an approval system for feed businesses be maintained for activities which can present a higher risk in the manufacture of feed. Provision should be made for procedures to extend the current scope of the approval system as presently provided for in Directive 95/69/EC

(20)   In order to be registered or approved, feed businesses should meet several conditions relevant to their operations concerning facilities, equipment, personnel, production, quality control, storage, and documentation to ensure both feed safety and product traceability. Provision should be made for these conditions to be varied to ensure that they are appropriate to the various types of feed business. It is appropriate to allow Member States to grant conditional approval of establishments if it appears from the on-site visit that the establishment meets all the infrastructure and equipment requirements. However, it is also appropriate to set a maximum length of time for such conditional approval.

(21)   Provision should be made for temporarily suspending, amending or revoking registration or approval where establishments change or cease their activities or no longer fulfil the conditions applicable to their activity .

(22 )   The traceability of feed and feed ingredients throughout the feed chain is an essential element in ensuring feed safety. Regulation (EC) No 178/2002 contains rules to ensure the traceability of feed and feed ingredients and provides a procedure for the adoption of implementing rules applicable to specific sectors.

(23 )   Successive feed crises have shown that failures at any stage in the feed chain can have important economic consequences. Feed production and its complex distribution chain does not make the withdrawal of feed from the market an easy task. The costs of rectifying the economic damage along the feed and food chain is often borne by public funds. The remedying of this economic consequence at a low cost to society could be improved if the operator whose activity causes economic damage in the feed sector is held financially responsible. However, establishing a general mandatory system of financial liability and financial guarantees, for example through insurance, which applies to all feed business operators, may not be feasible or appropriate. The Commission should therefore consider this issue in greater depth, taking into account provisions in existing legislation with regard to liability in other spheres, as well as existing systems and practices amongst the Member States. To this end, the Commission should present a report, accompanied where appropriate by legislative proposals.

(24 )   Feed imported into the Community must satisfy the general requirements laid down in Regulation (EC) No 178/2002 and the import conditions laid down in Regulation (EC) No .../... of the European Parliament and of the Council of ... [on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules] (10) . In order to avoid trade disruptions it is appropriate that, pending the completion of the implementing measures, imports should continue to be authorised under the conditions laid down in Directive 98/51/EC.

(25 )   Community products exported to third countries must satisfy the general requirements laid down in Regulation (EC) No 178/2002.

(26)    It is appropriate to broaden the scope of the Rapid Alert System for Food and Feed laid down by Regulation (EC) No 178/2002 to include risks to animal health or the environment from feed used for non-food-producing animals.

(27)   Scientific advice must underpin Community legislation on feed hygiene. To this end, the European Food Safety Authority should be consulted whenever necessary.

(28)   To take account of technical and scientific progress, there should be close and effective co-operation between the Commission and the Member States within the Standing Committee on the Food Chain and Animal Health.

(29)   This Regulation takes account of international obligations laid down in the WTO Sanitary and Phytosanitary Agreement and the international food safety standards contained in the Codex Alimentarius.

(30)   Directives 95/69/EC and 98/51/EC should be repealed .

(31 )   The Member States should lay down rules on penalties applicable to infringements of the provisions of this Regulation and ensure that they are implemented. Those penalties must be effective, proportionate and dissuasive.

(32 )   It is appropriate to provide for a deferred date of application of the Regulation to allow the feed businesses affected by it time to adapt.

(33 )   The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(11) ,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

SUBJECT MATTER, SCOPE AND DEFINITIONS

Article 1

Subject matter

This Regulation lays down:

   a) general rules on feed hygiene;
   b) conditions and arrangements ensuring traceability of feed;
   c) conditions and arrangements for registration and approval .

Article 2

Scope

1.  This Regulation shall apply to:

   a) the activities of feed business operators at all stages, from and including primary production of feed up to and including the placing on the market of feed;
   b) the feeding of food-producing animals;
   c) imports of feed from and exports to third countries.

2.  This Regulation shall not apply to:

  a) the private domestic production of feed
   for food-producing animals for private domestic consumption and
   for animals not kept for food production;
   b) the feeding of food-producing animals for private domestic consumption or for the activities mentioned in Article 1(2)(c) of Regulation (EC) No .../2004 of the European Parliament and of the Council of ... [on the hygiene of foodstuffs] (12) ;
   c) the feeding of animals not kept for food production;
   d) the direct supply of small quantities of primary production of feed at local level by the producer to local farms for use on those farms ;
   e) the retailing of petfood.

3.   Member States may establish rules and guidance governing the activities referred to in paragraph 2. Such national rules and guidance shall ensure the achievement of the objectives of this Regulation.

Article 3

Definitions

For the purposes of this Regulation, the definitions in Regulation (EC) No 178/2002 shall apply subject to these specific definitions:

   a) "feed hygiene" means the measures and conditions necessary to control hazards and to ensure fitness for animal consumption of a feed, taking into account its intended use;
   b) "feed business operator" means the natural or legal person responsible for ensuring that the requirements of the present Regulation are met within the feed business under their control;
   c) "feed additives" means substances or micro-organisms authorised under Regulation (EC) No 1831/2003 of the European Parliament and of the Council of 22 September 2003 on additives for use in animal nutrition(13) ;
   d) "establishment" means any unit of a feed business;
   e) "competent authority" means the authority of a Member State or a third country designated to carry out official controls;
   f) "primary production of feed" means the production of agricultural products, including in particular growing, harvesting, milking, rearing of animals (prior to their slaughter) or fishing resulting exclusively in products which do not undergo any other operation following their harvest, collection or capture, apart from simple physical treatment.

CHAPTER II

OBLIGATIONS

Article 4

General obligations

1.   Feed business operators shall ensure that all stages of production, processing and distribution under their control are carried out in accordance with applicable Community legislation, national law compatible therewith and good practice, and in particular that they satisfy the relevant hygiene requirements laid down in this Regulation.

2.   When feeding food-producing animals, farmers shall take measures and adopt procedures to keep the risk of biological, chemical and physical contamination of feed, animals and animal products as low as reasonably achievable.

Article 5

Specific obligations

1.  For operations at the level of primary production of feed and the following associated operations:

   a) the transport, storage and handling of primary products at the place of production ,
   b) transport operations to deliver primary products from the place of production to an establishment,
   c) mixing of feed for the exclusive requirements of its own holding without using additives or premixtures of additives with the exception of silage additives,
feed business operators shall comply with the provisions in Annex I, where relevant for the operations carried out.

2.   For operations other than those referred to in paragraph 1, including mixing of feed for the exclusive requirements of their own holding when using additives or premixtures of additives with the exception of silage additives, feed business operators shall comply with the provisions in Annex II, where relevant for the operations carried out .

3.  Feed business operators shall:

   a) comply with specific microbiological criteria;
   b) take measures or adopt procedures necessary to meet specific targets.

The criteria and targets referred to in points (a) and (b) shall be adopted in accordance with the procedure referred to in Article 31 (2).

4.   Feed business operators may use the guides provided for in Articles 20 to 22 to help them comply with their obligations under this Regulation.

5.   Farmers shall comply with the provisions set out in Annex III when feeding food-producing animals.

6.    Feed business operators and farmers shall only source and use feed from establishments which are registered and/or approved in accordance with this Regulation.

Article 6

Hazard analysis and critical control points (HACCP) system

1.   Feed business operators carrying out operations other than those referred to in Article 5(1) shall put in place, implement and maintain a permanent written procedure or procedures based on the principles of hazard analysis and critical control points (HACCP).

2.  The HACCP principles referred to in paragraph 1 are:

   a) to identify any hazards that must be prevented, eliminated or reduced to acceptable levels,
   b) to identify the critical control points at the step or steps at which control is essential to prevent or eliminate a hazard or reduce it to acceptable levels,
   c) to establish critical limits at critical control points which separate acceptability from unacceptability for the prevention, elimination or reduction of identified hazards,
   d) to establish and implement effective monitoring procedures at critical control points,
   e) to establish corrective action when monitoring indicates that a critical control point is not under control,
   f) to establish procedures to verify that the measures outlined in points (a) to (e) are complete and working effectively. Verification procedures shall be carried out regularly;
   g) to establish documents and records commensurate with the nature and size of the feed businesses to demonstrate the effective application of the measures outlined in points (a) to (f).

3.   When any modification is made to a product, process, or any stage of production, processing, storage and distribution, feed business operators shall review their procedure and make the necessary changes.

4.   As part of the system of procedures referred to in paragraph 1, feed business operators may use guides to good practice in conjunction with guides on the application of HACCP, as developed in accordance with Article 20.

5.   Measures to facilitate the implementation of this Article, including for small businesses, may be adopted in accordance with the procedure referred to in Article 31(2).

Article 7

Documents concerning the HACCP system

1.  Feed business operators shall:

   a) provide the competent authority with evidence of their compliance with Article 6 in the form requested by the competent authority;
   b) ensure that any documents describing the procedures developed in accordance with Article 6 are up-to-date at all times.

2.   The competent authority shall take into account the nature and size of the feed business where fixing requirements as to the form referred to in paragraph 1(a).

3.   Detailed arrangements for the implementation of this Article may be adopted in accordance with the procedure referred to in Article 31(2) . Such arrangements may facilitate certain feed business operators" implementation of HACCP principles developed in accordance with Articles 20 to 22 with a view to complying with the requirements of Article 6(1).

Article 8

Financial guarantees

1.    To prepare for an effective system of financial guarantees for feed business operators, the Commission shall, by ... (14) , submit a report on financial guarantees in the feed sector which, in addition to examining the existing national legal provisions, systems and practices relating to liability in the feed sector and related sectors, shall be accompanied, where appropriate, by legislative proposals for such a feasible and practicable guarantee system at EU level. These guarantees should provide cover for the total costs for which operators could be held liable as a direct consequence of the withdrawal from the market, treatment and/or destruction of any feed, animals and food produced therefrom.

2.    Feed business operators shall be liable for any infringements of the relevant legislation on feed safety and operators within the meaning of Article 5(2) shall submit proof that they are covered by the financial guarantees required by the Community legislative measures referred to in paragraph 1.

Article 9

Official controls, notification and registration

1.   Feed business operators shall co-operate with the competent authorities in accordance with applicable Community legislation and national law compatible therewith .

2.   Feed business operators shall:

   a) notify the appropriate competent authority of any establishments under their control active in any of the stages of production, processing, storage, transport or distribution of feed in the form required by the competent authority with a view to registration;
   b) provide the competent authority with up-to-date information on any establishments under their control as referred in point (a) including notifying the competent authority of any significant change in activities and any closure of an existing establishment.

3.    The competent authority shall maintain a register or registers of establishments.

Article 10

Approval of feed business establishments

Feed business operators shall ensure that establishments under their control and covered by this Regulation are approved by the competent authority, where:

  1) such establishments carry out one of the following activities:
   a) manufacturing and/or placing on the market of feed additives covered by Regulation (EC) No 1831/2003 or products covered by Directive 82/471/EEC and referred to in Chapter 1 of Annex IV to this Regulation;
   b) manufacturing and/or placing on the market of premixtures prepared from feed additives referred to in Chapter 2 of Annex IV to this Regulation;
   c) manufacturing for placing on the market or producing for the exclusive requirements of its holding, compound feedingstuffs using feed additives or premixtures containing feed additives and referred to in Chapter 3 of Annex IV to this Regulation;
   2) approval is required under the national law of the Member State where the establishment is located;
   3) approval is required by a Regulation adopted in accordance with the procedure referred to in Article 31(2).

Article 11

Feed business operators shall not operate without:

   a) registration as provided for in Article 9; or
   b) approval, when required in accordance with Article 10 .

Article 12

Member States to provide information on national rules on approval

Any Member State requiring the approval under Article 10(2) of certain establishments located on its territory shall inform the Commission and the other Member States of the relevant national rules.

Article 13

Approval of establishments by the competent authority

1.    The competent authority shall approve establishments only where an on-site visit prior to start-up of any activity has demonstrated that they meet the relevant requirements of this Regulation.

2.    The competent authority may grant conditional approval if it appears from the on-site visit that the establishment meets all the infrastructure and equipment requirements. It shall grant full approval only if it appears from a new on-site visit carried out within three months of granting conditional approval that the establishment meets the other requirements referred to in the first paragraph. If clear progress has been made but the establishment still does not meet all of these requirements, the competent authority may prolong conditional approval. However, conditional approval shall not exceed a total of six months.

Article 14

Suspension of registration or approval by the competent authority

The competent authority shall temporarily suspend the registration or approval of an establishment for one, more or all of the activities where it is shown that the establishment no longer fulfils the conditions applicable to those activities.

Such suspension shall last until the establishment again meets those conditions. Where such conditions are not met within one year, Article 15 shall apply.

Article 15

Revocation of registration or approval by the competent authority

The competent authority shall revoke the registration or approval of an establishment for one or more of its activities where:

   a) the establishment ceases one or more of its activities;
   b) it is shown that the establishment has not fulfilled the conditions applicable to its activities for a period of one year;
   c) the competent authority identifies serious deficiencies or has to stop production at an establishment repeatedly and the feed business operator is not able to provide adequate guarantees regarding future production.

Article 16

Amendments to registration or approval of an establishment

The competent authority shall amend upon request the registration or approval of an establishment where the establishment has demonstrated its ability to engage in activities which are additional to those for which it was first registered or approved or which replace them.

Article 17

Exemption from on-site visits

Member States are exempted from the obligation to carry out on-site visits as provided for in Article 13 in feed businesses which act solely as traders without holding the products on their premises.

Such feed businesses shall submit to the competent authority a declaration, in a form decided upon by the competent authority, to the effect that the feeds placed on the market comply with the conditions of this Regulation.

Article 18

Transitional measures

1.   Establishments and intermediaries approved and/or registered in accordance with Directive 95/69/EC may continue their activities on condition that they submit, at the latest on the day of application of this Regulation, a notification to this effect to the relevant competent authority in whose area their facilities are located .

2.   Establishments and intermediaries requiring neither approval nor registration in accordance with Directive 95/69/EC but requiring registration in accordance with this Regulation may continue their activities on condition that they submit, at the latest on the day of application of this Regulation, an application for registration to the relevant competent authority in whose area their facilities are located.

3.    Within two years from the day of application of this Regulation, the applicant must declare, in a form decided upon by the competent authority, that the conditions laid down in this Regulation are being met.

4.    The competent authorities shall take account of the systems already existing for the collection of data and request the notifier or applicant to provide only such additional information which guarantees compliance with the conditions of this Regulation. In particular, the competent authorities may consider a notification under Article 6 of Regulation (EC) No .../2004 [on the hygiene of foodstuffs] as an application under paragraph 2 of this Article.

Article 19

List of registered and approved establishments

1.   For each activity, the competent authority shall enter in a national list or lists the establishments it has registered in accordance with Article 9 .

2.    Establishments approved by the competent authority in accordance with Article 13 shall be entered in a national list under an individual identifying number.

3 .   Member States shall maintain up-to-date the entries of establishments in the lists referred to in paragraphs 1 and 2 in accordance with the decisions referred to in Articles 14, 15 and 16 to suspend, revoke or amend registration or approval.

4 .   The list referred to in paragraph 2 must be drawn up in accordance with the model set out in Annex V, Chapter I.

5 .   The approval number referred to in paragraph 2 shall be in the form set out in Annex V, Chapter II.

The Commission shall consolidate and make available to the public that part of the Member States' lists which includes the list of the establishments referred to in paragraph 2 for the first time in November 2007 , and thereafter each year, by 30 November at the latest, the consolidated list taking into account the amendments made during the year.

The Member States shall make available to the public the lists of establishments referred to in paragraph 1.

CHAPTER III

GUIDES TO GOOD PRACTICE

Article 20

Development, dissemination and use of guides

1.   The Commission shall encourage the development of Community guides to good practice in the feed sector and for the application of HACCP principles in accordance with Article 22 .

Where necessary, Member States shall encourage the development of national guides in accordance with Article 21 .

2.   The dissemination and use of both national and Community guides shall be encouraged by the competent authorities.

3.   Nevertheless, feed business operators may use these guides voluntarily.

Article 21

National guides

1.  When national guides to good practice are developed, they shall be developed and disseminated by feed business sectors:

   a) in consultation with representatives of parties whose interests may be substantially affected, such as competent authorities and user groups;
   b) having regard to relevant codes of practice of the Codex Alimentarius; and
   c) when they concern primary production of feed, having regard to the requirements set out in Annex I.

2.    Member States shall assess national guides to ensure that:

   a) they have been developed in accordance with paragraph 1;
   b) the contents of such guides are practicable for the sectors to which they refer;
   c) they are suitable as guides to compliance with the provisions of Articles 4, 5 and 6, in the sectors and/or for the feeds concerned.

3 .   Member States shall forward national guides to the Commission.

The Commission shall set up and run a registration system for such guides and make this system available to the Member States.

Article 22

Community guides

1.   Before Community guides to good practice for hygiene or for the application of HACCP principles are developed, the Commission shall consult the Committee referred to in Article 31 (1). The objective of that consultation shall be to consider the case for such guides, their scope and subject matter.

2.  Where Community guides are prepared, the Commission shall ensure that they are developed and disseminated:

   a) by or in consultation with appropriate representatives of European feed business sectors and other interested parties, such as consumer groups;
   b) in collaboration with parties whose interests may be substantially affected, including competent authorities.

3.  Community guides shall be developed and disseminated taking into account:

   a) relevant codes of practice of the Codex Alimentarius, and
   b) when they concern primary production of feed , having regard to the requirements set out in Annex I.

4.  The Committee referred to in Article 31(1) shall assess draft Community guides to ensure that:

   a) they have been developed in accordance with paragraphs 2 and 3;
   b) the contents of such guides are practicable throughout the Community for the sectors to which they refer, and
   c) they are suitable as guides to compliance with the provisions of Articles 4, 5 and 6, in the sectors and/or for the feeds concerned.

5.   The Commission shall invite the Committee referred to in Article 31(1) periodically to review any Community guides prepared in accordance with this Article, in co-operation with the bodies mentioned in paragraph 2. The aim of this review shall be to ensure that the guides remain practicable and to take account of technological and scientific developments.

6.   The titles and references of Community guides prepared in accordance with this Article shall be published in the C series of the Official Journal of the European Union.

CHAPTER IV

IMPORTS AND EXPORTS

Article 23

Imports

1.  Feed business operators importing feed from third countries shall ensure that importation takes place only in accordance with the following conditions:

   a) the third country of dispatch appears on a list, drawn up in accordance with Article 48 of Regulation (EC) No …/2004 [on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules] , of third countries from which imports of feed are permitted;
   b) the establishment of dispatch appears on a list, drawn up and kept up-to-date by the third country in accordance with Article 48 of Regulation (EC) No …/2004 [on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules], of establishments from which imports of feed are permitted;
   c) the feed was produced by the establishment of dispatch or by another establishment appearing on the list referred to in point (b) or in the Community;
  d) the feed satisfies:
   i) the requirements laid down under this Regulation, and any other Community legislation laying down rules for feed; or
   ii) those conditions recognised by the Community to be at least equivalent thereto; or
   iii) where a specific agreement exists between the Community and the exporting country, the requirements contained therein.

2.   A model import certificate may be adopted in accordance with the procedure referred to in Article 31 (2).

Article 24

Interim measures

By way of derogation from Article 33 and pending the compilation of the lists provided for in Article 23( 1)(a) and (b), imports shall continue to be authorised under the conditions laid down in Article 6 of Directive 98/51/EC.

Article 25

Exports

Feed, including feed for non-food-producing animals, produced in the Community for placing on the market in third countries, must satisfy the provisions of Article 12 of Regulation (EC) No 178/2002.

CHAPTER V

FINAL PROVISIONS

Article 26

Implementing measures

Implementing measures may be laid down in accordance with the procedure referred to in Article 31 (2).

Article 27

Amendments to Annexes I, II, and III

Annexes I, II and III may be amended in accordance with the procedure referred to in Article 31(2), to take account of:

   a) the development of codes of good practice;
   b) the experience gained from the implementation of HACCP-based systems pursuant to Article 6;
   c) technological developments;
   d) scientific advice, particularly new risk assessments;
   e) the setting of feed safety targets; and
   f) the development of requirements relating to specific operations.

Article 28

Derogations from provisions of Annexes I, II and III

Derogations from the provisions of Annexes I, II and III may be granted in accordance with the procedure referred to in Article 31 (2), provided that such derogations do not affect the achievement of the objectives of this Regulation .

Article 29

Rapid Alert System

Should a specific feed, including feed for non-food-producing animals, present a serious risk to animal or human health or the environment, the provisions of Article 50 of Regulation (EC) No 178/2002 shall apply, mutatis mutandis.

Article 30

Penalties

The Member States shall lay down the rules on penalties applicable to infringements of the provisions of this Regulation and shall take the measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission by ... (15) at the latest and shall notify it without delay of any subsequent amendment affecting them.

Article 31

Standing Committee Procedure

1.   The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up by Regulation (EC) No 178/2002 (hereinafter referred to as "the Committee").

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

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

3.   The Committee shall adopt its rules of procedure.

Article 32

Consultation of the European Food Safety Authority

The Commission shall consult the European Food Authority on any matter within the scope of this Regulation that could have a significant impact on public health and, in particular, before proposing criteria or targets in accordance with Article 5 (3).

Article 33

Repeal

Directives 95/69/EC and 98/51/EC are repealed, without prejudice to the obligations of the Member States concerning the deadlines for transposition, with effect from the date of application of this Regulation.

Article 34

Entry into force

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

It shall apply as from the date of application of Regulation (EC) No…/2004 [on the hygiene of foodstuffs] (16) .

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

Done at ,

For the European Parliament For the Council

The President The President

ANNEX I

PART A

Requirements for feed businesses at the level of primary production of feed referred to in Article 5(1)

1.   Feed business operators responsible for primary production of feed shall ensure that operations are managed and carried out in such a way as to prevent, eliminate or minimise hazards with the potential to compromise feed safety .

2.   Feed business operators shall ensure, as far as possible, that primary products produced, prepared, cleaned, packed, stored and transported under their responsibility are protected against contamination and spoilage.

3.  Feed business operators shall meet the obligations in paragraphs 1 and 2 by complying with appropriate Community and national legislative provisions relating to the control of hazards, including :

   i) measures to control hazardous contamination such as those arising from the air, soil, water, fertilisers, plant protection products, biocides, veterinary medicinal products and handling and disposal of waste, and
   ii) measures relating to plant health, animal health and the environment that have implications for feed safety including programmes for the monitoring and control of zoonoses and zoonotic agents.

4.  Where appropriate, feed business operators shall take adequate measures, in particular :

   a) to keep clean and, where necessary after cleaning, to disinfect in an appropriate manner facilities, equipment, containers, crates and vehicles used for producing, preparing, grading, packing, storing and transporting feed;
   b) to ensure, where necessary, hygienic production, transport and storage conditions for, and the cleanliness of, feed;
   c) to use clean water whenever necessary to prevent hazardous contamination;
   d) to prevent, as far as possible, animals and pests from causing hazardous contamination;
   e) to store and handle wastes and hazardous substances, separately and securely, so as to prevent hazardous contamination;
   f) to ensure that packaging materials are not a source of hazardous contamination of feed;
   g) to take account of the results of any relevant analyses carried out on samples taken from primary products or other samples relevant to feed safety.

Record-keeping

1.   Feed business operators shall complete and retain records relating to measures put in place to control hazards in an appropriate manner and for an appropriate period, commensurate with the nature and size of the feed business. Feed business operators must make relevant information contained in these records available to the competent authority.

2.  Feed business operators must, in particular, keep records on:

   a) any use of plant protection products and biocides ;
   b) use of genetically modified seeds;
   c) any occurrence of pests or diseases that may affect the safety of primary products;
   d) the results of any analyses carried out on samples taken from primary products or other samples taken for diagnostic purposes that have importance for feed safety;
   e) the source and quantity of each input of feed and the destination and quantity for each output of feed.

3.   Other persons, such as veterinarians, agronomists and farm technicians, may assist the feed business operators with the keeping of records relevant to the activities they carried out in the farm.

PART B

Recommendations for guides to good practice

1.   Where national and Community guides referred to in Articles 20 to 22 of this Regulation are drawn up, they shall contain guidance on good practices for the control of hazards in primary production of feed.

2.  Guides to good practices shall include appropriate information on hazards arising in primary production of feed and actions to control hazards, including relevant measures set out in Community and national legislation or national and Community programmes, such as:

   a) the control of contamination such as mycotoxins, heavy metals, radioactive material;
   b) the use of water, organic waste and fertilisers;
   c) the correct and appropriate use of plant protection products and biocides and their traceability;
   d) the correct and appropriate use of veterinary medicinal products and feed additives and their traceability;
   e) the (preparation, storage and) traceability of feed materials;
   f) the proper disposal of dead animals, waste and litter;
   g) protective measures to prevent the introduction of contagious diseases transmissible to animals through feed and any obligation to notify the competent authority;
   h) procedures, practices and methods to ensure that feed is produced, prepared, packed, stored and transported under appropriate hygienic conditions, including effective cleaning and pest-control;
   i) measures relating to record-keeping.

ANNEX II

Requirements for feed businesses other than at the level of primary production referred to in Article 5(1)

Facilities and equipment

1.   Feed processing and storage facilities, equipment, containers, crates, vehicles and their immediate surroundings shall be kept clean, and effective pest control programmes shall be implemented.

2.  The lay-out, design, construction and size of the facilities and equipment shall:

   a) permit adequate cleaning and/or disinfection
   b) be such as to minimise the risk of error and with a view to avoiding contamination, cross-contamination and any adverse effects generally on the safety and quality of the products. Machinery coming into contact with feed shall be dried following any wet cleaning process.

3.   Facilities and equipment to be used for mixing and/or manufacturing operations shall undergo appropriate and regular checks, in accordance with written procedures pre-established by the manufacturer for the products.

(a)   All scales and metering devices used in the manufacture of feeds shall be appropriate for the range of weights or volumes to be measured and tested for accuracy regularly.

(b)   All mixers used in the manufacture of feeds shall be appropriate for the range of weights or volumes being mixed, and shall be capable of manufacturing suitable homogeneous mixtures and homogeneous dilutions. Operators shall demonstrate the effectiveness of mixers with regard to homogeneity.

4.   Facilities must have adequate natural and/or artificial lighting.

5.   Drainage facilities must be adequate for the purpose intended; they must be designed and constructed to avoid the risk of contamination of feedingstuffs.

6.   Water used in feed manufacture shall be of suitable quality for animals; the conduits for water shall be of an inert nature.

7.   Sewage, waste and rain water shall be disposed of in a manner which ensures that equipment and the safety and quality of feed is not affected. Spoilage and dust shall be controlled to prevent pest invasion.

8.   Windows and other openings must, where necessary, be proofed against pests . Doors must be close-fitting and proofed against pests when closed.

9.   Where necessary, ceilings and overhead fixtures must be designed, constructed and finished to prevent the accumulation of dirt and to reduce condensation, the growth of undesirable moulds and the shedding of particles that can affect the safety and quality of feed.

Personnel

Feed businesses must have sufficient staff possessing the skills and qualifications necessary for the manufacture of the products concerned. An organization chart setting out the qualifications (e.g. diplomas, professional experience) and responsibilities of the supervisory staff must be drawn up and made available to the competent authorities responsible for inspection. All the staff must be informed clearly in writing of their duties, responsibilities and powers, especially when any change is made, in such a way as to obtain the desired product quality.

Production

1.   A qualified person responsible for production must be designated.

2.   Feed business operators must ensure that the different stages of production are carried out according to pre-established written procedures and instructions aimed at defining, checking and mastering the critical points in the manufacturing process.

3.   Technical or organisational measures must be taken to avoid or minimise, as necessary, any cross-contamination and errors. There must be sufficient and appropriate means of carrying out checks in the course of manufacture.

4.   The presence of prohibited feed, undesirable substances and other contaminants in relation to human health or animal health shall be monitored, and appropriate control strategies to minimise the risk shall be in place.

5.   Waste and materials not suitable as feed should be isolated and identified. Any such materials containing hazardous levels of veterinary drugs, contaminants or other hazards shall be disposed of in an appropriate way and not used as a feed.

6.    Feed business operators shall take adequate measures to ensure effective tracing of the products produced.

Quality control

1.   Where appropriate, a qualified person responsible for quality control must be designated.

2.   Feed businesses must, as part of a quality control system , have access to a laboratory with adequate staff and equipment .

3.   A quality control plan must be drawn up in writing and implemented, to include, in particular, checks on the critical points in the manufacturing process, sampling procedures and frequencies, methods of analysis and their frequency, compliance with the specifications - and the destination in the event of non-compliance - from processed materials to final products.

4.   Documentation relating to the raw materials used in end products must be kept by the manufacturer in order to ensure traceability. Such documentation must be available to the competent authorities for a period appropriate to the use for which the products are placed on the market. In addition, samples of ingredients and of each batch of products manufactured and placed on the market or of each specific portion of production (in the case of continuous production) must be taken in sufficient quantity using a procedure pre-established by the manufacturer and be retained in order to ensure traceability (on a regular basis in the case of manufacture solely for the manufacturer's own needs). The samples must be sealed and labelled for ease of identification; they must be stored under conditions which prevent any abnormal change in the composition of the sample or any adulteration. They must be kept at the disposal of the competent authorities for a period appropriate to the use for which the feed is placed on the market. In the case of feedingstuffs for non-food-producing animals, the manufacturer of the feedingstuff must only keep samples of the finished product.

Storage and transport

1.   Processed feeds shall be separated from unprocessed feed materials and additives in order to avoid any cross-contamination of the processed feed, and proper packaging materials shall be used.

2.   Feeds shall be stored and transported in suitable containers. They shall be stored in places designed, adapted and maintained in order to ensure good storage conditions, to which only persons authorised by the feed business operators have access.

3.   Feeds shall be stored and transported in such a way as to be easily identifiable, to avoid any confusion or cross-contamination and to prevent deterioration.

4.   Containers and equipment used for transport, storage, conveying, handling and weighing shall be kept clean. Cleaning programmes shall be introduced, and traces of detergents and disinfectants shall be minimised.

5.   Any spoilage shall be minimised and kept under control to reduce pest invasion.

6.   Where appropriate, temperatures shall be kept as low as possible to avoid condensation and spoilage.

Documentation

1.   All feed business operators, including those who act solely as traders without ever holding the product in their facilities, shall keep in a register records with relevant data comprising purchase, production and sales for effective tracing from receipt and delivery including export to the final destination.

2.   Feed business operators, except those who act solely as dealers without ever holding the product in their facilities, shall keep in a register the following documentation:

(a)   Documentation relating to the manufacturing process and controls.

Feed businesses must have a system of documentation designed to define and ensure mastery of the critical points in the manufacturing process and to establish and implement a quality control plan. They must keep the results of the relevant controls. This set of documents must be kept so that it is possible to trace the manufacturing history of each batch of products put into circulation and to establish responsibility if complaints arise.

(b)   Documentation relating to traceability, in particular :

(i)  Additives:

   - the nature and quantity of the additives produced, the respective dates of manufacture and, where appropriate, the number of the batch or of the specific portion of production, in the case of continuous manufacture;
   - the name and address of the establishment to which the additives were delivered, the nature and quantity of the additives delivered and, where appropriate, the number of the batch or of the specific portion of production, in the case of continuous manufacture;

(ii)  Products covered by Directive 82/471/EEC:

   - the nature of the products and the quantity produced, the respective dates of manufacture and, where appropriate, the number of the batch or of the specific portion of production, in the case of continuous manufacture;
   - the name and address of the establishments or users (establishments or farmers ) to whom these products have been delivered, together with details of the nature and quantity of the products delivered and, where appropriate, the number of the batch or of the specific portion of production, in the case of continuous manufacture.

(iii)  Premixtures:

   - the name and address of the manufacturers or suppliers of additives, the nature and quantity of the additives used and, where appropriate, the number of the batch or of the specific portion of production, in the case of continuous manufacture;
   - the date of manufacture of the premixture and the batch number where appropriate;
   - the name and address of the establishment to which the premixture is delivered, the delivery date, the nature and quantity of the premixture delivered, and the batch number where appropriate.

(iv)  Compound feedingstuffs/feed materials:

   - the name and address of additive/ premixture manufacturers or suppliers, the nature and quantity of the premixture used, with the batch number where appropriate;
   - the name and address of the suppliers of the feed materials and complementary feeds and the delivery date;
   - the type, quantity and formulation of the compound feed;
   - the nature and quantity of feed materials or compound feedingstuffs manufactured, together with the date of manufacture, and the name and address of the buyer (e.g. farmer , other feed business operators ).

Complaints and product recall

1.   Feed business operators shall implement a system for registering and processing complaints.

2.   They shall put in place , where this proves necessary, a system for the prompt recall of products in the distribution network. They shall define by means of written procedures the destination of any recalled products, and before such products are put back into circulation they must undergo a quality-control reassessment.

ANNEX III

Good Animal Feeding Practice

Pasture grazing

The grazing of pastures and croplands shall be managed in a way that minimises the contamination of foods of animal origin by physical, biological or chemical hazards.

Where appropriate, an adequate rest period shall be observed before allowing livestock to graze on pasture, crops and crop residues and between grazing rotations to minimise biological cross-contamination from manure, where such a potential problem exists, and to ensure that the withholding periods for agricultural chemical applications are observed.

Requirements for stable and feeding equipment

The animal production unit shall be designed so that it can be adequately cleaned. The animal production unit and feeding equipment shall be cleaned thoroughly and regularly to prevent any build-up of hazards . Chemicals used for cleaning and sanitising shall be used according to instructions and stored away from feed and feeding areas.

A pest control system shall be put in place to control the access of pests to the animal production unit with a view to minimising the possibility of contamination of feed and bedding materials or animal units.

Buildings and feeding equipment shall be kept clean. Systems shall be put in place to regularly remove manure, waste material and other possible sources of contamination of feed.

Feed and bedding material used in the animal production unit shall be frequently changed and not allowed to become mouldy.

Feeding

1.   Storage

Feed shall be stored separately from chemicals and other products prohibited for animal feed. Storage areas and containers shall be kept clean and dry and appropriate pest-control steps implemented where necessary . Storage areas and containers shall be cleaned regularly to avoid unnecessary cross-contamination.

Seed shall be stored properly and in such a way that it is not accessible to animals.

Medicated feed and non-medicated feed intended for different categories or species of animals shall be stored such as to reduce the risk of feeding to non-target animals .

2.   Distribution

The on-farm feed distribution system shall ensure that the right feed is sent to the right destination. During distribution and feeding, feed shall be handled in such a way as to ensure that contamination does not occur from contaminated storage areas and equipment. Non-medicated feeds shall be handled separately from medicated feeds to prevent contamination.

On-farm feed transport vehicles and feeding equipment shall be cleaned periodically, in particular when used to deliver and distribute medicated feed .

Feed and Water

Water for drinking or for aquaculture shall be of appropriate quality for the animals being produced. Where there is reason to be concerned about contamination of animals or animal products from the water, measures shall be taken to evaluate and minimise the hazards.

Feeding and watering equipment must be designed, constructed and placed such that contamination of feed and water is minimised. Watering systems shall be cleaned and maintained regularly, where possible.

Personnel

The person responsible for the feeding and handling of animals shall possess the requisite ability, knowledge and competence .

ANNEX IV

CHAPTER 1

Additives authorised under Regulation (EC) No 1831/2003:

   Nutritional additives: all additives in the group
   Zootechnical additives: all additives in the group
   Technological additives:
   additives covered by Annex I(1) (b) ("antioxidants") of Regulation (EC) No 1831/2003: only those with a fixed maximum content
   Sensory additives: additives covered by Annex I(2) (a) ("colorants") of Regulation (EC) No 1831/2003
   Carotenoids and xantophylls

Products covered by Directive 82/471/EEC

   Proteins obtained from micro-organisms belonging to the group of bacteria, yeasts, algae, lower fungi: all products in the group (except for subgroup 1.2.1)
   Co-products of the manufacture of amino acids by fermentation: all products in the group

CHAPTER 2

Additives authorised under Regulation (EC) No 1831/2003:

   Zootechnical additives: additives covered by Annex I(4) (d) ("other zootechnical additives") of Regulation (EC) No 1831/2003
   Antibiotics: all additives
   Coccidiostats and histomonostats : all additives
   Growth promoters: all additives
   Nutritional additives:
   Additives covered by Annex I(3) (a) ( Vitamins, provitamins and chemically well defined substances having a similar effect) of Regulation (EC) No 1831/2003 : A and D
   Additives covered by Annex I (3) (b) ("compounds of trace elements") of Regulation (EC) No 1831/2003 : Cu and Se

CHAPTER 3

Additives authorised under Regulation (EC) No 1831/2003:

   Zootechnical additives: additives covered by Annex I(4) (d) ("other zootechnical additives") of Regulation (EC) No 1831/2003
   Antibiotics: all additives
   Coccidiostats and histomonostats : all additives
   Growth promoters: all additives

ANNEX V

CHAPTER I

LIST OF APPROVED FEED BUSINESSES

1

2

3

4

5

Approval number

Activity

Name or business name(17)

Address(18)

Remarks

CHAPTER II

The approval number must have the following structure:

   1. The character "α" if the feed business is approved;
   2. The ISO code of the Member State or of the third country where the feed business is located;
   3. The national reference number, to a maximum of eight alphanumerical characters.

(1) OJ C ... / Not yet published in OJ.
(2) OJ C , , p. .
(3) OJ C , , p. .
(4) OJ C , , p. .
(5) Position of the European Parliament of 31 March 2004.
(6) OJ L 31, 1.2.2002, p. 1. Regulation amended by Regulation (EC) No 1642/2003 (OJ L 245, 29.9.2003, p. 4).
(7) OJ L 332, 30.12.1995, p. 15. Directive as last amended by Regulation (EC) No 806/2003 (OJ L 182, 16.5.2003 , p. 1 ).
(8) OJ L 208, 24.7.1998, p. 43.
(9) OJ L 213, 21.7.1982, p. 8. Directive amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1).
(10) OJ L
(11) OJ L 184, 17.7.1999, p. 23.
(12)1 OJ L
(13) OJ L 268, 18.10.2003, p. 29.
(14)* 12 months after the entry into force of this Regulation.
(15)* Two years after the date of publication of this Regulation .
(16) See Article 22 thereof: such a date will be 1 January 2006 or a later date, depending on the publication of the "hygiene package" in the Official Journal.
(17) Name or business name of the feed businesses.
(18) Address of the feed businesses.


Materials and articles intended to come into contact with food ***I
Resolution
Consolidated text
European Parliament legislative resolution on the proposal for a European Parliament and Council regulation on materials and articles intended to come into contact with food (COM(2003) 689 – C5-0549/2003 – 2003/0272(COD))
P5_TA(2004)0235 A5-0147/2004

(Codecision procedure: first reading)

The European Parliament ,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2003) 689 )(1) ,

–   having regard to Articles 251(2) and 95 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C5-0549/2003 ),

–   having regard to Rule 67 of its Rules of Procedure,

–   having regard to the report of the Committee on the Environment, Public Health and Consumer Policy and the opinion of the Committee on Industry, External Trade, Research and Energy (A5-0147/2004 ),

1.   Approves the Commission proposal as amended;

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

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

Position of the European Parliament adopted at first reading on 31 March 2004 with a view to the adoption of Regulation (EC) No .../2004 of the European Parliament and of the Council on materials and articles intended to come into contact with food

P5_TC1-COD(2003)0272


THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission(2) ,

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

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

Whereas:

(1)   Council Directive 89/109/EEC of 21 December 1988 on the approximation of the laws of the Member States relating to materials and articles intended to come into contact with foodstuffs(5) , replacing Directive 76/893/EEC, established general principles for eliminating the differences between the laws of the Member States as regards those materials and articles and provided for the adoption of implementing directives concerning specific groups of materials and articles (specific directives). This approach was successful and should be continued.

(2)   The specific directives adopted under Directive 89/109/EEC in general contain provisions which leave little room for the exercise of discretion by the Member States in their transposition besides being subject to frequent amendments required to adapt them rapidly to technological progress. It should therefore be possible for such measures to take the form of regulations or decisions. At the same time it is appropriate to include a number of additional subjects. Directive 89/109/EEC should therefore be replaced.

(3)   The principle underlying this Regulation should be that any material or article intended to come into contact directly or indirectly with food must be sufficiently inert to preclude substances being transferred to food in quantities large enough to endanger human health or to bring about an unacceptable change in the composition of the food or a deterioration in its organoleptic properties.

(4)   New types of materials and articles designed to actively maintain or improve the condition of the food ("active food contact materials and articles") are not inert by their design, contrary to traditional materials and articles intended to come into contact with food. Other types of new materials and articles are designed to monitor the condition of the food ("intelligent food contact materials and articles"). Both these types of materials and articles may be brought into contact with food. It is therefore necessary, for reasons of clarity and legal certainty, for active and intelligent food contact materials and articles to be included in the scope of this Regulation and the main requirements for their use to be established. Further requirements should be stated in specific measures, to include positive lists of authorised substances and/or materials and articles, which should be adopted as soon as possible.

(5)   Active food contact materials and articles are designed to deliberately incorporate "active" components intended to be released into the food or to absorb substances from the food. They should be distinguished from materials and articles which are traditionally used to release their natural ingredients into specific types of food during the process of their manufacture, such as wooden barrels.

(6)    Active food contact materials and articles may change the composition or the organoleptic properties of the food, only if the changes comply with the Community provisions applicable to food, such as the provisions of Council Directive 89/107/EEC of 21 December 1988 on the approximation of the laws of the Member States concerning food additives authorised for use in foodstuffs intended for human consumption (6) . In particular substances such as food additives deliberately incorporated into certain active food contact materials and articles for release into packaged foods or the environment surrounding such foods should be authorised under the relevant Community provisions applicable to food and also be subject to other rules which will be established in a specific measure. In addition adequate labelling or information should support users in the safe and correct use of active materials and articles in compliance with the food legislation, including the provisions on food labelling.

(7)    Active and intelligent food contact materials and articles should not change the composition or the organoleptic properties of food or give information about the condition of the food that could mislead the consumers. For example active food contact materials should not release or absorb substances such as aldehydes or amines in order to mask an incipient spoilage of the food. Such changes which could manipulate signs of spoilage could mislead the consumer and they should therefore not be allowed. Similarly, active food contact materials which produce colour changes to the food that give the wrong information about the condition of the food could mislead the consumer and therefore should not be allowed either.

(8 )   Any material and article intended to come into contact with food which is placed on the market should comply with the requirements of this Regulation. Nevertheless, materials and articles supplied as antiques should be excluded as they are available in restricted quantities and their contact with food is therefore limited.

(9 )   Covering or coating materials forming part of the food and possibly being consumed with it should not fall within the scope of this Regulation. On the other hand, this Regulation should apply to covering or coating materials which cover cheese rinds, prepared meat products or fruit but which do not form part of foodstuffs and are not intended to be consumed together with those foodstuffs.

(10 )   It is necessary to lay down various types of restrictions and conditions for the use of the materials and articles covered by this Regulation and the substances used in their manufacture. It is appropriate to establish those restrictions and conditions in specific measures having regard to the technological characteristics specific to each group of materials and articles.

(11 )   Pursuant to Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety(7) , the European Food Safety Authority ("the Authority") should be consulted before provisions liable to affect public health are adopted under specific measures.

(12 )   When specific measures include a list of substances authorised within the Community for use in the manufacture of materials and articles intended to come into contact with food, those substances should undergo a safety assessment prior to their authorisation. The safety assessment and authorisation of those substances should be without prejudice to the relevant requirements of the Community legislation concerning the registration, evaluation, authorisation and restriction of chemicals.

(13 )   Differences between national laws, regulations and administrative provisions concerning the safety assessment and the authorisation of substances, used in the manufacture of materials and articles intended to come into contact with food, may hinder the free movement of those materials and articles, creating conditions of unequal and unfair competition. An authorisation procedure should therefore be established at Community level. In order to ensure harmonised safety assessment of those substances, the Authority should carry out such assessments.

(14 )   The safety assessment of substances should be followed by a risk management decision as to whether those substances should be entered on a Community list of authorised substances.

(15)    It is appropriate to provide for the possibility of an administrative review of specific acts or omissions on the part of the Authority under this Regulation. This review should be without prejudice to the role of the Authority as an independent scientific point of reference in risk assessment.

(16 )   Labelling supports users in the correct use of the materials and articles. Methods used for such labelling may vary according to the user.

(17 )   Commission Directive 80/590/EEC of 9 June 1980(8) introduced a symbol that may accompany materials and articles intended to come into contact with foodstuffs. This symbol should, for reasons of simplicity, be incorporated in this Regulation.

(18 )   Traceability of materials and articles intended to come into contact with food should be ensured at all stages in order to facilitate control, recall of defective products, information given to consumers and attribute responsibility . Business operators should at least be able to identify the businesses from which and to which the materials and articles have been supplied.

(19)    In the control of the compliance of the materials and articles with this Regulation it is appropriate to take into account of the special needs of developing countries, and in particular of the least-developed countries. The Commission has been committed by Regulation (EC) No .../2004 of the European Parliament and of the Council of ... [on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules] (9) to support developing countries with regard to food safety, including the safety of the materials and articles in contact with food. Special provisions have been therefore established in that Regulation which should be applicable also to the food contact materials and articles.

(20 )   It is necessary to establish procedures for the adoption of safeguard measures in situations where a material or article is likely to constitute a serious risk to human health.

(21)    Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding access to European Parliament, Council and Commission documents applies to documents held by the Authority (10) .

(22 )   It is appropriate to protect the investment made by innovators in gathering the information and data supporting an application under this Regulation. In order to avoid unnecessary repetition of studies and in particular animal testing, however, sharing of data should be permitted provided there is agreement between the interested parties.

(23 )   Community and national reference laboratories should be designated to contribute to a high quality and uniformity of analytical results. This objective will be achieved within the framework of Regulation (EC) No .../2004 [on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules] .

(24)    The use of recycled materials and articles should be favoured in the Community for environmental reasons provided that strict requirements are established to ensure food safety and consumer protection. Such requirements should be established taking also into account the technological characteristics of the different groups of materials and articles mentioned in Annex I. Priority should be given to the harmonisation of rules on recycled plastic material and articles as their use is increasing and national laws and provisions are lacking or are divergent. Therefore, a draft of a specific measure on recycled plastic materials should be made available to the public as soon as possible in order to clarify the legal situation in the Community.

(25 )   The measures necessary for the implementation of this Regulation and amendments to Annexes I and II should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(11) .

(26 )   The Member States should lay down rules on sanctions applicable to infringements of the provisions of this Regulation and ensure that they are implemented. Those sanctions must be effective, proportionate and dissuasive.

(27)    It is necessary to provide that business operators should have sufficient time to adapt to some of the requirements established by this Regulation.

(28 )   Since the objectives of this Regulation cannot be sufficiently achieved by the Member States due the differences between the national laws and provisions and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(29 )   Directives 80/590/EEC and 89/109/EEC should therefore be repealed,

HAVE ADOPTED THIS REGULATION:

Article 1

Subject matter and scope

1.   The purpose of this Regulation is to ensure the effective functioning of the internal market in relation to the placing on the market in the Community of materials and articles intended to come into contact directly or indirectly with food , whilst providing the basis for securing a high level of protection of human health and the interests of consumers.

2.  This Regulation shall apply to materials and articles, including active and intelligent food contact materials and articles, (hereinafter referred to as "materials and articles") which in their finished state:

   a) are intended to be brought into contact with food; or
   b) are already brought into contact with food and are intended for that purpose; or
   c) can reasonably be expected to be brought into contact with foods or to transfer their constituents to food under normal or foreseeable conditions of use .

3.  This Regulation shall not apply to:

   a) materials and articles which are supplied as antiques;
   b) covering or coating materials , such as the materials covering cheese rinds, prepared meat products or fruits, which form part of food and may be consumed together with this food;
   c) fixed public or private water supply equipment.

Article 2

Definitions

For the purposes of this Regulation, the relevant definitions laid down in Regulation (EC) No 178/2002 shall apply, with the exception of the definitions of "traceability" and "placing on the market" .

The following definitions shall also apply:

   1) "active food contact materials and articles" (hereinafter referred to as "active materials and articles") means materials and articles that are intended to extend the shelf-life or to maintain or improve the condition of packaged food. They are designed to deliberately incorporate components that would release or absorb substances into or from the packaged food or the environment surrounding the food;
   2) "intelligent food contact materials and articles" (hereinafter referred to as "intelligent materials and articles") means materials and articles which monitor the condition of packaged food or the environment surrounding the food;
   3) "business" means any undertaking, whether for profit or not and whether public or private, carrying out any of the activities related to any stage of manufacture, processing and distribution of materials and articles;
   4) "business operator" means the natural or legal persons responsible for ensuring that the requirements of this Regulation are met within the business under their control;
   5) "traceability" means the ability to trace and follow a material or article through all stages of manufacture, processing and distribution;
   6) "placing on the market" means the holding of materials and articles for the purpose of sale, including offering for sale or any other form of transfer, whether free of charge or not, and the sale, distribution, and other forms of transfer themselves .

Article 3

General requirements

1.    Materials and articles, including active and intelligent materials and articles, shall be manufactured in compliance with good manufacturing practice so that, under normal or foreseeable conditions of use, they do not transfer their constituents to food in quantities which could:

   a) endanger human health; or
   b) bring about an unacceptable change in the composition of the food; or
   c) bring about a deterioration in the organoleptic characteristics thereof.

2.    The labelling, advertising and presentation of a material or article shall not mislead the consumers.

Article 4

Special requirements for active and intelligent materials and articles

1.   In the application of Article 3(1)(b) and 3(1)(c) , active materials and articles may bring about changes in the composition or the organoleptic characteristics of the food on condition that the changes comply with the Community provisions applicable to food, such as the provisions of Directive 89/107/EEC on food additives and related implementing measures, or, if no Community provisions exist, with the national provisions applicable to food.

2.    Pending the adoption of additional rules in a specific measure on active and intelligent materials and articles, substances deliberately incorporated into active materials and articles to be released into the food or the environment surrounding the food shall be authorised and used in accordance with the relevant Community provisions applicable to food, and shall comply with the provisions of this Regulation and its implementing measures.

These substances shall be considered as ingredients within the meaning of Article 6(4)(a) of Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (12) .

3.    Active materials and articles shall not bring about changes in the composition or the organoleptic characteristics of the food, for instance by masking the spoilage of food, which could mislead the consumers.

4 .   Intelligent materials and articles shall not give information about the condition of the food which could mislead the consumers.

5.    Active and intelligent materials and articles already brought into contact with food shall be adequately labelled to allow identification by the consumer of non-edible parts.

6.    Active and intelligent materials and articles shall be adequately labelled to indicate that the materials or articles are active and/or intelligent.

Article 5

Specific measures for groups of materials and articles

1.    For the groups of materials and articles listed in Annex I and, where appropriate, combinations of those materials and articles or recycled materials and articles used in the manufacture of those materials and articles , specific measures may be adopted or amended in accordance with the procedure referred to in Article 23 (2).

Those specific measures may include:

   a) a list of substances authorised for use in the manufacturing of materials and articles ;
   b) list(s) of authorised substances incorporated in active or intelligent food contact materials and articles, or list(s) of active or intelligent materials and articles and, when necessary, special conditions of use for these substances and/or the materials and articles in which they are incorporated;
   ( c ) purity standards for substances referred to in (a);
   ( d ) special conditions of use for substances referred to in (a) and/or the materials and articles in which they are used;
   ( e ) specific limits on the migration of certain constituents or groups of constituents into or onto food, taking due account of other possible sources of exposure to those constituents;
   ( f ) an overall limit on the migration of constituents into or onto food;
   ( g ) provisions aimed at protecting human health against hazards arising from oral contact with materials and articles;
   ( h ) other rules to ensure compliance with Articles 3 and 4;
   ( i ) basic rules for checking compliance with points (a) to (h) ;
   ( j ) rules concerning the collection of samples and the methods of analysis to check compliance with points (a) to (h) ;
   ( k ) specific provisions for ensuring traceability of materials and articles including provisions regarding the duration for retention of records or provisions to allow, if necessary, for derogations from the requirements of Article 17 ;
   l) additional labelling provisions for active and intelligent materials and articles;
   ( m ) provisions requiring that the Commission establishes and maintains a publicly available Community Register ("Register") of authorised substances, processes or materials or articles;
   n) specific procedural rules adapting, as necessary, the procedure referred to in Articles 8 to 12, or making it appropriate for the authorisation of certain types of materials and articles and/or processes used in their manufacture, including, where necessary, a procedure for an individual authorisation of a substance, material or article or process through a decision addressed to an applicant.

2.    Existing specific directives on materials and articles shall be amended in accordance with the procedure laid down in Article 23(2).

Article 6

National specific measures

In absence of specific measures referred to in Article 5, this Regulation does not prevent Member States from maintaining or adopting national provisions provided they comply with the rules of the Treaty.

Article 7

Role of the European Food Safety Authority

Provisions liable to affect public health shall be adopted after consulting the European Food Safety Authority, hereinafter referred to as "the Authority".

Article 8

General requirements for the authorisation of substances

1.   When a list of substances as referred to in points (a) and (b) of the second subparagraph of Article 5(1) is adopted, anyone seeking an authorisation for a substance not yet included in that list shall submit an application in accordance with Article 9 (1).

2.   No substance shall be authorised unless it has been adequately and sufficiently demonstrated that, when used under the conditions to be set in the specific measures the final material or article satisfies the requirements of Articles 3 and 4.

Article 9

Application for authorisation of a new substance

1.   To obtain the authorisation referred to in Article 8 (1), an application shall be submitted in accordance with the following points:

a)   the application shall be sent to the competent authority of a Member State accompanied by the following:

   i) the name and address of the applicant;
   ii) a technical dossier containing the information specified in the guidelines for the safety assessment of a substance to be published by the Authority;
   iii) a summary of the technical dossier;

b)   the competent authority referred to in (a) shall:

   i) acknowledge receipt of the application in writing to the applicant within 14 days of its receipt. The acknowledgement shall state the date of receipt of the application;
   ii) inform without delay the Authority; and
   iii) make the application and any supplementary information supplied by the applicant available to the Authority;

c)   the Authority shall inform without delay the other Member States and the Commission of the application and shall make the application and any supplementary information supplied by the applicant available to them.

2.   The Authority shall publish detailed guidance concerning the preparation and the submission of the application (13) .

Article 10

Opinion of the Authority

1.   The Authority shall give an opinion within six months of the receipt of a valid application, as to whether the substance under the intended conditions of use of the material or article in which it is used, complies with the safety criteria laid down in Articles 3 and 4.

The Authority may extend the said period by a maximum period of a further six months . In such a case it shall provide an explanation for the delay to the applicant, the Commission and the Member States.

2.   The Authority may, where appropriate, request the applicant to supplement the particulars accompanying the application within a time limit specified by the Authority. Where the Authority requests supplementary information, the time limit laid down in paragraph 1 shall be suspended until such time, as that information has been provided. Likewise, the time limit shall be suspended for the time allowed to the applicant to prepare oral or written explanations.

3.  In order to prepare its opinion, the Authority shall:

   a) verify that the information and documents submitted by the applicant are in accordance with Article 9 (1)(a) in which case the application shall be regarded as valid, and examine whether the substance complies with the safety criteria laid down in Articles 3 and 4;
   b) inform the applicant, the Commission and the Member States if an application is not valid.

4.  In the event of an opinion in favour of authorising the evaluated substance, the opinion shall include:

   a) the designation of the substance including its specifications and
   b) where appropriate, recommendations for any conditions or restrictions of use for the evaluated substance and/or the material or article and
   c) an assessment as to whether the analytical method proposed is appropriate for the intended control purposes.

5.   The Authority shall forward its opinion to the Commission, the Member States and the applicant.

6.   The Authority shall make its opinion public, after deletion of any information identified as confidential, in accordance with Article 20 .

Article 11

Community authorisation

1.   The Community authorisation of a substance or substances shall take place in the form of the adoption of a specific measure. The Commission shall prepare, where appropriate, a draft of a specific measure, as referred to in Article 5, to authorise the substance or substances evaluated by the Authority and specify or change the conditions of their use.

2.   The draft specific measure shall take into account the opinion of the Authority, relevant provisions of Community law and other legitimate factors relevant to the matter under consideration. Where the draft specific measure is not in accordance with the opinion of the Authority, the Commission shall provide without delay an explanation for the reasons for the differences. If the Commission does not intend to prepare a draft specific measure after a favourable opinion by the Authority, it shall inform the applicant without delay and provide the applicant with an explanation .

3.   Community authorisation in the form of a specific measure, as referred to in paragraph 1, shall be adopted in accordance with the procedure referred to in Article 23 (2).

4.   After the authorisation of a substance in accordance with this Regulation, any business operator using the authorised substance or materials or articles containing the authorised substance shall comply with any condition or restriction attached to such authorisation.

5.   The applicant or any business operator using the authorised substance or material or article containing the authorised substance shall immediately inform the Commission of any new scientific or technical information, which might affect the safety assessment of the authorised substance in relation to human health. If necessary, the Authority shall then review the assessment.

6.   The granting of an authorisation shall not affect the general civil and criminal liability of any business operator in respect to the authorised substance, the material or article containing the authorised substance, and the food that is in contact with such a material or article.

Article 12

Modification, suspension and revocation of authorisation

1.   The applicant or any business operator using the authorised substance or material or article containing the authorised substance may, in accordance with the procedure laid down in Article 9 (1), apply for a modification of the existing authorisation.

2.  The application shall be accompanied by the following:

   a) a reference to the original application;
   b) a technical dossier containing the new information according to the guidelines as referred to in Article 9 (2);
   c) a new complete summary of the technical dossier in a standardised form.

3.   On its own initiative or following a request from a Member State or the Commission, the Authority shall evaluate whether the opinion or the authorisation is still in accordance with this Regulation, in accordance with the procedure laid down in Article 10 , where applicable. The Authority may, where necessary, consult the applicant.

4.   The Commission shall examine the opinion of the Authority without delay and prepare a draft specific measure to be taken.

5.   A draft specific measure modifying an authorisation shall specify any necessary changes in the conditions of use and, if any, in the restrictions attached to that authorisation.

6.   A final specific measure on the modification, suspension or revocation of the authorisation shall be adopted in accordance with the procedure referred to in Article 23 (2).

Article 13

Competent authorities of Member States

Each Member State shall notify to the Commission and to the Authority the name and address, as well as a contact point, of the national competent authority or authorities designated to be responsible in its territory for receiving the application for authorisation referred to in Articles 9 to 12. The Commission shall publish the name and address of the national competent authorities as well as the contact points notified in accordance with this Article.

Article 14

Administrative review

Any act adopted under, or failure to exercise, the powers vested in the Authority by this Regulation may be reviewed by the Commission on its own initiative or in response to a request from a Member State or from any person directly and individually concerned.

To this effect a request shall be submitted to the Commission within two months from the day on which the party concerned became aware of the act or omission in question.

The Commission shall take a decision within two months requiring, if appropriate, the Authority to undo its act or to remedy its failure to act.

Article 15

Labelling

1.  Without prejudice to the specific measures referred to in Article 5, materials and articles, which are not yet in contact with food when placed on the market, shall be accompanied by:

   a) the words "for food contact", or a specific indication as to their use, such as coffee-machine, wine bottle, soup spoon, or the symbol reproduced in Annex II and
   b) if necessary , special instructions to be observed for safe and appropriate use and
   c) the name or trade name and, in either case, the address or registered office of the manufacturer, processor, or seller responsible for placing on the market established within the Community and
   d) adequate labelling or identification to allow traceability of the material or article as referred to in Article 17 and
   e) in the case of active materials and articles, information on the permitted use or uses and other relevant information such as the name and quantity of the substances released by the active component to enable food business operators who use these materials and articles to comply with any other relevant Community provisions or, in their absence, national provisions applicable to food, including the provisions on food labelling.

2.    The information referred to in paragraph 1(a) shall not, however, be obligatory for any articles which, because of their characteristics, are clearly intended to come into contact with food.

3 .   The information required by paragraph 1 shall be conspicuous, clearly legible and indelible.

4.    Retail trade in materials and articles shall be prohibited if the information required under paragraph (1)(a), (b) and (e) is not given in a language easily understood by purchasers.

5.    Within its own territory, the Member State in which the material or article is marketed may, in accordance with the rules of the Treaty, stipulate that those labelling particulars shall be given in one or more languages which it shall determine from among the official languages of the Community.

6.    Paragraphs 4 and 5 shall not preclude the labelling particulars from being indicated in several languages.

7 .  At the retail stage, the information required by paragraph 1 shall be displayed on:

   a) the materials and articles or on their packaging; or
   b) labels affixed to the materials and articles or to their packaging; or
   c) a notice in the immediate vicinity of the materials and articles and clearly visible to purchasers; for the information referred to in paragraph 1(c), however, this option shall be open only if, for technical reasons, that information or a label bearing it cannot be affixed to the materials and articles at either the manufacturing or the marketing stage.

8 .  At the marketing stages other than the retail stage, the information required by paragraph 1 shall be displayed on:

   a) the accompanying documents; or
   b) the labels or packaging; or
   c) the materials and articles themselves.

9 .  The information provided for in paragraph 1(a), (b) and (e) shall be confined to materials and articles which comply with:

   a) the criteria laid down in Articles 3 and 4 and
   b) the specific measures referred to in Article 5 or, in their absence, with any national provisions applicable to these materials and articles .

Article 16

Declaration of compliance

1.   The specific measures referred to in Article 5 shall require that materials and articles covered by those measures be accompanied by a written declaration stating that they comply with the rules applicable to them.

Appropriate documentation shall be available to demonstrate such compliance. That documentation shall be made available to the competent authorities on demand.

2.   In the absence of specific measures, this Regulation does not prevent Member States from retaining or adopting national provisions for declarations of compliance for materials and articles .

Article 17

Traceability

1.   The traceability of the materials and articles shall be ensured at all stages in order to facilitate control, the recall of defective products, information to consumers and the attribution of responsibility .

2.   With due regard to technological feasibility, business operators shall have in place systems and procedures to allow the identification of the businesses from which and to which the materials or articles and, where appropriate, substances or products covered by this Regulation and its implementing measures used in their manufacture have been supplied. That information shall be made available to the competent authorities on demand.

3.   The materials and articles which are placed on the market in the Community shall be identifiable by an appropriate system which allows their traceability through labelling or relevant documentation or information.

Article 18

Safeguard measures

1.   When a Member State, as a result of new information or a reassessment of existing information, has detailed grounds for concluding that the use of a material or article endangers human health, although it complies with the relevant specific measures, it may temporarily suspend or restrict application of the provisions in question within its territory.

It shall immediately inform the other Member States and the Commission and give reasons for the suspension or restriction.

2.   The Commission shall examine as soon as possible, where appropriate after obtaining an opinion from the Authority, within the Committee referred to in Article 23 (1) the grounds adduced by the Member State referred to in paragraph 1 of this Article and shall deliver its opinion without delay and take appropriate measures.

3.   If the Commission considers that amendments to the relevant specific measures are necessary in order to remedy the difficulties referred to in paragraph 1 and to ensure the protection of human health, those amendments shall be adopted in accordance with the procedure referred to in Article 23 (2).

4.   The Member State referred to in paragraph 1 may retain the suspension or restriction until the amendments referred to in paragraph 3 have been adopted, or the Commission has declined to adopt such amendments .

Article 19

Public access

1.   Applications for authorisation, supplementary information from applicants and opinions from the Authority, excluding confidential information, shall be made accessible to the public in accordance with Articles 38, 39 and 41 of Regulation (EC) No 178/2002.

2 .   Member States shall handle applications for access to documents received under this Regulation in accordance with Article 5 of Regulation (EC) No 1049/2001.

Article 20

Confidentiality

1.   The applicant may indicate which information submitted under Articles 9 (1), 10(2) and 12(2) is to be treated as confidential because its disclosure may significantly harm his competitive position. Verifiable justification must be given in such cases.

2.  Information relating to the following shall not be considered confidential:

   a) the name and address of the applicant and the chemical name of the substance;
   b) information of direct relevance to the assessment of the safety of the substance;
   c) the analytical method or methods.

3.   The Commission shall determine, after consultation with the applicant, which information should be kept confidential and shall inform the applicant and the Authority of its decision.

4.   The Authority shall supply the Commission and the Member States with all information in its possession on request.

5.   The Commission, the Authority and the Member States shall take the necessary measures to ensure appropriate confidentiality of the information received by them under this Regulation, except for information which must be made public if circumstances so require in order to protect human health.

6.   If an applicant withdraws or has withdrawn an application, the Authority, the Commission and the Member States shall respect the confidentiality of commercial and industrial information provided, including research and development information as well as information on which the Commission and the applicant disagree as to its confidentiality.

Article 21

Sharing of existing data

The information in the application submitted in accordance with Articles 9 (1), 10(2) and 12(2) may be used for the benefit of another applicant, provided that the Authority considered that the substance is the same as the one for which the original application was submitted, including the degree of purity and the nature of impurities, and that the other applicant has agreed with the original applicant that such information may be used.

Article 22

Amendments to Annexes I and II

Amendments to Annexes I and II shall be adopted in accordance with the procedure referred to in Article 23 (2).

Article 23

Committee

1.   The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health instituted by Article 58(1) of Regulation (EC) No 178/2002 .

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

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

3.    The Committee shall adopt its rules of procedure.

Article 24

Inspection and control measures

1.   Member States shall carry out official controls in order to enforce compliance with this Regulation in accordance with relevant provisions of Community law relating to official food and feed controls.

2.   Where necessary and on the request of the Commission, the Authority shall assist in developing technical guidance on sampling and testing to facilitate a co-ordinated approach for the implementation of paragraph 1.

3.    The Community reference laboratory for materials and articles intended to come into contact with food and national reference laboratories established as laid down in Regulation (EC) No .../2004 [on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules] shall assist Member States in the implementation of paragraph 1 by contributing to a high quality and uniformity of analytical results.

Article 25

Sanctions

The Member States shall lay down the rules on sanctions applicable to infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The sanctions provided for must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission by ...(14) at the latest and shall notify it without delay of any subsequent amendment affecting them.

Article 26

Repeals

Directives 89/109/EEC and 80/590/EEC are repealed.

References to the repealed Directives shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex III.

Article 27

Transitional arrangements

Materials and articles that have been lawfully placed on the market before the date of application of this Regulation may be marketed until the stocks are exhausted.

Article 28

Entry into force

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

Article 15 shall apply from ...(15) *.

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

Done at , […]

For the European Parliament For the Council

The President The President

ANNEX I

List of groups of materials and articles which may be covered by specific measures

(1)   Active and intelligent materials and articles

(2)   Adhesives

(3)   Ceramics

(4)   Cork

(5)   Rubbers

(6)   Glass

(7)   Ion-exchange resins

(8)   Metals and alloys

(9)   Paper and board

(10)   Plastics

(11)   Printing inks

(12)   Regenerated cellulose

(13)    Silicones

(14 )   Textiles

(15 )   Varnishes and coatings

(16 )   Waxes

(17 )   Wood

ANNEX II

Symbol

ANNEX III

CORRELATION TABLE

Directive 89/109/EEC

This Regulation

Article 1

Article 1

-

Article 2

Article 2

Article 3

-

Article 4

Article 3

Article 5

-

Article 6

-

Article 7

-

Article 8

-

Article 9

-

Article 10

-

Article 11

-

Article 12

Article 4

-

-

Article 13

-

Article 14

Article 6

Article 15

-

Article 16

-

Article 17

Article 5

Article 18

Article 7

-

-

Article 19

-

Article 20

-

Article 21

Article

Article 22

Article 8

-

Article 9

Article 23

-

Article 24

-

Article 25

Article 10

Article 26

-

Article 27

Article 11

-

Article 12

-

Article 13

Article 28

Annex I

Annex I

Annex II

-

Annex III

Annex III

Directive 80/590/EEC

This Regulation

Annex

Annex II

(1) Not yet published in OJ.
(2) OJ C
(3) OJ C
(4) Position of the European Parliament of 31.3.2004.
(5) OJ L 40, 11.2.1989, p. 38. Directive as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1).
(6) OJ L 40, 11.2.1989, p. 27. Directive as last amended by Regulation (EC) No 1882/2003.
(7) OJ L 31, 1.2.2002, p. 1. Regulation as amended by Regulation (EC) No 1642/2003 (OJ L 245, 29.9.2003, p. 4).
(8) OJ L 151, 19.6.1980, p. 21.
(9) OJ L
(10) OJ L 145, 31.5.2001, p. 43.
(11) OJ L 184, 17. 7. 1999, p. 23.
(12) OJ L 109, 6.5.2000, p. 29. Directive as last amended by Directive 2003/89/EC (OJ L 308, 25.11.2003, p. 15).
(13) Pending such publication, applicants may consult the "Guidelines of the Scientific Committee on Food for the presentation of an application for safety assessment of a substance to be used in food contact materials prior to its authorisation"(http://europa.eu.int/comm/food/fs/sc/scf/out82_en.pdf).
(14)* Six months after the publication of this Regulation.
(15)** Two years after the adoption of this Regulation.


Development cooperation with South Africa ***I
Resolution
Consolidated text
European Parliament legislative resolution on the proposal for a European Parliament and Council regulation amending Regulation (EC) No 1726/2000 on development cooperation with South Africa (COM(2003) 627 – C5-0495/2003 – 2003/0245(COD))
P5_TA(2004)0236 A5-0132/2004

(Codecision procedure: first reading)

The European Parliament ,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2003) 627 )(1) ,

–   having regard to Articles 251(2) and 179 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C5-0495/2003 ),

–   having regard to Rule 67 of its Rules of Procedure,

–   having regard to the report of the Committee on Development and Cooperation (A5-0132/2004 ),

1.   Approves the Commission proposal as amended;

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

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

Position of the European Parliament adopted at first reading on 31 March 2004 with a view to the adoption of Regulation (EC) No .../2004 of the European Parliament and of the Council amending Regulation (EC) No 1726/2000 on development cooperation with South Africa

P5_TC1-COD(2003)0245


THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 179 thereof,

Having regard to the proposal from the Commission(2) ,

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

Whereas

(1)   Regulation (EC) No 1726/2000 of the European Parliament and of the Council of 29 June 2000 on development cooperation with South Africa(4) required the Commission to submit to the European Parliament and to the Council a mid-term review by 31 October 2003 at the latest. On the basis of that mid-term review, certain amendments to Regulation (EC) No 1726/2000 have been suggested.

(2)    The mid-term review includes suggestions and proposals for improving the implementation of development cooperation with South Africa, some of which were already made in the Country Strategy Evaluation of 2002 and have been taken into account in the 2003-2005 Indicative Programme. They concern inter alia mainstreaming of gender issues at all levels of the project cycle from planning to implementation; streamlining of administrative procedures; improving criteria for assessing project and programme design and clarification of the conditions for granting contributions from the European Programme for Reconstruction and Development (EPRD) to regional programmes.

(3 )   In accordance with Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities' financial interests(5) it is possible to provide funding to the Republic of South Africa through direct budget support. Regulation (EC) No 1726/2000 could, however, be interpreted as excluding untargeted budget support. In addition, Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities(6) contains in Title IV of Part Two specific provisions for "External Actions". It is, therefore, appropriate to bring Regulation (EC) No 1726/2000 into line with Regulation (EC, Euratom) No 1605/2002 and with Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002, laying down detailed rules for the implementation of Regulation (EC, Euratom) No 1605/2002 (7) .

(4 )   In view of the implementation of the European Programme for Reconstruction and Development, and in particular of the 2000-2002 Multi-annual Indicative Programme, Regulation (EC) No 1726/2000 should be adjusted, in particular in relation to the adoption of sector-wide Programmes, funding through budget support, and the joint funding of projects and programmes in the field of regional cooperation and integration.

(5 )   Regulation (EC) No 1726/2000 entered into force in 2000 and expires on 31 December 2006. However, Article 6(1) requires triennial programming to be carried out. In order for programmes to correspond to the period of validity of the Regulation, provision should also be made for four-year Indicative Programmes.

(6 )   The Partnership Agreement between the members of the African, Caribbean and Pacific Group of States, of the one part, and the European Community and its Member States, of the other part(8) , to which South Africa is a signatory was signed in Cotonou on 23 June 2000. Protocol 3 to that Agreement defines South Africa's qualified status under the Agreement.

(7 )   Council Decision 1999/753/EC of 29 July 1999 (9) approved the provisional application of the Agreement on Trade, Development and Cooperation between the European Community and its Member States and the Republic of South Africa. That Agreement stipulates in its Annex X that the Community will provide assistance for the restructuring of the South African wine and spirits sector and for the marketing and distribution of South African wines and spirits. The two corresponding Agreements on trade in wine and spirits have been approved by Council Decision 2002/51/EC of 21 January 2002 (10) and by Council Decision 2002/52/EC of 21 January 2002 (11) respectively. It is, therefore, necessary to include an additional amount in the financial reference amount provided for by Regulation (EC) No 1726/2000.

(8 )   In practice the European Development Fund Committee has been acting in the context of Regulation (EC) No 1726/2000 as the "South Africa Committee". It is appropriate to formally establish that Committee.

(9 )   Article 8(5) of Regulation (EC) No 1726/2000 requires the Commission to consult the Committee on financing decisions it intends to take concerning projects and programmes of a value of over EUR 5 million. For the sake of sound financial management and rationalisation of procedures, it is appropriate to raise this ceiling to EUR 8 million.

(10 )   Regulation (EC) No 1726/2000 should, therefore, be amended accordingly,

HAVE ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 1726/2000 is amended as follows:

1.    Article 2(1) is replaced by the following:

"

1.    Programmes shall focus on the fight against poverty, take into account the needs of the previously disadvantaged communities, integrate the environmental dimension of development and mainstream gender equality, in particular strengthening women's participation at all levels of policy, programming and implementation. In all these programmes special attention shall be paid to the strengthening of institutional capacities.

"

(2 )   In Article 2(2) the introductory phrase is replaced by the following:

"

Development cooperation to be carried out under this Regulation shall focus mainly on the areas of cooperation referred to in Article 8 of Protocol 3 on South Africa to the Cotonou Agreement and in particular on:

"

(3 )  Article 4 is amended as follows:

  (a) Paragraph 2 is amended as follows:
   i) in the first subparagraph, the introductory phrase is replaced by the following:"
2.   Community financing may cover: "
   ii) point (a) is replaced by the following:"
   a) government budget expenditures to support reforms and policy implementation in the priority sectors identified through a policy dialogue, using the most appropriate instruments including budgetary support and other specific forms of budgetary aid.
"
   iii) the second subparagraph is replaced by the following:"
Part of the financing may be channelled towards targeted final beneficiaries (e.g. emerging entrepreneurs) in the form of risk capital or other forms of financial participation. The European Investment Bank may be associated to the management of these funds, as appropriate. The resources made available under this Regulation shall not be used in a manner that will permit unfair competition. "
   b) the following paragraph 4a is inserted:"
4a. Financing of individual projects and programmes for regional cooperation and integration shall be provided from the European Programme for Reconstruction and Development (EPRD) and/or from regional funds under the European Development Fund (EDF).
The Commission shall strive to ensure balanced funding from both sources at the level of the Multi-annual Indicative Programme, by committing to regional cooperation and integration an indicative percentage of the EPRD similar to the share of EDF funds dedicated to regional cooperation and integration in the Financial Protocol to the Cotonou Agreement. "

(4 )   Article 5 is deleted

(5 )   Article 6 is replaced by the following:

"

Article 6

Programming

1.   Multi-annual indicative programming shall be carried out in the context of close contacts with the South African Government and taking account of the results of the coordination referred to in Article 4(6) and (7). The indicative programming process will fully respect the principle of recipient-led programming.

2.   In order to prepare for each programming exercise, in the context of increased coordination with the Member States, including on the spot, the Commission shall draw up a Country Strategy Paper in dialogue with the South African government. This Country Strategy Paper shall take into account the results of the most recent overall evaluation of operations financed under Regulation (EC) No 2259/96 and under this Regulation and of other regular evaluations of operations. It will be linked to a problem-oriented analysis, and integrate cross-cutting issues such as poverty reduction, gender equality, environment and sustainability. A draft of the Multi-annual Indicative Programme will be annexed to the Country Strategy Paper. A limited number of sectors of cooperation based on the areas identified in Article 2 of this Regulation will be selected. For these sectors, modalities and accompanying measures will be set out. As far as possible performance indicators will be developed in order to facilitate the implementation of the objectives and its evaluation of impact. The Country Strategy Paper and the draft Multi-annual Indicative Programme will be examined by the Committee referred to in Article 8(1), hereafter referred to as the "Committee". The Committee shall give its opinion in accordance with the procedure referred to in Article 8(2).

3.   The Multi-annual Indicative Programme will be negotiated and signed by the Commission and the South African Government. The final result of the negotiations will be sent to the Committee for information. If requested by one or more Committee members, this document will be discussed by the Committee.

4.   The Committee shall once a year review the functioning, results and continued relevance of the Country Strategy Paper and the Multi annual Indicative Programme. If evaluations or other relevant developments so indicate, the Committee may invite the Commission to negotiate with the South African Government amendments to the Multi-annual Indicative Programme.

5.   The Committee shall once a year, on the basis of a presentation by the Commission, discuss the general guidelines for the operations to be carried out in the year ahead.

"
   (6) Article 7(2) is deleted.

(7)   Article 8 is amended as follows:

   a) paragraph 1 is replaced by the following:"
1.   The Commission shall be assisted by the South Africa Committee, hereinafter referred to as 'the Committee'. "
   b) in paragraphs 5 and 6 the amount of "EUR 5 million" is replaced by the amount of "EUR 8 million".

(8)    In Article 10(1) the amount of "EUR 885.5 million" is replaced by the amount of "EUR 900.5 million".

Article 2

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

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

Done at ,

For the European Parliament For the Council

The President The President

(1) Not yet published in OJ.
(2) OJ C …
(3) Position of the European Parliament of 31 March 2004.
(4) OJ L 198, 4.8.2000, p. 1.
(5) OJ L 312 , 23.12.1995, p. 1.
(6) OJ L 248, 16.9.2002, p. 1.
(7) OJ L 357, 31.12.2002, p. 1.
(8) OJ L 317, 15.12.2000, p. 3.
(9) OJ L 311, 4.12.1999, p. 1.
(10) OJ L 28, 30.1.2002, p. 3.
(11) OJ L 28, 30.1.2002, p. 112.


Fluorinated greenhouse gases ***I
Resolution
Consolidated text
European Parliament legislative resolution on the proposal for a European Parliament and Council regulation on certain fluorinated greenhouse gases (COM(2003) 492 – C5-0397/2003 – 2003/0189(COD))
P5_TA(2004)0237 A5-0172/2004

(Codecision procedure: first reading)

The European Parliament,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2003) 492 )(1) ,

–   having regard to Articles 251(2) and 95 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C5-0397/2003 ),´

–   having regard to the opinion of the Committee on Legal Affairs and the Internal Market on the proposed legal basis,

–   having regard to Rules 67 and 63 of its Rules of Procedure,

–   having regard to the report of the Committee on the Environment, Public Health and Consumer Policy and the opinion of the Committee on Industry, External Trade, Research and Energy (A5-0172/2004 ),

1.   Approves the Commission proposal as amended;

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

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

Position of the European Parliament adopted at first reading on 31 March 2004 with a view to the adoption of Regulation (EC) No …./2004 of the European Parliament and of the Council on certain fluorinated greenhouse gases

P5_TC1-COD(2003)0189


THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission(2) ,

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

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

Whereas:

(1)   The sixth Environmental Action Programme: Environment 2010: Our Future, Our Choice(5) identifies climate change as a priority for action. That Programme recognises that the Community is committed to achieving an 8% reduction in emissions of greenhouse gases within 2008 to 2012 compared to 1990 levels, and that in the longer-term global emissions of greenhouse gases will need to be reduced by approximately 70% compared to 1990 levels.

(2)   The ultimate objective of the United Nations Framework Convention on Climate Change, which was approved by Council Decision 94/69/EC of 15 December 1993 concerning the conclusion of the United Nations Framework Convention on Climate Change(6) , is to achieve stabilisation of greenhouse gas concentrations in the atmosphere at a level which prevents dangerous anthropogenic interference with the climate system.

(3)   Council Decision 2002/358/EC of 25 April 2002, concerning the conclusion of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfillment of commitments thereunder(7) commits the Community and its Member States to reduce their aggregate anthropogenic emissions of greenhouse gases listed in Annex A to the Kyoto Protocol by 8% compared to 1990 levels in the period 2008 to 2012.

(4)    Annex II of Decision 2002/358/EC lays down different reduction targets for individual Member States. The Member States are therefore required to take individual measures. Individual Member States must therefore also be able to take, or maintain, adequate measures to attain their national reduction targets.

(5 )   Provision should be made for the prevention and minimisation of emissions of fluorinated greenhouse gases, without prejudice to Council Directive 75/442/EEC of 15 July 1975 on waste(8) , Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control(9) , to Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of life vehicles(10) and to Directive 2002/96/EC of the European Parliament and of the Council of 27 January 2003 on waste electrical and electronic equipment(11) .

(6)    Since alternatives to hydrofluorocarbons (HFCs), perfluorocarbons (PFCs) and sulphur hexafluoride (SF6) do exist for the vast majority of applications, it is essential to restrict their use to the applications where there is no alternative available.

(7 )   Member States are taking or planning differing measures to reduce emissions of fluorinated greenhouse gases. Such differing measures by Member States could create obstacles or distort competition within the internal market. It is therefore appropriate to take measures at Community level to ensure that the internal market is protected through the harmonisation of requirements on monitoring, containment and marketing and use of fluorinated greenhouse gases.

(8 )   Marketing and use restrictions for certain applications of fluorinated greenhouse gases are considered appropriate to prevent distortions in the internal market that could result from differing measures taken by Member States. Where viable alternatives are available and improvement of containment and recovery is not feasible, voluntary initiatives by some industry sectors needs to be taken into account as well as the fact that the development of alternatives is still ongoing.

(9 )   The Kyoto Protocol requires reporting on emissions of fluorinated greenhouse gases and data on the production, imports and export of fluorinated greenhouse gases can help to validate the accuracy of these reports. Annual reporting should therefore be required from producers, importers and exporters of fluorinated greenhouse gases. In order to fulfil their obligations under the Kyoto Protocol to record and report on emissions of fluorinated greenhouse gases on their territory, the Member States should also be able to stipulate additional national reporting requirements.

(10 )   Emissions of hydrofluorocarbon-134a (HFC-134a) from air conditioners in motor vehicles are of growing concern because of their impact on climate change. Cost-effective and safe alternatives are expected to be available imminently. These alternatives are not damaging or are considerably less damaging to the climate and do not adversely affect vehicles" energy consumption and related carbon dioxide emissions .

(11 )   In order to facilitate the monitoring and verification of the leakage rates of air conditioning systems in new vehicles, the Commission will promote the preparation of European standards and will take other necessary measures in order to amend the pertinent European vehicle type approval legislation.

(12)    Putting into service, servicing, maintenance, as well as recovery and inspection activities are international professions, which should be carried out by adequately trained and certified professionals. The development of a European set of criteria for professional qualifications is essential for achieving the objective of this Regulation.

(13 )   Provision should be made for the monitoring, evaluation and review of the provisions contained in this Regulation.

(14 )   Member States should lay down rules on sanctions applicable to infringements of this Regulation and ensure that those rules are implemented. Those sanctions must be effective, proportionate and dissuasive.

(15 )   This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.

(16 )   Since, in order to preserve the internal market, the objective of the proposed action, namely the containment, reporting, control of use and placing on the market of certain fluorinated greenhouse gases, cannot be sufficiently achieved by the Member States acting individually, and can therefore by reason of the scale and effects of the proposed action be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(17 )   The measures necessary for the implementation of this Regulation should be adopted in accordance with Article 4 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(12) through the committee established by Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer (13) ,

HAVE ADOPTED THIS REGULATION:

Article 1

Scope

This Regulation shall apply to the containment, the use and the recovery of fluorinated greenhouse gases, including hydrofluorocarbons, perfluorocarbons and sulphur hexafluoride as listed in Annex A to the Kyoto Protocol, to the placing on the market and use of products and equipment containing those gases and to the reporting of data on those gases. An indicative list of the gases covered by this Regulation is given in Annex I.

This Regulation shall apply without prejudice to Directives 75/442/EEC, 96/61/EC, 2000/53/EC and 2002/96/EC.

Article 2

Definitions

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

   a) "producer" means any natural or legal person manufacturing fluorinated greenhouse gases within the Community;
   ( b ) "placing on the market" means the supplying or making available to third parties, against payment or free of charge, of fluorinated greenhouse gases governed by this Regulation, or of products and equipment containing such gases or requiring them for their operation. With regard to vehicles, "placing on the market" relates to new vehicle types;
   ( c ) "receptacle" means transportable pressure equipment, as defined in Article 2(1) of Council Directive 1999/36/EC of 29 April 1999 (14) , for the supply of fluorinated greenhouse gases. This definition does not cover containers used in laboratories for analytical purposes and metered dose inhalers;
   ( d ) "recovery" means the collection and storage of fluorinated greenhouse gases from, for example, machinery, equipment and containment vessels during their servicing or disposal ;
   ( e ) "recycling" means the reuse of a recovered fluorinated greenhouse gas following a basic cleaning process such as filtering and drying. For refrigerants, recycling normally involves recharge back into equipment as is often carried out on site;
   ( f ) "reclamation" means the reprocessing and upgrading of a recovered fluorinated greenhouse gas through such processes as filtering, drying, distillation and chemical treatment in order to restore the substance to a specified standard of performance, which often involves processing off site at a central facility;
   g) "destruction " means the irreversible transformation of the chemical nature of a substance;
   ( h ) "vehicles" means any motor vehicle of categories M1 and class I of N1, as defined in Annex II to Directive 70/156/EEC(15) ;
   i) "hydrofluorocarbon" means an organic compound consisting of carbon, hydrogen and fluorine where no more than six carbon atoms are contained in the molecule, whether isolated or in a mixture or preparation, and whether it is virgin, recovered, recycled or reclaimed;
   j) "perfluorocarbon" means an organic compound consisting solely of carbon and fluorine, and where no more than six carbon atoms are contained in the molecule, whether isolated or in a mixture or preparation, and whether it is virgin, recovered, recycled or reclaimed;
   k) "fluorinated greenhouse gases" means hydrofluorocarbons (HFCs), perfluorocarbons (PFCs) and sulphur hexafluoride (SF6) and preparations containing these substances except where the preparation is a controlled substance under Regulation (EC) No 2037/2000 or where the preparation has a global warming potential of less than 15;
   l) "global warming potential" means either the 100 year time horizon Global Warming Potential (GWP) published in the second assessment report adopted by the Intergovernmental Panel on Climate Change (IPCC) or, where this value is not published in that report, a Global Warming Potential (GWP) determined in accordance with IPCC methodology;
   ( m ) "air conditioning systems containing fluorinated greenhouse gases with a global warming potential higher than 50 " means air conditioning systems that use hydrofluorocarbons the global warming potential of which exceeds 50 as specified in Annex I. Where applicable to motor vehicles, it refers to vehicle air conditioning systems designed to condition air in the passenger cabin that use hydrofluorocarbons the global warming potential of which exceeds 50 as specified in Annex I;
   ( n ) "technical aerosols" means aerosols used in maintenance, repair, cleaning, testing, disinfecting, manufacturing, installation and other applications where a non-flammable formulation is required for safety reasons, including silly string aerosols as referred to in the Annex to Directive 94/48/EC(16) ;
   o) "small-scale manufacturers" means manufacturers of vehicles who sell no more than 50 000 vehicles per calendar year in the European Union.

Article 3

Prevention

All measures that are technically and economically feasible shall be taken to prevent and minimise emissions of fluorinated greenhouse gases.

Article 4

Containment

1.   Owners and operators shall take all measures that are technically and economically feasible to prevent and minimise emissions of fluorinated greenhouse gases.

2.    Before putting refrigeration, air-conditioning and heat-pump systems into service, all components and the whole system shall undergo standardised tests defined in accordance with the procedure referred to in Article 15(2).

3.    Operators of stationary refrigeration, air-conditioning and heat-pump equipment and fire protection systems not designed in accordance with the ISO 14520 standard and containing fluorinated greenhouse gases shall ensure that, when they are put into service and, subsequently, in accordance with paragraph 5, systems including at least one circuit containing 3kg or more of fluorinated greenhouse gases, are inspected by a duly authorised company or person.

4 .  Subject to paragraph 5 , the owner shall ensure that stationary - and mobile, with the exception of the systems referred to in Article 10 - refrigeration, air-conditioning and heat-pump equipment and fire protection systems containing fluorinated greenhouse gases, except equipment and systems exclusively for personal use, shall be inspected for leakage after maintenance and on a regular basis according to the following schedule:

   a) equipment including at least one independently charged circuit containing 3kg or more of fluorinated greenhouse gases shall be inspected by accredited companies/certified personnel at least once every year;
   b) equipment containing 30kg or more of fluorinated greenhouse gases shall be inspected by accredited companies/certified personnel four times per year;
   c) equipment containing 300kg or more of fluorinated greenhouse gases shall be inspected by accredited companies/certified personnel monthly.

In the case of point (a), where leakage is detected and rectified, an additional inspection shall be carried out one month later.

In the case of points (b) and (c), where no leakage is detected on three consecutive inspections, the frequency of inspections shall be halved to six months and two months respectively.

In the case of fire protection equipment where there is an existing inspection regime in place to meet the ISO 14520 standard, those inspections may also fulfill the obligations of this Regulation provided they are at least as frequent.

5 .   Where an integral or mobile leakage detection system is in place so as to monitor areas where leakage is likely , the inspections referred to in paragraph 4(b) shall be carried out twice a year and those referred to in paragraph 4(c) four times a year. The frequency of inspections shall be reduced to once a year in the case of paragraph 4(b) and twice a year in the case of paragraph 4(c) if no leakage is detected during inspections in three consecutive years.

6 .   Operators of stationary refrigeration, air-conditioning and heat-pump equipment and fire protection systems including at least one independently charged circuit containing 300kg or more of fluorinated greenhouse gases shall install leakage detection systems to monitor the areas where leakage is likely .

7 .   Owners and operators of stationary refrigeration, air-conditioning and heat-pump equipment and fire protection systems containing 3kg or more of fluorinated greenhouse gases shall maintain records on the quantity and type of fluorinated greenhouse gases installed, any quantities added and the quantity recovered during maintenance and servicing. The records shall be made available on request to the competent authority and to the Commission.

8.    Leaks shall be identified and repaired as soon as practicable by a duly certified person.

9.    Entities that install, distribute or maintain fire protection systems shall register with the relevant competent authority.

Article 5

Recovery

1.  Fluorinated greenhouse gases contained in the following types of equipment shall be recovered for recycling, reclamation or destruction:

   a) the cooling circuits of refrigeration, air-conditioning and heat-pump equipment;
   b) equipment containing solvents;
   c) fire protection systems and fire extinguishers ; and
   d) high voltage switch gear.

Recovery shall take place during the servicing and maintenance of that equipment and during the final disposal thereof.

2.   Unused fluorinated greenhouse gases contained in refillable containers shall be recovered for recycling, reclamation or destruction.

3.   Fluorinated greenhouse gases contained in other products and equipment shall be recovered, to the extent that it is technically feasible and cost-effective for recycling, reclamation or destruction.

4.    Member States shall ensure that a publicly accessible electronic register of accredited companies/certified personnel is established.

Article 6

Training and certification programmes

1.   Member States shall establish training and certification/accreditation programmes for the personnel/servicing company handling fluorinated greenhouse gases including those involved in putting into service, servicing and maintenance as well as the recovery and inspection activities provided for in Article 4(2) to (7) and Article 5, based on a set of criteria that guarantee professional standards or bring already existing schemes into line with the requirements of this Regulation .

The owner of the equipment/system shall be responsible for ensuring that the personnel/servicing company involved has the required certification/accreditation.

Member States shall designate the competent authorities responsible for delivering mandatory certification/accreditation to companies and personnel in the industrial sectors concerned and for monitoring proper implementation of the certification/accreditation scheme as well as continuing compliance with the required competence and qualifications. The certification/accreditation applies to:

   putting into service,
   responsible servicing,
   maintenance,
   recovery and inspection activities as provided for in Articles 4 and 5.

2.    Certification/accreditation programmes shall ensure that the personnel/servicing company involved in carrying out the activities provided for in Articles 4 and 5 have obtained a competence in applicable regulations and standards as well as competence in handling safely the type and size of equipment that they will be handling in their profession.

3.    If a Member State considers that the set of criteria for professional qualifications which attest to a sufficient level of competence for the pursuit of putting into service, servicing, maintenance as well as the recovery and inspection activities as provided for in Articles 4 and 5, on the basis of which the competent authorities accredit the qualifications obtained in another Member State does not offer adequate guarantees with regard to professional qualifications, it shall inform the Commission accordingly.

The Commission shall, if appropriate, take a decision establishing essential requirements and mutual recognition for the training and certification/accreditation programmes in accordance with the procedure referred to in Article 16(2).

4 .   Within two years of the entry into force of this Regulation, Member States shall notify the Commission of information on the training and certification/accreditation programmes referred to in paragraphs 1 and 2. The Commission shall assess whether a programme is in conformity with paragraph 2 and if so approve it in accordance with the procedure referred to in Article 15(2). Member States shall give recognition to the certificates issued in another Member State and shall not restrict the freedom to provide services or the freedom of establishment for reasons relating to the certification/accreditation issued in another Member State provided that the certification/accreditation programmes have been approved by the Commission.

5 .   Within one year of the entry into force of this Regulation, the Commission, in accordance with the procedure referred to in Article 15 (2), shall determine the format of such notifications.

Article 7

Reporting

1.   By 31 March each year from the second calendar year following entry into force of this Regulation , the following data in respect of the preceding year shall be communicated to the Commission:

(a)  Each producer of fluorinated greenhouse gas who produces more than one tonne per annum shall communicate:

   its total production of each fluorinated greenhouse gas ;
   the quantities of each fluorinated greenhouse gas placed on the market in the Community, including estimates of quantities produced for a range of applications;
   any quantities of each used fluorinated greenhouse gas imported for recycling, for reclamation or for destruction;
   any quantities recycled, reclaimed or destroyed of each fluorinated greenhouse gas ;

(b)  Each importer of fluorinated greenhouse gases, including any producers who also import, shall communicate:

   any quantities of each fluorinated greenhouse gas imported or supplied in the Community ;
   the quantities of each fluorinated greenhouse gas placed on the market in the Community, including estimates of quantities imported for a range of applications;
   any quantities of each used fluorinated greenhouse gas imported for recycling, for reclamation or for destruction;
   an estimate of the expected emissions over the life-cycle of the substance;

(c)  Each exporter who exports more than one tonne per annum, including any producers who also export, shall communicate:

   any quantities of each fluorinated greenhouse gas exported from the Community;
   any quantities of each used fluorinated greenhouse gas exported for recycling, for reclamation or for destruction.

2.    The Commission shall undertake a survey to assess the impact of the import and export of equipment containing fluorinated greenhouse gases on the above emission estimates.

3.    The competent Member State authorities shall review every two years a representative sample of the records for each of the categories indicated in Article 4(4) and report to the Commission estimated emissions. The format of the report shall be established in accordance with the procedure referred to in Article 15(2) within one year of the entry into force of this Regulation.

4 .   The format of the report referred to in paragraph 1 shall be established in accordance with the procedure referred to in Article 15 (2) within one year of the entry into force of this Regulation.

5 .   The Commission shall take appropriate steps to protect the confidentiality of the information submitted to it.

6.    In the case of fire protection systems, actual emission figures equating to data on refills shall be recorded as set out in Article 4(7), in lieu of the requirements set out in paragraphs 1 and 4 of this Article. Such data shall be recorded by the trained and certified personnel as defined in Article 6(1).

7 .   The Commission may modify the reporting requirements in paragraph 1 in accordance with the procedure referred to in Article 15 (2), to improve the practical application of those reporting requirements.

Article 8

Control of use

1.   The use of sulphur hexafluoride in magnesium die-casting shall be prohibited from 1 January 2007.

2.   The use of sulphur hexafluoride for the filling of vehicle tyres shall be prohibited from the date of entry into force of this Regulation .

Article 9

Placing on the market

The placing on the market of products and equipment which contain fluorinated greenhouse gases or require them for their operation in applications listed in Annex II shall be prohibited as specified in that Annex.

Member States shall promote the placing on the market of refrigeration and air-conditioning equipment using gases with a global warming potential of less than 150. If Member States introduce fiscal or other incentives to encourage the placing on the market of such equipment, they shall notify these measures to the Commission.

Article 10

Air-conditioning systems in new vehicles

1.   From 31 December 2006 , any person placing new vehicle types on the market with air-conditioning systems containing fluorinated greenhouse gases with a global warming potential higher than 150 shall ensure that the rate of leakage has been verified as not exceeding the limit values laid down under a specific harmonised test procedure adopted by the Commission .

2.    The Commission shall specify a standard for measuring the leak rate.

3 .   From 1 January 2011 , Member States shall no longer issue EC type-approval pursuant to Directive 70/156/EEC for any new type of vehicle if the global warming potential of the fluorinated greenhouse gases used in the air-conditioning system is higher than 50. For small-scale manufacturers, this provision shall apply from 1 January 2013.

4.    From 1 January 2014, Member States shall refuse the registration and shall prohibit the sale, entry into service or use of new vehicles fitted with an air-conditioning system using fluorinated greenhouse gases with a global warming potential higher than 50.

5.    Member States shall promote the installation of air-conditioning systems using a gas, such as CO 2 , that is efficient and which has a global warming potential of less than 100. If Member States introduce fiscal or other incentives to encourage the installation of systems with lower global warming potential, they shall notify these measures to the Commission.

6.    Member States may grant tax or financial concessions for the conversion of existing vehicles in operation if air-conditioning systems using fluorinated greenhouse gases with a global warming potential of less than 50 are installed.

Article 11

Promotion of alternatives

Member States shall promote the placing on the market of equipment using gases with a global warming potential of less than 100. If Member States introduce fiscal or other incentives to encourage the placing on the market of such equipment they shall notify these measures to the Commission.

Article 12

Information to consumers

Member States shall ensure that consumers and citizens are informed of the global warming potential of products containing fluorinated greenhouse gases.

Article 13

Progress report

The Commission shall, no later than two years after the entry into force of this Regulation, submit to the European Parliament and the Council a progress report on the development of climate-friendly air-conditioning systems. On the basis of this report, the Commission shall review the dates for their introduction pursuant to Article 10(1) and (3), and shall confirm these or, where necessary, submit proposals.

Article 14

Review

1.   On the basis of progress in potential containment or replacement of fluorinated greenhouse gases in air-conditioning and refrigeration systems, the Commission shall review the present legislation and report thereon to the European Parliament and the Council by 31 December 2005 at the latest. The report shall be accompanied where necessary by legislative proposals.

2.    Within two years after the entry into force of this Regulation, the Commission shall submit a report to the European Parliament and the Council on possible actions to gradually remove HFC in new air-conditioning, refrigeration and heat-pump systems based on an assessment of alternative technologies with lower total (direct and indirect) greenhouse gas emissions.

3 .  Within five years after the entry into force of this Regulation, the Commission shall submit a report to the European Parliament and the Council based on the experience gained from the application of this Regulation. In particular, the report shall:

   assess the impact of relevant provisions on emissions and projected emissions of fluorinated greenhouse gases and examine the cost-effectiveness of these provisions;
   evaluate the training and certification programmes established by Member States under Article 6 (1);
   assess the need for European Community standards relating to the control of emissions of fluorinated greenhouse gases from equipment, including technical requirements with respect to the design of products and equipment;
   assess the need for the development and dissemination of notes describing best available techniques and best environmental practices concerning the prevention and minimisation of emissions of fluorinated greenhouse gases;
   include an overall summary of the development of the state of technology, experience gained, environmental requirements and any impacts on the functioning of the internal market;
   examine whether the rules and objectives set out in Article 5 concerning recovery, reclamation or destruction of fluorinated greenhouse gases have been complied with and achieved, and assess whether existing definitions, requirements and authorisation procedures for cross-border transport of fluorinated greenhouse gases for recovery or thermal recycling require revision.

4.   The report shall, where necessary, be accompanied by proposals for revision of the relevant provisions of this Regulation, and for any modifications to Directive 2001/56/EC of the European Parliament and of the Council of 27 September 2001 relating to heating systems for motor vehicles and their trailers (17) to take account of necessary control procedures for the measurement of the rate of leakage from vehicle air-conditioning systems .

Article 15

Committee on fluorinated greenhouse gases

1.   The Commission shall be assisted by a standing committee on fluorinated greenhouse gases.

2.   Where reference is made to this paragraph, Article 4 of Decision 1999/468/EC shall apply, having regard to Article 7 and Article 8 thereof.

3.   The period provided for in Article 4(3) of Decision 1999/468/EC shall be set at one month.

Article 16

Committee on the recognition of professional qualifications

1.    The Commission shall be assisted by a Committee on the recognition of professional qualifications.

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

The period provided for in Article 5(6) of Decision 1999/468/EC shall be two months.

3.    The Committee may be asked to give its opinion on any other matter relating to implementation of this Regulation.

4.    The Committee shall adopt its rules of procedure.

Article 17

Sanctions

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

2.   Member States shall notify the rules on sanctions to the Commission by one year after the entry into force of this Regulation and shall also notify it without delay of any subsequent amendment affecting those rules.

Article 18

Entry into force

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

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

Done at […],

For the European Parliament For the Council

The President The President

ANNEX I

Fluorinated greenhouse gases

Fluorinated greenhouse gas

Chemical Formula

Global Warming Potential

Sulphur hexafluoride

SF6

23900

Hydrofluorocarbons (HFCs) :

HFC-23

CHF3

11700

HFC-32

CH2 F2

650

HFC-41

CH3 F

150

HFC-43-10mee

C5 H2 F10

1300

HFC-125

C2 HF5

2800

HFC-134

C2 H2 F4

1000

HFC-134a

CH2 FCF3

1300

HFC-152a

C2 H4 F2

140

HFC-143

C2 H3 F3

300

HFC-143a

C2 H3 F3

3800

HFC-227ea

C3 HF7

2900

HFC-236fa

C3 H2 F6

6300

HFC-245ca

C3 H3 F5

560

HFC-365mfc

CF3 CH2 CF2 CH3

890

Perfluorocarbons (PFCs):

Perfluoromethane

CF4

6500

Perfluoroethane

C2 F6

9200

Perfluoropropane

C3 F8

7000

Perfluorobutane

C4 F10

7000

Perfluoropentane

C5 F12

7500

Perfluorohexane

C6 F14

7400

Perfluorocyclobutane

c-C4 F8

8700

ANNEX II

Fluorinated greenhouse gas

Application

Date of prohibition

Fluorinated greenhouse gases with a global warming potential higher than 50

Air conditioning in passenger cars and light commercial vehicles (new vehicle types)

1 January 2011

(1 January 2013) (18)

Sulphur hexafluoride, hydrofluorocarbons and perfluorocarbons

Non-refillable containers, except for laboratory and analytical use and metered dose inhalers

One year after the date of entry into force

Hydrofluorocarbons and perfluorocarbons

Refrigerants in non-confined direct-evaporation systems

Date of entry into force

Sulphur hexafluoride, hydrofluorocarbons and perfluorocarbons

Windows

Two years after the date of entry into force

Sulphur hexafluoride

Footwear

Date of entry into force

Hydrofluorocarbons

One component foams, except when required to meet national safety standards

One year after the date of entry into force

Hydrofluorocarbons

Aerosols, except when used in technical aerosols and metered dose inhalers or other pharmaceutical products

Two years after the date of entry into force

Hydrofluorocarbons and perfluorocarbons

Footwear

1 July 2006

(1) Not yet published in OJ.
(2) OJ C […] , […] , p. […] .
(3) OJ C […] , […] , p. […] .
(4) Position of the European Parliament of 31 March 2004 .
(5) Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme (OJ L 242, 10.9.2002, p. 1).
(6) OJ L 33, 7.2.1994, p. 11.
(7) OJ L 130, 15.5.2002, p. 1.
(8) OJ L 194, 25.7.1975, p. 39. Directive as last amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1).
(9) OJ L 257, 10.10.1996, p. 26. Directive as last amended by Regulation (EC) No 1882/2003.
(10) OJ L 269, 21.10.2000, p. 34. Directive as amended by Commission Decision 2002/525/EC (OJ L 170, 29.6.2002, p. 81).
(11) OJ L 37, 13.2.2003, p. 24. Directive as amended by Commission Directive 2003/118/EC (OJ L 345, 31.12.2003, p. 106).
(12) OJ L 184, 17.7.1999, p. 23.
(13) OJ L 244, 29.9.2000, p. 1. Regulation as last amended by Commission Decision 2004/232/EC (OJ L 71, 10.3.2004, p. 28).
(14) OJ L 138, 1.6.1999, p. 20.
(15) Council Directive 70/156/EEC of 6 February 1970 on the approximation of the laws of the Member States relating to the type-approval of motor vehicles and their trailers (OJ L 42, 23.2.1970, p. 1). Directive as last amended by Directive 2004/3/EC of the European Parliament and of the Council (OJ L 49, 19.2.2004, p. 36).
(16) Directive 94/48/EC of the European Parliament and of the Council of 7 December 1994 amending for the 13th time Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (OJ L 331, 21.12.1994, p. 7).
(17) OJ L 292, 9.11.2001, p. 21.
(18)* For small-scale manufacturers the date of 1 January 2013 applies.


Application of the Århus Convention ***I
Resolution
Consolidated text
European Parliament legislative resolution on the proposal for a European Parliament and Council regulation on the application of the provisions of the Århus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to EC institutions and bodies (COM(2003) 622 – C5-0505/2003 – 2003/0242(COD))
P5_TA(2004)0238 A5-0190/2004

(Codecision procedure: first reading)

The European Parliament ,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2003) 622 )(1) ,

–   having regard to Articles 251(2) and 175(1) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C5-0505/2003 ),

–   having regard to Rule 67 of its Rules of Procedure,

–   having regard to the report of the Committee on the Environment, Public Health and Consumer Policy and the opinions of the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs and the Committee on Legal Affairs and the Internal Market (A5-0190/2004 ),

1.   Approves the Commission proposal as amended;

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

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

Position of the European Parliament adopted at first reading on 31 March 2004 with a view to the adoption of European Parliament and Council Regulation (EC) No ..../2004 on the application of the provisions of the Århus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies

P5_TC1-COD(2003)0242


THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 175(1) thereof,

Having regard to the proposal from the Commission(2) ,

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

Having regard to the opinion of the Committee of the Regions(4) ,

Acting in accordance with the procedure laid down in Article 251 of the Treaty(5) ,

Whereas:

(1)   Community legislation in the field of the environment aims to contribute to preserving, protecting and improving the quality of the environment, promoting sustainable development and protecting human health.

(2)   The Sixth Community Environment Action Programme(6) stresses the importance of providing adequate environmental information and effective opportunities for public participation in environmental decision-making, thereby increasing accountability and transparency of decision-making and contributing to public awareness and support for the decisions taken. It furthermore encourages, as did its predecessors(7) , more effective implementation and application of the Community legislation on environmental protection, including the enforcement of Community rules and taking action against breaches of Community environmental legislation.

(3)   On 25 June 1998 the European Community signed the UN/ECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (hereinafter "the Århus Convention"). Provisions of Community law should be consistent with that Convention with a view to its conclusion by the European Community.

(4)   To contribute to the implementation of the Convention, the Community has adopted three directives (8) Provision should be made to apply the requirements of the Convention to Community institutions and bodies.

(5)   It is appropriate to deal with the three pillars of the Århus Convention, that are access to information, public participation in decision-making and access to justice in environmental matters, in one piece of legislation and to lay down common provisions regarding objectives and definitions. This contributes to rationalising legislation and increased transparency of the implementation measures taken with regard to the Community level.

(6)   As a general principle, the rights guaranteed by the three pillars of the Århus Convention shall be accessible to the public without discrimination as to citizenship, nationality or domicile.

(7)   Article 2(2) of the Århus Convention defines public authorities in a broad way, the basic concept being that wherever public authority is exercised, there should be rights for individuals and their organisations. It is hence necessary that the Community institutions and bodies covered by the Regulation be defined in the same broad and functional way, so as to include, in particular for the purpose of access to information, any natural or legal person having public responsibilities or functions, or providing public services, under the control of the Community institutions and bodies . In line with the Århus Convention, Community bodies and institutions are to be excluded when and to the extent they act in a judicial or legislative capacity.

(8)   The definition of environmental information encompasses information in any form on the state of the environment. This definition, which has been aligned to the definition adopted for Directive 2003/4/EC has the same content as the one laid down in the Århus Convention. The definition of "documents" in Article 3(a) of Regulation (EC) No 1049/2001(9) on public access to documents encompasses environmental information as defined in this Regulation.

(9)   It is appropriate for this Regulation to provide for a definition of "plans, programmes and policies" within the meaning of the Århus provisions, and in parallel to the approach followed in relation to the Member States" obligations under existing Community law. "Plans, programmes and policies relating to the environment" should be defined in relation to their contribution to the achievement, or likely significant effect on the achievement, of the objectives of Community environmental policy. For the period of ten years starting from 22 July 2002, Decision No 1600/2002/EC establishes the objectives of Community environmental policy, and actions planned to attain these objectives. After its expiry, this will be the case for a subsequent environmental action programme.

(10)   In view of the fact that environmental law is constantly evolving and in order to include relevant provisions on this issue, the definition of environmental law should refer to objectives of Community policy on the environment, notably to the protection or improvement of the environment, the promotion of sustainable development, including human health and the protection of natural resources.

(11)   Administrative acts should be subject to possible review where they have legally binding and external effect. In the same way, omissions should be covered where there is an obligation to act under environmental law. As acts taken by a Community institution or body acting in a judicial or legislative capacity are to be excluded, the same should apply for other inquiry procedures where the Community institution or body acts as an administrative review body under provisions of the Treaty.

(12)   The Århus Convention calls for public access to environmental information either following a request or by active dissemination by the authorities covered by the Convention. Regulation (EC) No 1049/2001 applies to the European Parliament, the Council and the Commission, as well as to the Agencies and similar bodies set up by a Community legal act. It provides rules for these institutions that comply to a great extent with the rules laid down in the Århus Convention. It is necessary to extend the application of Regulation (EC) No 1049/2001 to all other Community institutions and bodies.

(13)   Where the Århus Convention contains provisions that are not, in whole or in part, to be found also in Regulation (EC) No 1049/2001, it is necessary to address those, in particular with regard to the collection and dissemination of environmental information.

(14)   For the right of public access to environmental information to be effective, environmental information of good quality is essential. It is therefore appropriate to introduce rules that oblige Community institutions and bodies to ensure such quality.

(15)   Regarding exceptions to access to environmental information, the relevant provisions of Directive 2003/4/EC should apply also to Community institutions and bodies.

(16)   Under Decision No 2119/98/EC of the European Parliament and the Council of 24 September 1998 setting up a network for the epidemiological surveillance and control of communicable diseases in the Community(10) , a network at Community level has already been set up to promote cooperation and coordination between the Member States, with the assistance of the Commission, with a view to improving the prevention and control in the Community of a number of communicable diseases. Decision No 1786/2002/EC of the European Parliament and of the Council of 23 September 2002 establishes a programme of Community action in the field of public health(11) that complements national policies. Improving information and knowledge for the development of public health and enhancing the capability of responding rapidly and in a coordinated fashion to threats to health, which are elements of this programme, are objectives that are equally fully in line with the requirements of the Århus Convention. This Regulation shall therefore apply without prejudice to Decision No 2119/98/EC and Decision No 1786/2002/EC.

(17)   Article 7, first part of the Århus Convention requires Parties to make provisions for the public to participate during the preparation of plans and programmes relating to the environment.

(18)   According to the Århus Convention, such provisions are to include reasonable timeframes for informing the public of the environmental decision-making in question. The public should be informed of matters under consideration through the use of tools such as specific websites. To be effective, public participation is to take place at an early stage, when all options are open. In decision-making on plans, programmes and policies relating to the environment, due account is to be taken of the results of public participation. Community institutions and bodies, when establishing provisions on public participation, are to identify the public which may participate in the light of the objectives of the Århus Convention, including relevant non-governmental organisations.

(19)   Article 9(3) of the Århus Convention provides for access to judicial or other review procedures for challenging acts and omissions by private persons and public authorities which contravene provisions of law relating to the environment. Hence, provisions on access to justice should be made in order to comply with the Convention in a way which is consistent with the Treaty. It is appropriate in this context that this Regulation only addresses acts and omissions by public authorities, leaving the issue of private persons to be dealt with by the Member States, in the framework of Directive 2004./.../EC of the European Parliament and of the Council of ... [ on access to justice in environmental matters].

(20)   To ensure adequate and effective remedies, in conformity with relevant Community legislation on access to review proceedings before the Court of Justice of the European Communities, it is appropriate that the Community institution or body which issued the act or omission to be challenged is given the opportunity to either reconsider its former decision, or to act, in the case of an omission.

(21)    The Århus Convention grants non-governmental organisations promoting environmental protection the right to participate in the drawing-up of certain plans and programmes relating to the environment and access to justice in environmental matters whereas other members of the public have to be affected by or have an interest in the decisions or omissions. In order to protect this right from any form of abuse, the Community law should set basic criteria for recognising such qualified organisations.

(22)    Community institutions and bodies, with particular reference to the Commission, should nonetheless make greater efforts to streamline the current procedures for obtaining information and access to justice, such as those relating to complaints and to petitions to the European Parliament.

(23)    Entities active in the field of environmental protection and/or promoting sustainable development which meet certain conditions, to ensure that their primary objective is the protection of the environment and/or the promotion of sustainable development , should have access to environmental proceedings in order to challenge the procedural and substantive legality of administrative acts and omissions which contravene EC environmental law. The subject matter of the review procedures brought by these entities must fall into the field of their statutory activities.

(24)    Where they have a sufficient interest or maintain the impairment of a right, members of the public, where they are directly and individually concerned, should be able to bring environmental proceedings concerning the procedural and substantive legality of administrative acts or omissions which infringe environmental law.

(25)    Where previous requests for internal review were unsuccessfully submitted, the qualified entities should be entitled to institute environmental proceedings before the Court of Justice to challenge these administrative acts or omissions.

(26)    This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Regulation seeks to ensure the protection of the environment and application of Article 37 of the Charter of Fundamental Rights of the European Union.

HAVE ADOPTED THIS REGULATION:

Title I

General provisions

Article 1

Objective

1.  This Regulation lays down rules aiming to apply the principles of the UN/ECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental matters, hereafter named the Århus Convention, to Community institutions and bodies, in particular by:

   a) guaranteeing the right of public access to environmental information held, received or produced by or for Community institutions and bodies and by setting out the basic terms and conditions of, and practical arrangements for, its exercise;
   b) ensuring that environmental information progressively becomes available in electronic databases that are easily accessible to the public through public telecommunications networks;
   c) providing for public participation in respect of the preparation by Community institutions and bodies of plans, programmes and policies relating to environment;
   d) granting access to justice in environmental matters at Community level under the conditions laid down by this Regulation.

2.   This Regulation shall apply without prejudice to other Community provisions concerning access to information, public participation in decision-making and access to justice in environmental matters.

Article 2

Definitions

1.  For the purpose of this Regulation

   a) "applicant" means any natural or legal person requesting environmental information;
   b) "member of the public" means one or more natural or legal persons, and, in accordance with national law, associations, organisations or groups made up of such persons;
   (c) "Community institutions and bodies" means any public institution, body, office or agency established by, or on the basis of the Treaty and performing public functions except when and to the extent to which it acts in a judicial or legislative capacity;
   d) "qualified entity" means any association or organisation which has as its objective the protection of the environment and/or the promotion of sustainable development or which, at a given moment, becomes involved in specific action to protect its local environment and which has been recognised in accordance with Articles 19 and 20;
  e) "environmental information" means any information in written, visual, aural, electronic or any other material form on:
   i) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction between these elements;
   ii) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in point (i);
   iii) measures (including administrative measures), policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in points (i) and (ii) as well as measures or activities designed to protect those elements;
   iv) reports on the implementation of environmental legislation;
   v) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in point (iii); and
   vi) the state of human health and safety, including the contamination of the food chain, conditions of human life, cultural sites and built structures in as much as they are or may be affected by the state of the elements of the environment referred to in point (i) or, through those elements, by any of the matters referred to in points (ii) and (iii);
   vii) the state of progress of proceedings for infringement of Community law;
   f) "plans, programmes and policies relating to the environment" means plans, programmes and policies,
   i) which are subject to preparation and/or funding and/or adoption by a Community institution or body,
   ii) which are required by legislative, regulatory or administrative provisions,
   iii) and which contribute to, or are likely to have significant effects on, the achievement of the objectives of Community environmental policy, as laid down in Decision No 1600/2002/EC, or in any subsequent general environmental action programme.

General environmental action programmes shall also be considered as "plans, programmes and policies relating to the environment".

This definition shall not include financial or budget plans and programmes, or internal work-programmes of a Community institution or body.

  g) "environmental law" means any Community legislation which has as its primary or subsidiary objective the protection or the improvement of the environment including human health and the protection or the rational use of natural resources in areas such as:
   i) water protection
   ii) noise protection
   iii) soil protection
   iv) atmospheric pollution
   v) town and country planning and land use
   vi) nature conservation and biological diversity
   vii) waste management
   viii) chemicals, including biocides and pesticides
   ix) biotechnology
   x) other emissions, discharges and releases into the environment
   xi) environmental impact assessment
   xii) access to environmental information and participation in decision-making;
   h) "administrative act" means any administrative measure taken under environmental law by a Community institution or body having legally binding and external effect.
   i) "administrative omission" means any failure of a Community institution or body to take administrative action under environmental law, where it is legally required to do so.

2.  Administrative acts and administrative omissions shall not include measures taken by a Community institution or body in its capacity as an administrative review body such as under:

   Articles 81, 82, 86 and 87 of the Treaty (competition rules);
   Articles 226 and 228 of the Treaty (infringement proceedings);
   Article 195 of the Treaty (Ombudsman proceedings);
   Article 280 of the Treaty (European Anti-fraud Office proceedings).

Title II

Access to environmental information

Article 3

Application of Regulation (EC) No 1049/2001

Regulation (EC) No 1049/2001 shall apply to any request by an applicant for access to environmental information held by or for Community institutions and bodies without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities.

For the purposes of this Regulation, the word "institution" in Regulation (EC) No 1049/2001 shall be read as "Community institution or body".

Article 4

Collection and dissemination of environmental information

1.   Community institutions and bodies shall organise the environmental information which is relevant to their functions and which is held by or for them, with a view to its active and systematic dissemination to the public, in particular by means of computer telecommunication and/or electronic technology in accordance with Articles 11(1) and (2), and 12 of Regulation (EC) No 1049/2001. The environmental information shall be immediately recorded and entered in databases in accordance with the principles of this Regulation, and shall be made accessible in electronic form and on databases provided with search aids and other forms of software designed to assist the public in locating the information they require.

The information made available by means of computer telecommunication and/or electronic technology need not include information collected before the entry into force of this Regulation unless it is already available in electronic form. Where information has been collected prior to the entry into force of this Regulation and electronic copies are not available, it shall be clearly stated where this information can be found and how it can be obtained.

Community institutions and bodies shall maintain environmental information held by or for them in forms or formats that are readily reproducible and accessible by computer telecommunications or by other electronic means.

2.    Community institutions and bodies shall endeavour to assist the public by providing the best possible guidance in seeking access to information, in facilitating participation in decision-making and in seeking access to justice in environmental matters.

3.   The environmental information to be made available and disseminated shall be updated as appropriate. In addition to the documents listed in Article 12(2) and (3) and in Article 13(1) and (2) of Regulation (EC) No 1049/2001, the databases or registers shall include the following:

   a) progress reports on the implementation of:
   i) international treaties, conventions or agreements, and of Community, national, regional or local legislation, on the environment or relating to it,
   ii) plans, programmes and policies relating to the environment;
   b) reports on the state of the environment as indicated in paragraph 5 ;
   c) data or summaries of data derived from the monitoring of activities affecting, or likely to affect, the environment;
   d) authorisations with a significant impact on the environment and environmental agreements or a reference to the place where such information can be requested or accessed;
   e) environmental impact studies and risk assessments concerning environmental elements or a reference to the place where such information can be requested or accessed.

4.    In appropriate cases, Community institutions and bodies may satisfy the requirements of paragraphs 1 to 3 by creating links to Internet sites where the information can be found.

5.    The Commission shall ensure that, at regular intervals not exceeding 4 years, a report on the state of the environment, including information on the quality of, and pressures on, the environment is published and disseminated.

Article 5

Quality of the environmental information

1.   Community institutions and bodies shall, so far as is within their power, ensure that any information that is compiled by them or on their behalf and that is published is up to date, accurate and comparable.

2.   Community institutions and bodies shall, upon request, either inform the applicant of the place where information on the measurement procedures, including methods of analysis, sampling and pre-treatment of samples, used in compiling the information can be found, if it is available, or refer to a standardised procedure that has been used.

Article 6

Refusal of requests for access to environmental information

Where a Community institution or body receives a request for access to environmental information and where this information is not held by or for that Community institution or body, it shall, as promptly as possible, or, at the latest, within 15 working days, inform the applicant of the Community institution or body or the public authority within the meaning of Directive 2003/4/EC to which it believes it is possible to apply for the information requested or transfer the request to the relevant Community institution or body or the public authority and inform the applicant accordingly.

Where the application is formulated in too general a manner, the Community institution or body shall, as soon as possible and at the latest within the time frame laid down in Article 7 of Regulation (EC) No 1049/2001, ask the applicant to clarify the application and shall assist the applicant in doing so, for example, by providing information on the use of the public registers referred to in Article 11 of Regulation (EC) No 1049/2001. Only after having given the applicant this opportunity, may the Community institution or body, where it deems it appropriate, refuse the request under this paragraph.

Community institutions and bodies shall refuse access to and shall decide not to actively disseminate environmental information, where disclosure of the information would adversely affect the protection of the environment to which such information relates, such as the location of rare species.

Community institutions and bodies may not refuse a request nor may they decide actively to disseminate the information, where the information relates to emissions into the environment, by virtue of the exceptions relating to the protection of commercial or industrial information, the protection of personal data, or the protection of the environment to which the information relates.

Community institutions and bodies may deny access to environmental information or may decide not to disseminate environmental information only by virtue of one of the exceptions provided for in Article 4 of Directive 2003/4/EC or the third paragraph of this Article.

The exceptions laid down in this Regulation shall be interpreted restrictively. In each specific case, the public interest served by disclosure shall be weighed against the interest served by the refusal.

Article 7

Charges

Community institutions and bodies not covered by Regulation (EC) No 1049/2001 may, where Article 10 of that Regulation is not applicable, make a reasonable charge for supplying information. They shall publicise and make available to applicants a schedule of charges which may be levied, indicating the circumstances in which they may be levied or waived and when the supply of information is conditional on the advance payment of such a charge.

Article 8

Cooperation

In the event of an imminent threat to human health or the environment, whether caused by human activities or due to natural causes, Community institutions and bodies shall, upon request of public authorities within the meaning of Directive 2003/4/EC, collaborate with and assist those public authorities in order to enable the latter to disseminate immediately and without delay to the public that might be affected all environmental information which could enable the public to take measures to prevent or mitigate harm arising from the threat to the extent that this information is held by or on behalf of Community institutions and bodies and/or those public authorities.

The first paragraph shall apply without prejudice to any specific obligation laid down by Community legislation in particular by Decision No 2119/98/EC and by Decision No 1786/2002/EC.

Title III

Public participation in the preparation by Community institutions and bodies of plans, programmes and policies relating to the environment

Article 9

General provisions

Members of the public affected or likely to be affected by, or having an interest in, a plan, programme or policy relating to the environment shall be entitled to participate in the preparation, modification or review of that plan, programme or policy.

Community institutions and bodies shall provide early and effective opportunities for members of the public to participate in the preparation, modification or review of such plans, programmes or policies. In particular, where the Commission prepares a proposal for a plan, programme or policy relating to the environment which is to be submitted to other Community institutions and bodies for decision, it shall, for that preparatory stage, provide for public participation.

Community institutions and bodies shall identify the members of the public referred to in the first paragraph, including relevant non-governmental organisations such as those promoting environmental protection and/or sustainable development.

Article 10

Consultations

When preparing, modifying or reviewing a plan, programme or policy relating to the environment, Community institutions and bodies shall inform members of the public thereof, whether by public notice or other appropriate means such as electronic media.

That information shall include, where available, the draft proposal and the environmental information or assessment relevant to the plan, programme or policy under preparation.

The Community institution or body preparing, modifying or reviewing the plan, programme or policy relating to the environment shall inform members of the public about the practical arrangements for participation and, in particular, of the administrative entity of the Community institution or body from which the relevant information may be obtained and to which comments or questions may be submitted and on the time schedule for transmission of comments.

Community institutions and bodies shall provide for practical arrangements to enable members of the public to express comments and opinions at an early stage before decisions on the plan, programme or policy are made. Depending on the nature of the plan, programme or policy, members of the public shall be given the possibility to comment at different stages of the preparation of the plan, programme or policy.

Such practical arrangements shall include reasonable time-frames for the different phases, allowing sufficient time for members of the public to be informed and to prepare and participate effectively in the environmental decision-making process. As a rule, in written consultations on a plan, programme or policy relating to the environment, a time-limit of eight weeks shall be set for receiving comments. Where meetings or hearings are organised, prior notice of at least four weeks shall be given. Those time-limits may be shortened in urgent cases or where members of the public have already had the possibility to comment on the plan, programme or policy in question.

Article 11

Results of public participation

In taking a decision on the plan, programme or policy relating to the environment, Community institutions and bodies shall take due account of the results of the public-participation process.

Community institutions and bodies shall inform members of the public about the plan, programme or policy, including its text, and of the reasons and considerations upon which the decision is based, including information about the public-participation process.

Title IV

Access to justice in environmental matters

Article 12

Request for internal review of administrative acts by qualified entities

1.   Any qualified entity who has legal standing according to Article 14 and who considers that an administrative act or an administrative omission is in breach of environmental law is entitled to make a request for internal review to the Community institution or body that has adopted the act or, in case of an alleged omission, should have acted.

Such a request must be made in writing and within a time limit not exceeding twelve weeks after the administrative act was published in the Official Journal of the European Union or otherwise made public , or, in the case of an alleged omission, twelve weeks after the date when the administrative act was required by law. It shall specify the alleged breach of environmental law as well as the content of the review decision sought.

2.   The Community institution or body referred to in paragraph 1 shall consider any such request, unless the request is clearly unsubstantiated. It shall issue as soon as possible, but no later than twelve weeks after receipt of the request, a decision in writing on the measure to be taken to ensure compliance with the environmental law, or on its refusal with regard to the request. The decision, which shall contain a statement of the reasons therefor, shall be addressed to the qualified entity that made the request .

3.   Where the Community institution or body is unable, despite due diligence, to take a decision on a request for internal review within the period mentioned in paragraph 2, it shall inform the qualified entity which made the request as soon as possible and, at the latest within the period mentioned in that paragraph, of the reasons for its not being able to take that decision and when it intends to decide on the request.

4.   The Community institution or body shall take a decision on a request for internal review, considering the nature, extent and gravity of the breach of the environmental law within a reasonable time frame, but not exceeding eighteen weeks from receipt of the request. It shall immediately inform the qualified entity of its decision on the request.

Article 13

Request for internal review of administrative acts by members of the public

1.    Members of the public who have legal standing pusuant to Article 15 and who consider that an administrative act or an administrative omission, where they are directly and individually concerned, is in breach of environmental law are entitled to make a request for internal review to the Community institution or body that adopted the act or, in case of an alleged omission, should have acted.

Such a request must be made in writing and within a time limit not exceeding twelve weeks after the administrative act was published in the Official Journal of the European Union or otherwise made public, or, in the case of an alleged omission, twelve weeks after the date when the administrative act was required by law. It shall specify the alleged breach of environmental law as well as the content of the review decision sought.

2.    The Community institution or body referred to in paragraph 1 shall consider any such request, unless the request is clearly unsubstantiated. It shall issue as soon as possible, but no later than eight weeks after receipt of the request, a decision in writing on the measure to be taken to ensure compliance with the environmental law, or on its refusal with regard to the request. The decision, which shall contain a statement of the reasons therefor, shall be addressed to the members of the public that made the request.

3.    Where the Community institution or body is unable, despite due diligence, to take a decision on a request for internal review within the period referred to in paragraph 2, it shall inform the members of the public that made the request as soon as possible and, at the latest within the period referred to in that paragraph, of the reasons for its not being able to take that decision and the date by which it intends to decide on the request.

4.    The Community institution or body shall take a decision on a request for internal review, considering the nature, extent and gravity of the breach of the environmental law within a reasonable time frame, but not exceeding 45 working days from receipt of the request. It shall immediately inform the members of the public of its decision on the request.

Article 14

Legal standing of qualified entities

A qualified entity shall be entitled to make a request for internal review pursuant to Article 12 , without having a sufficient interest or maintaining the impairment of a right, provided that:

   a) it is recognised in accordance with Articles 19 and 20, and
   b) the subject matter in respect of which a request for internal review is made is covered by its statutory activities.

Article 15

Legal standing of members of the public

Members of the public shall be entitled to make a request for internal review pursuant to Article 13 where:

   a) they have a sufficient interest, or
   b) they maintain the impairment of a right.

Article 16

Complaints to the Ombudsman

Where the Community institution or body does not take a decision within the required deadline on a request for internal review made pursuant to Article 13, the members of the public may lodge a complaint with the Ombudsman, in accordance with the relevant procedures of the Treaty.

Article 17

Proceedings brought before the Court of Justice by qualified entities

1.   Where the qualified entity which made a request for internal review pursuant to Article 12 considers that a decision by the Community institution or body in response to that request is insufficient to ensure compliance with environmental law, the qualified entity may institute proceedings before the Court of Justice in accordance with Article 230(4) of the Treaty, to review the substantive and procedural legality of that decision.

2.   Where a decision on a request for internal review made pursuant to Article 12 has not been taken by the Community institution or body within the period mentioned in that Article, the qualified entity may institute proceedings before the Court of Justice in accordance with Article 232(3) of the Treaty.

Article 18

Proceedings brought before the Court of Justice by members of the public

1.    Where the members of the public that made a request for internal review pursuant to Article 13 consider that a decision by the Community institution or body in response to that request is insufficient to ensure compliance with environmental law, they may, where they are directly and individually concerned, institute proceedings before the Court of Justice in accordance with Article 230(4) of the Treaty, to review the substantive and procedural legality of that decision.

2.    Where a decision on a request for internal review made pursuant to Article 13 is not taken by the Community institution or body within the period referred to in that Article, the members of the public, where they are directly and individually concerned, may institute proceedings before the Court of Justice in accordance with Article 232(3) of the Treaty.

Article 19

Criteria for recognition of qualified entities

In order to be recognised, a qualified entity shall comply with the following criteria:

   a) it must be an independent and non-profit-making legal person, which has as its objective the protection of the environment and/or the promotion of sustainable development or which, at a given moment, becomes involved in specific action to protect its local environment ;
   b) it must have been legally constituted for more than two years and, during that period, have been actively pursuing environmental protection and/or promotion of sustainable development in accordance with its statutes;
   c) it must have been advocating activities that do not breach good form or infringe Article 6 of the EU Treaty.

Article 20

Procedure for recognition of qualified entities

1.   The Commission shall adopt the necessary provisions to ensure an expeditious recognition of a qualified entity where it meets the criteria set out under Article 19. These provisions shall provide either for recognition on a case-by-case basis ("ad hoc") or advance recognition for a specified future period.

2.   The Commission shall examine, at regular intervals, whether the conditions for recognition continue to be fulfilled.

Where a qualified entity no longer satisfies the criteria in Article 19, the recognition shall be cancelled. Notice shall be given to the qualified entity concerned at least one month before the decision is taken. The decision shall state the reasons for the cancellation and the qualified entity shall have the right to appeal.

Title V

Final provisions

Article 21

Application measures

Community institutions and bodies shall adapt their rules of procedure to the provisions of this Regulation. These adaptations shall take effect from the date of entry into force of this Regulation .

Article 22

Entry into force

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

It shall apply from six months after the date referred to in the first paragraph .

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

Done at ,

For the European Parliament For the Council

The President The President

(1) Not yet published in OJ.
(2) OJ C
(3) OJ C
(4) OJ C
(5) Position of the European Parliament of 31 March 2004.
(6) Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme (OJ L 242, 10.9.2002, p. 1).
(7) Fourth Community Action Programme for the Environment (OJ C 328, 7.12.1987, p. 1). Fifth Community Action Programme for the Environment (OJ C 138, 17.9.1993, p. 1).
(8) Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ L 41, 14.2.2003, p. 26), Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending, with regard to public participation and access to justice, Council Directives 85/337/EEC and 96/61/EC (OJ L 156, 25.6.2003, p. 17) and Directive 2004/..../EC of the European Parliament and of the Council of ...... [on access to justice in environmental matters) (OJ L ......) .
(9) 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 (OJ L 145, 31.5.2001, p. 43).
(10) OJ L 268, 3.10.1998, p. 1. Decision as last amended by Regulation (EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).
(11) OJ L 271, 9.10.2002, p. 1. Decision as amended by Decision No 786/2004/EC (OJ L 138, 30.4.2004, p. 7).


Access to justice in environmental matters ***I
Resolution
Consolidated text
European Parliament legislative resolution on the proposal for a European Parliament and Council directive on access to justice in environmental matters (COM(2003) 624 – C5-0513/2003 – 2003/0246(COD))
P5_TA(2004)0239 A5-0189/2004

(Codecision procedure: first reading)

The European Parliament ,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2003) 624 )(1) ,

–   having regard to Articles 251(2) and 175(1) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C5-0513/2003 ),

–   having regard to Rule 67 of its Rules of Procedure,

–   having regard to the report of the Committee on the Environment, Public Health and Consumer Policy and the opinions of the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs and the Committee on Legal Affairs and the Internal Market (A5-0189/2004 ),

1.   Approves the Commission proposal as amended;

2.   Urges the Commission and Council to ensure that Member States ratify the Århus Convention as soon as possible;

3.   Calls on the Commission and the Council to institute and make public a 'Convention scoreboard' concerning international environmental conventions and to regularly discuss this results table at Council meetings;

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

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

Position of the European Parliament adopted at first reading on 31 March 2004 with a view to the adoption of European Parliament and Council Directive 2004/…./EC on access to justice in environmental matters

P5_TC1-COD(2003)0246


THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 175(1) thereof,

Having regard to the proposal from the Commission(2) ,

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

Having regard to the opinion of the Committee of the Regions(4) ,

Acting in accordance with the procedure laid down in Article 251 of the Treaty(5) ,

Whereas:

(1)   Increased public access to justice in environmental matters contributes to achieving the objectives of Community policy on the protection of the environment by overcoming current shortcomings in the enforcement of environmental law and, eventually, to a better environment.

(2)   On 25 June 1998 the Community signed the UN/ECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental matters ("the Århus Convention"). Provisions of Community law must be consistent with that Convention with a view to its conclusion by the Community.

(3)    The Århus Convention guarantees the right of access to justice in order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being.

(4 )   The Århus Convention consists of three pillars, namely access to information, public participation in decision-making and access to justice in environmental matters. Two directives have already been adopted to develop the first and second pillars of the Convention; Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC(6) and Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending, with regard to public participation and access to justice, Council Directives 85/337/EEC and 96/61/EC(7) . It is now necessary to develop the third pillar of the Convention.

(5 )   Article 9(3) of the Århus Convention provides for access to judicial or other review procedures for challenging acts and omissions by private persons and public authorities which contravene environmental law. In accordance with the principle of subsidiarity, acts and omissions by private persons should be challenged in accordance with the criteria laid down in Member States' legislation.

(6 )   To take fully account of Article 9(3) of the Århus Convention and in order to improve environmental protection, provision should be made for administrative or judicial proceedings for challenging administrative acts and omissions by public authorities which contravene environmental law. Proceedings should be fair and should not be excessively long or expensive. Provision should also be made for interim relief measures to ensure the intervention of courts and review bodies.

(7 )   Provision should likewise be made concerning acts and omissions to be challenged before review bodies. Administrative acts should be subject to review where they have legally binding and external effect as long as those acts are not adopted by bodies or institutions acting in a legislative or judicial capacity. In the same way, omissions should be covered where there is an obligation to act under environmental law.

(8 )   In view of the fact that environmental law is in a constant state of development, the definition of environmental law should refer to objectives of Community policy on the environment, notably to the protection or improvement of the environment, including human health and the protection of natural resources. Member States should be able to extend this definition to include environmental law of exclusively national origin.

(9 )   Where they have a sufficient interest or maintain the impairment of a right, members of the public should have access to environmental proceedings in order to challenge in courts or before other review bodies, the procedural and substantive legality of administrative acts or omissions which contravene environmental law.

(10 )   Entities active in the field of environmental protection and/or of sustainable development which meet certain conditions should have access to environmental proceedings in order to challenge the procedural and substantive legality of administrative acts and omissions which contravene environmental law. The object of the review procedures brought by these entities must fall within the field of their statutory activities.

(11 )   Provision should be made for the administrative act or omission to be reviewed by the public authority designated in accordance with national law, to either reconsider the administrative act or, in the case of an omission, to provide for the action required to be taken.

(12 )   Where a previous request for internal review did not meet with approval, the applicant should be able to seek an administrative or judicial review of the act or omission of a public authority.

(13 )   This Directive should be evaluated regularly in the light of experience and after submission of the relevant reports by the Member States. It should be subject to revision on that basis. The Commission should submit an evaluation report to the European Parliament and the Council. A copy of this report should be forwarded to the European Ombudsman for his assessment.

(14 )   The provisions of this Directive should not affect the right of a Member State to maintain or introduce measures providing for wider access to justice than required by this Directive.

(15)    One precondition for the attainment of the objectives of this Directive and for its sufficiently uniform application is that national courts take advantage of the opportunity to request a preliminary ruling from the Court of Justice of the European Communities where a question relating to the interpretation of Community environmental law is raised before them and, where there is no judicial remedy under national law against their decisions, consistently fulfil their duty pursuant to Article 234 of the Treaty to request a preliminary ruling from the Court.

(16 )   Since the objectives of the proposed action cannot be sufficiently achieved by the Member States, given that the right of access to justice is to be granted in such a way as to ensure consistent application of Community law on the environment, and can therefore, by reason of the scale and effects of the action, be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

(17 )   This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for the protection of the environment and to promote the application of Article 37 of the Charter of Fundamental Rights of the European Union,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject matter and scope

This Directive establishes provisions aiming to ensure access to justice in environmental proceedings for members of the public and for qualified entities.

The Directive shall apply without prejudice to other Community provisions concerning access to justice in environmental matters, where such provisions are more detailed or give wider access to justice. In unclear cases, the provisions under this Directive shall apply . This Directive shall also apply without prejudice to national legislation which affords wider access to justice than achieved by this Directive .

This Directive establishes a minimum framework for access to justice in environmental matters. The provisions of this Directive shall not affect the right of any Member State to maintain or introduce measures providing for broader access to justice in environmental matters than required by this Directive.

Article 2

Definitions

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

   a) "public authority" means
   i) the public administration of Member States, including administration at national, regional or local level but excluding public prosecutors and bodies, administrations or institutions acting in a judicial or legislative capacity;
   ii) natural or legal persons performing public administrative functions under national law, including specific duties, activities or services in relation to the environment;
   iii) any other natural or legal persons having public responsibilities or functions, or providing public services, in relation to the environment, under the control of a body o r person falling within points (i) or (ii) above;
   b) "member of the public" means one or more natural or legal persons and, in accordance with national law or practice , associations, organisations or groups made up by these persons;
   c) "qualified entity" means any association, organisation or group, which has the objective to protect the environment and is recognised according to the procedure laid down in Article 9;
   d) "administrative act" means any administrative measure taken by a public authority under environmental law, which has a legally binding and external effect;
   e) "administrative omission" means any failure of a public authority to take administrative action under environmental law, where it is legally required to do so;
   f) "environmental proceedings" means the administrative or judicial review proceedings in matters relating to the environment before a court or other impartial, independent body established by law, which is concluded by a binding decision;
  g) "environmental law" means Community legislation and legislation adopted to implement Community legislation which have as their primary or subsidiary objective the protection or the improvement of the environment, including human health and the protection or the rational use of natural resources, in areas such as:
   i) water protection;
   ii) noise protection;
   iii) soil protection;
   iv) atmospheric pollution;
   v) town and country planning and land use;
   vi) nature conservation and biological diversity;
   vii) waste management;
   viii) chemicals including biocides and pesticides;
   ix) biotechnology;
   x) other emissions, discharges and releases in the environment;
   xi) environmental impact assessment;
   xii) access to environmental information and public participation in decision-making.

2.   Member States may include environmental law of exclusively national origin in the definition set out in paragraph 1(g).

Article 3

Acts and omissions by private persons

Member States shall ensure that members of the public, where they meet the criteria, if any, laid down in national law, have access to environmental proceedings in order to challenge acts and omissions by private persons and public authorities, which contravene provisions of national law relating to the environment.

Article 4

Legal standing of members of the public

1.  Member States shall ensure that members of the public have access to environmental proceedings, including interim relief, in order to challenge the procedural and substantive legality of administrative acts and administrative omissions in breach of environmental law where:

   a) they have a sufficient interest, or
   b) they maintain the impairment of a right, where the administrative procedural law requires this as a precondition.

Applications for interim relief shall not be subject to compliance with the procedure laid down in Article 6.

2.   Member States shall determine, in accordance with the requirements of their law and with the objective of granting broad access to justice, what constitutes a sufficient interest and an impairment of a right for the purposes of paragraph 1.

Article 5

Legal standing of qualified entities

1.   Member States shall ensure that qualified entities recognised in accordance with Article 9 have access to environmental proceedings, including interim relief, without having a sufficient interest or maintaining the impairment of a right, if, in accordance with Article 8, the matter of review in respect of which an action is brought is covered specifically by the statutory activities of the qualified entity and the review falls within the specific geographical area of activities of that entity.

2.   In transboundary cases, Member States shall ensure equal and non-discriminative proceedings.

3.   Applications for interim relief measures shall not be subject to compliance with the procedure laid down in Article 6.

Article 6

Request for internal review

1.   Member States shall ensure that members of the public and qualified entities who have legal standing according to Articles 4 and 5, and who consider that an administrative act or administrative omission is in breach of environmental law, are entitled to make a request for internal review to the public authority that has been designated in accordance with national law.

Member States shall establish within which time limit and in which form such a request is to be submitted. This time limit shall not be shorter than four weeks following the date on which the administrative act is adopted , or, in the case of alleged omission, after the date when the administrative act was required by law.

2.   The public authority referred to in paragraph 1 shall consider any such request, unless the request is clearly unsubstantiated. It shall issue as soon as possible, but no later than twelve weeks after receipt of the request, a decision in writing on the measure to be taken to ensure compliance with the environmental law, or on its refusal with regard to the request. The decision shall be addressed to the member of the public or the qualified entity that made the request; it shall explain the reasons for the decision.

3.   Where the public authority is unable, despite due diligence, to take a decision on a request for internal review within the period mentioned in paragraph 2, it shall inform the applicant as soon as possible, and at the latest within the period mentioned in that paragraph, of the reasons for not being able to take the decision and of the date on which it intends to decide on the request.

4.   The public authority shall take a decision on the request for internal review, considering the nature, extent and gravity of the breach of the environmental law within a reasonable time frame but no later than eighteen weeks from the receipt of the request for internal review. It shall immediately inform the applicant of its decision on the request.

Article 7

Environmental proceedings

Where a decision on a request for internal review has not been taken by the public authority within the time limits referred to in Article 6, paragraphs 2, 3 and 4, or where the applicant considers that the decision is insufficient to ensure compliance with environmental law, the applicant shall be entitled to institute environmental proceedings. However, an internal review must not be regarded as a precondition for environmental proceedings.

Paragraph 1 does not limit the right to institute environmental proceedings or requests for action as laid down in national law.

Article 8

Criteria for recognition of qualified entities

In order to be recognised as a qualified entity, an international, national, regional or local association, organisation or group shall comply with the following criteria:

   a) it must be an independent and non-profit-making legal person, which has as its objective the protection of the environment and/or the promotion of sustainable development, or an entity or legal person which, at a given moment, becomes involved in specific action to protect its local environment;
   b) it must have an organisational structure which enables it to ensure the adequate pursuit of its statutory objectives;
   c) it must have legal personality and must have worked actively for environmental protection and/or sustainable development , in conformity with its statutes, for a period to be fixed by the Member State in which it is constituted, but not exceeding three years;
   d) it must have been advocating activities that do not breach good form and do not infringe the rule of law;
   ( e ) it must have had its annual statement of accounts certified by a registered auditor for a period to be fixed by each Member State, in accordance with the procedure set out in point (c) .

Article 9

Procedure for recognition of qualified entities

1.   Member States shall adopt a procedure to ensure an expeditious recognition of qualified entities where they meet the criteria set out in Article 8, either on a case by case basis ("ad hoc"), or under an advance recognition procedure. The legal standing of a qualified entity may also be examined in conjunction with a decision on a matter which is the subject of an application for review of a decision.

Where a Member State opts for an advance recognition procedure it shall ensure that there is also a possibility for an expeditious "ad hoc" recognition during and within the environmental proceeding concerned .

2.   Member States shall determine the competent authority or authorities responsible for recognition.

3.   Member States shall ensure that where a request for recognition has been rejected, this decision can be reviewed in courts or by another independent and impartial body established by law.

4.   Member States shall lay down the detailed provisions of the recognition procedure.

Article 10

Requirements for environmental proceedings.

Member States shall ensure that proceedings provided for under this Directive are objective, equitable, expeditious and fair and provide for adequate and effective remedies. Member States shall ensure that environmental proceedings are not prohibitively expensive.

In order to provide for access to environmental proceedings that are not prohibitively expensive, Member States shall ensure that members of the public are informed as soon as possible of the expected cost of such proceedings.

Member States shall ensure that information is promptly provided to the public on how and when to institute environmental proceedings.

Decisions under this Directive shall be given or recorded in writing, and whenever possible shall be publicly accessible.

Member States shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.

Under no circumstances, and on the basis of the provisions of Articles 3 to 5, shall requests for access to justice be refused on account of the applicant having insufficient financial resources.

Furthermore, Member States shall set up information offices and/or other information mechanisms to explain in detail how to gain access to the legal instruments in the environmental proceedings referred to in this Directive.

Article 11

Reports

Member States shall report on the experience gained in the application of this Directive at the latest by 1 January 2011 . They shall communicate the report to the Commission within 6 months.

The reports shall consider, inter alia, the efficiency of the environmental proceedings with regard to expenses, remedies and the recognition of qualified entities.

The Commission shall publish a Community report about the implementation of this Directive to the European Parliament and the Council and may propose the necessary amendments, on the basis of the national reports. A copy of the report shall be forwarded to the European Ombudsman for his assessment.

Article 12

Transposition

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 July 2006 at the latest. They shall forthwith inform the Commission thereof.

When Member States adopt the measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

Article 13

Entry into force

This Directive shall enter into force on 1 January 2005.

Article 14

Addresses

This Directive is addressed to the Member States.

Done at ,

For the European Parliament For the Council

The President The President

(1) Not yet published in OJ.
(2) OJ C , , p. .
(3) OJ C , , p. .
(4) OJ C , , p. .
(5) Position of the European Parliament of 31 March 2004.
(6) OJ L 41, 14.2.2003, p. 26.
(7) OJ L 156, 25.6.2003, p. 17.


Management of waste from the extractive industries ***I
Resolution
Consolidated text
European Parliament legislative resolution on the proposal for a European Parliament and Council directive on the management of waste from the extractive industries (COM(2003) 319 – C5-0256/2003 – 2003/0107(COD))
P5_TA(2004)0240 A5-0177/2004

(Codecision procedure: first reading)

The European Parliament ,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2003) 319 )(1) ,

–   having regard to Articles 251(2) and 175 (1) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C5-0256/2003 ),

–   having regard to Rule 67 of its Rules of Procedure,

–   having regard to the report of the Committee on the Environment, Public Health and Consumer Policy and to the opinion of the Committee on Industry, External Trade, Research and Energy (A5-0177/2004 ),

1.   Approves the Commission proposal as amended;

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

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

Position of the European Parliament adopted at first reading on 31 March 2004 with a view to the adoption of European Parliament and Council Directive 2004/…./EC on the management of waste from the extractive industries

P5_TC1-COD(2003)0107


THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 175(1) thereof,

Having regard to the proposal from the Commission(2) ,

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

Having regard to the opinion of the Committee of the Regions(4) ,

Acting in accordance with the procedure laid down in Article 251 of the Treaty(5) ,

Whereas:

(1)   The Communication of the Commission, entitled "Safe operation of mining activities: a follow-up to recent mining accidents"(6) sets out as one of its priority actions an initiative to regulate the management of waste from the extractive industries. This action is designed to complement initiatives relating to the envisaged amendment of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances(7) as well as the production of a best available technique document covering waste rock and tailings from mining activities under the auspices of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control(8) .

(2)   In its Resolution of 19 June 2001 concerning that Communication(9) the European Parliament strongly supported the need for a Directive on waste from the extractive industries.

(3)   Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme(10) set as the objective for wastes that are still generated that the level of their hazardousness should be reduced and that they should present as little risk as possible, that preference should be given to recovery and especially to recycling, that the quantity of waste for disposal should be minimised and should be safely disposed of, and that waste intended for disposal should be treated as closely as possible to the place of its generation to the extent that this does not lead to a decrease in the efficiency of waste treatment operations. Decision No 1600/2002/EC also prescribes as a priority action, with reference to accidents and disasters, the development of measures to help prevent major accident hazards, with special regard to those arising from mining, and the development of measures on mining waste. Decision No 1600/2002/EC also sets as a priority action the promotion of sustainable management of extractive industries with a view to reducing their environmental impact.

(4)   In accordance with the objectives of Community policy on the environment, it is necessary to lay down minimum requirements in order to prevent or reduce as far as possible any negative effects on the environment or on human health which are brought about as a result of the management of waste from the extractive industries, such as tailings (i.e. the solids that remain after the treatment of minerals by a number of techniques), waste rock and overburden (i.e. the material that extractive operations move during the process of accessing an ore or mineral body), and topsoil (i.e the upper layer of the ground) provided that they constitute waste within the meaning of Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 on waste (11) . Accordingly, this Directive should cover the management of waste from land-based extractive industries.

(5)    In accordance with Article 24 of the Johannesburg Declaration on Sustainable Development adopted within the framework of the United Nations at the World Summit on Sustainable Development, it is necessary to protect the natural resource base of economic and social development and reverse the current trend in natural resource degradation by managing the natural resource base in a sustainable and integrated manner.

(6)   In order to avoid duplication and disproportionate administrative requirements, the scope of this Directive should be limited to those particular operations considered to be a priority for the purposes of meeting its objectives.

(7)   Accordingly, the provisions of this Directive should not apply to those waste streams which, albeit generated in the course of mineral extraction or treatment operations, are not directly linked to the extraction or treatment process. Where such waste is deposited into or on to land, the provisions of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste(12) will apply .

(8)   Nor should the provisions of this Directive apply to waste resulting from the offshore extraction and treatment of mineral resources, while unpolluted waste from the prospecting of mineral resources, non-hazardous inert waste and unpolluted soil resulting from the extraction, treatment and storage of mineral resources should only be covered by a limited set of requirements due to their lower environmental risks.

(9)   Moreover, while covering the management of waste from the extractive industries which may be radioactive, this Directive should not cover such aspects as are specific to radioactivity.

(10)   In order to remain true to the principles and priorities identified in Directive 75/442/EEC and, in particular, in Articles 3 and 4 thereof, Member States should ensure that operators engaged in the extractive industry take all necessary measures to prevent or reduce as far as possible any negative effects, actual or potential, on the environment or on human health which are brought about as a result of the management of waste from the extractive industries.

(11)   These measures should be based on the concept of best available techniques as defined in Directive 96/61/EC and, when applying such techniques, it is for the Member States to determine how the technical characteristics of the waste facility, its geographical location and local environmental conditions can, where appropriate, be taken into consideration.

(12)   Member States should ensure that operators in the extractive industry draw up appropriate waste management plans for the treatment, recovery and deposition of mining waste. Such plans should be structured in such a way as to ensure appropriate planning of waste management options with a view to minimising waste generation and its harmfulness, and encouraging waste recovery. Moreover, waste from the extractive industries should be characterised with respect to its composition in order to ensure that, as far as possible, such waste reacts only in predictable ways.

(13)   In order to minimise the risk of accidents and to guarantee a high level of protection for the environment and human health, Member States should ensure that each operator adopts and applies a major-accident prevention policy for waste. In terms of preventive measures, this should entail the delivery of a safety management system, emergency plans to be used in the event of accidents and the dissemination of safety information to persons likely to be affected by a major accident. In the event of an accident, operators should be required to provide the competent authorities with all the relevant information necessary to mitigate actual or potential environmental damage. These particular requirements should not apply to those waste facilities from the extraction industries falling within the scope of Directive 96/82/EC on the control of major-accident hazards involving dangerous substances.

(14)   Because of the special nature of the management of waste from the extractive industries, it is necessary to introduce specific application and permit procedures in respect of all classes of waste facility used to receive such waste. Those procedures should be consistent with the general permit criteria laid down in Article 9 of Directive 75/442/EEC.

(15)   Member States should be required to ensure that, in accordance with the United Nations Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters of 25 June 1998 (Århus Convention), as signed by the European Community, the public are informed about applications for waste management permits and that the public concerned are consulted prior to the grant of waste management permits .

(16)   It is necessary to indicate clearly the requirements with which waste facilities servicing the extraction industries must comply as regards location, management, control, closure and preventive and protective measures to be taken against any threat to the environment in the short or long term, and more especially against the pollution of groundwater by leachate infiltration into the soil.

(17)   It is necessary to define clearly the classes of waste facilities used to service waste from the extractive industries, taking into account the likely effects of any pollution resulting from the operation of such facilities or from accidents in which waste escapes from such facilities .

(18)   Waste placed back into excavation voids needs also to be subject to certain requirements in order to protect surface and groundwater, secure the stability of such waste, and ensure appropriate monitoring upon cessation of disposal activities.

(19)   With a view to ensuring the proper construction and maintenance of waste facilities servicing waste from the extraction industries, Member States should take appropriate measures to ensure that the design, location and management of such facilities is carried out by technically competent persons. It is necessary to ensure that the training and knowledge acquired by operators and staff afford them the necessary skills. In addition, competent authorities should satisfy themselves that operators have suitable arrangements with respect to the construction and maintenance of any new waste facility or to any extension or modification of an existing facility, including after-closure following closure of a facility or of extraction operations.

(20)   It is necessary to define when and how a waste facility servicing the extractive industries should be closed and to set out the obligations and responsibilities to be met by the operator during the after-closure period.

(21)   Member States should require operators of the extractive industries to apply monitoring and management controls in order to prevent water and soil pollution and to identify any adverse effect that their waste facilities may have on the environment or on human health. In addition, for the purposes of minimising water pollution, the deposition of waste into any receiving body of water should be in compliance with Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy(13) . Furthermore, concentrations in tailings ponds of cyanide and cyanide compounds from certain extraction industries should, in view of their harmful and toxic effects, be reduced to the lowest possible levels, using best available techniques. Maximum concentration thresholds should be set accordingly to prevent such effects.

(22)   Operators of waste facilities servicing the extractive industries should be required to lodge a financial deposit or equivalent by way of an adequate guarantee ensuring that all the obligations flowing from their permits will be fulfilled, including those relating to the closure and after-closure of the site. The financial guarantee should be sufficient to cover the cost of rehabilitation of the site by a suitable qualified and independent third party. It is also necessary for such a guarantee to be provided prior to the commencement of deposition operations in the waste facility and to be periodically adjusted. In addition, in accordance with the polluter pays principle and with Directive 2004/35/EC of the European Parliament and the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage(14) , it is important to clarify that operators engaged in the extractive industries have appropriate liability for any environmental damage caused by their operations or the imminent threat of such damage.

(23)   Where the operation of waste facilities in the extractive industries is likely to have significant adverse transboundary effects on the environment in the territory of another Member State, there should be a common procedure in place to facilitate consultation among neighbouring countries. This should be done with a view to ensuring that there is an adequate exchange of information between authorities and that the public are duly informed about any facilities that could have negative consequences for their environment.

(24)   It is necessary for Member States to ensure that competent authorities organise an effective system of inspections or equivalent control measures in respect of waste facilities servicing the extraction industries. Without prejudice to the obligations of operators under their permits , prior to the commencement of deposition operations there must be an inspection to check that the permit conditions have been complied with. In addition, Member States should ensure that operators and their successors maintain up-to-date records relating to such waste facilities and that operators transfer to their successors information concerning the state of the facility and its operations.

(25)   Member States should send regular reports to the Commission on the implementation of this Directive, including information on accidents or near-accidents. On the basis of those reports, the Commission should report to the European Parliament and the Council.

(26)   Member States should lay down rules on penalties for infringement of this Directive and ensure that they are implemented; those penalties should be effective, proportionate and dissuasive.

(27)    It is necessary for Member States to ensure that an inventory of closed sites located on their territory is drawn up, since these sites often pose a very high environmental risk. The Member States and the Community have a responsibility for rehabilitating abandoned sites likely to cause serious negative environmental impacts. It should therefore be possible to use Structural Funds and other relevant Community funding in order to draw up inventories and implement measures to clean up such facilities

(28)    The Commission should ensure an appropriate exchange of scientific and technical information on how to carry out an inventory of closed waste facilities at Member State level and on the development of methodologies to assist Member States in complying with Article 4 of Directive 75/442/EEC when rehabilitating closed waste facilities. Moreover, an exchange of information should be ensured within and between Member States on the best available techniques.

(29)    This Directive could be a useful instrument to be taken into account when verifying that projects receiving Community funding in the context of development aid include the necessary measures to prevent or reduce as far as possible negative effects on the environment. Such an approach is consistent with Article 6 of the Treaty, particularly with regard to integrating environmental protection requirements into the Community's policy in the sphere of development cooperation.

(30)    The objective of this Directive, that is to say, improving the management of waste from the extractive industries, cannot be sufficiently achieved by the Member States acting alone because the mismanagement of such waste may cause pollution of a transboundary nature. Under the polluter pays principle it is necessary, inter alia , to take into account any damage to the environment caused by waste from the extractive industries, and different national applications of that principle may lead to substantial disparities in the financial burden on economic operators. Moreover, the existence of different national policies on the management of waste from the extractive industries hampers the aim of ensuring a minimum level of safe and responsible management of such waste and maximising its recovery throughout the Community. Therefore, since by reason of the scale and effects of the proposed action, it can be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty.

(31)    The measures necessary for the implementation of this Directive should be adopted in accordance with Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(15) .

(32)    The operation of waste facilities existing at the moment of transposition of this Directive should be regulated in order to take the necessary measures, within a specified period of time, for their adaptation to the requirements of this Directive,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject matter

With a view to the continuous and consistent application of the principles and priorities laid down in Directive 75/442/EEC and, in particular, in Articles 3 and 4 thereof, this Directive provides for measures, procedures and guidance to prevent or reduce as far as possible any adverse effects on the environment, and any resultant risks to human health, brought about as a result of the management of waste from the extractive industries.

With a view to the consistent application of Article 6 of the Treaty, environmental protection requirements must be integrated into the implementation of Community policies and activities with a view to promoting sustainable development.

Article 2

Scope

1.   Subject to the provisions of paragraph 2, this Directive covers the management of waste from the extractive industries, hereinafter "extractive waste", that is to say, waste resulting from the prospecting, extraction, treatment and storage of mineral resources and the working of quarries, such as tailings (i.e. the solids that remain after the treatment of minerals by a number of techniques), waste rock and overburden (i.e. the material that extractive operations move during the process of accessing an ore or mineral body), and topsoil (i.e. the upper layer of the ground) provided that they constitute waste within the meaning of Article 1(a) of Council Directive 75/442/EEC. Accordingly, this Directive shall cover the management of waste from land-based extractive industries.

Directive 75/442/EEC, or equivalent national legislation, shall continue to apply to any aspects of the management of waste from the extractive industries which are not covered by this Directive.

2.  The following shall be excluded from the scope of this Directive:

   a) waste which is generated by the prospecting, extraction and treatment of mineral resources, but which does not directly result from those operations, such as food waste, waste oil, end-of-life vehicles, spent batteries and accumulators;
   b) waste resulting from the offshore extraction and treatment of mineral resources;
   c) waste generated at an extraction or treatment site and transported to a location outside the extractive industry for the purposes of its deposit into or on to land.

3.  The following substances shall be subject only to the provisions of Article 5(1) and (2), Article 6, Article 7, Article 11(2) points (a) to (e), Article 12, Article 13(1) to (3) and Article 18 of this Directive and provided that they constitute waste within the meaning of Article 1(a) of Directive 75/442/EEC:

   a) non-hazardous inert waste and unpolluted soil resulting from the extraction, treatment and storage of mineral resources;
   b) unpolluted waste from the prospecting of mineral resources.

4.   Without prejudice to other Community legislation, waste which falls within the scope of this Directive shall not be subject to Directive 1999/31/EC.

Article 3

Definitions

For the purposes of this Directive:

   1) "waste" is as defined in Article 1(a) of Directive 75/442/EEC;
   2) "hazardous waste" is as defined in Article 1(4) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste;(16)
   3) "inert waste" means waste that does not undergo any significant physical, chemical or biological transformations. Inert waste will not dissolve, burn or otherwise physically or chemically react, biodegrade or adversely affect other matter with which it comes into contact in a way likely to give rise to environmental pollution or harm human health. The total leachability and pollutant content of the waste and the ecotoxicity of the leachate must be insignificant, and in particular not endanger the quality of surface water and/or groundwater;
   4) "mineral resource" or "mineral" means a naturally occurring deposit in the earth's crust of an organic or inorganic compound, such as oil, bituminous shale, coal, lignite, metal and metal ores, stone, slate, clay, gravel or sand, including natural gas, but excluding water;
   5) "extractive industries" means all establishments and undertakings engaged in surface or underground extraction of mineral resources, including extraction by drilling boreholes or treatment of the extracted material;
   6) "treatment" means the mechanical, physical thermal or chemical process or combination of processes carried out on mineral resources with a view to extracting and processing the mineral, including size reduction, classification, separation and leaching, and the re-processing of previously discarded waste;
   7) "tailings" means the waste solids that remain after the treatment of minerals by separation processes (e.g. crushing, grinding, size-sorting, flotation and other physico-chemical techniques) to remove the valuable minerals from the less valuable rock;
   8) "heap" means an engineered facility for the disposal of solid waste on the surface;
   9) "dam" means an engineered structure designed to retain or confine water and/or waste within a pond;
   10) "pond" means a natural or engineered facility for depositing, dumping or disposing of fine-grained waste, normally tailings, along with varying amounts of free water, resulting from the treatment of mineral resources and from the clearing and recycling of process water;
   11) "weak acid dissociable cyanide" means cyanide and cyanide compounds that are dissociated with a weak acid at a defined pH;
   12) "leachate" means any liquid percolating through the deposited waste and emitted from or contained within a waste facility, including polluted drainage, which may adversely affect the environment if not appropriately treated;
   13) "waste facility" means any area designated for the accumulation or deposit of waste, whether in a solid or liquid state or in solution or suspension, and being deemed to include any dam or other structure serving to contain, retain, confine or otherwise support such a facility, including heaps and ponds, but excluding excavation voids into which waste is replaced after extraction of minerals ;
   14) "major accident" means an occurrence on site that seriously endangers human health or the environment, whether immediately or over time, on-site or off-site;
   15) "dangerous substance" means a substance, mixture or preparation within the meaning of Council Directive 67/548/EEC of 27 June 1967 on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (17) and Directive 1999/45/EC of the European Parliament and of the Council of 31 May 1999 concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations (18) ;
   16) "best available techniques" is as defined in Article 2(11) of Directive 96/61/EC;
   17) "receiving body of water" means surface waters as defined in Article 2(1) of Directive 2000/60/EC, groundwater as defined in Article 2(2) of Directive 2000/60/EC, transitional waters as defined in Article 2(6) of Directive 2000/60/EC, and coastal water as defined in Article 2(7) of Directive 2000/60/EC;
   18) "rehabilitation" means the treatment of land affected by a waste facility in such a way as to restore the land to a satisfactory state, with particular regard at least to pre-working soil quality, (with special reference to composition and structure), wild life, natural habitats, freshwater systems, landscape and appropriate beneficial uses;
   19) "the public" means one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups;
   20) "the public concerned" means the public affected or likely to be affected by, or having an interest in, environmental decision-making under Article 5 and Article 6 of the present Directive; for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting relevant requirements under national law shall be deemed to have such an interest;
   21) "operator" means the natural or legal person responsible for the management of extractive waste, in accordance with the national law of the Member State in which waste management takes place, including in respect of the operational and the after-closure phases;
   22) "waste holder" means the producer of the waste or the natural or legal person who is in possession of it;
   23) "competent person" means a natural person who has the technical knowledge and experience, as defined by the national law of the Member State in which the person operates, to carry out the duties arising from this Directive;
   24) "competent authority" means the authority which a Member State designates as responsible for performing the duties arising from this Directive;
   25) "site" means all land at a distinct geographic location under the management control of an operator.

Article 4

General requirements

1.   Member States shall ensure that operators of waste facilities take all measures necessary to prevent and reduce as far as possible any adverse effects on the environment and/or on human health brought about as a result of the management of the facility, including after its closure, and to prevent major accidents involving the facility and to limit their consequences for the environment and for human health.

2.   The measures required to achieve these objectives and referred to in paragraph 1 shall be based, inter alia , on the best available techniques, without prescribing the use of any technique or specific technology, but taking into account the technical characteristics of the waste facility, its geographical location and the local environmental conditions.

Article 5

Waste management plan

1.   Member States shall ensure that operators draw up a waste management plan for the minimisation, treatment, recovery and disposal into waste facilities of prospective and extractive waste.

2.  The objectives of the waste management plan shall be:

  a) to prevent or reduce waste production and its harmfulness, in particular by considering:
   i) waste management options in the design phase and in the choice of the method used for mineral extraction and treatment;
   ii) the changes that the waste may undergo in relation to an increase in surface area and exposure to conditions above ground;
   iii) placing waste back into the excavation void after extraction of the mineral, as far as is practically feasible and environmentally sound in accordance with existing environmental standards at Community level and with the requirements of this Directive where relevant and provided that it is not contrary to the public interest in respect of future use of the landscape;
   iv) putting topsoil back in place after the closure of the waste facility or, if this is not practically feasible, reusing topsoil elsewhere;
   v) using less dangerous substances for the treatment of mineral resources;
   b) to encourage the recovery of waste by means of recycling, reusing or reclaiming such waste, where this is environmentally sound, in accordance with existing environmental standards at Community level and/or other requirements of this Directive where relevant;
   c) to ensure short and long-term safe disposal of the waste in particular by considering short and long-term management during operation and after closure of a waste facility already in the design phase, and by choosing a design which requires little and ultimately no monitoring, control or management of the closed waste facility in order to prevent or at least minimise any long-term negative effects attributable to migration of airborne or aquatic pollutants from the waste facility, and to ensure the long-term geotechnical stability of any dams or heaps rising above the pre-existing ground surface.

3.  The waste management plan shall contain at least the following :

   a) waste characterisation in accordance with Annex II and the estimated total quantities of waste to be produced during the operational phase;
   b) a description of the operation generating such waste and of any subsequent treatment to which it is subject;
   c) a description of how the environment or human health may be affected by the disposal of such waste and the preventive measures to be taken in order to minimise environmental impact during operation and after closure, including the aspects referred to in Article 11(2) (a), (b), (d) and (e) ;
   d) the proposed control and monitoring procedures pursuant to Article 11(2)(c);
   e) the proposed plan for rehabilitation and closure including after-closure procedures and monitoring provided for in Article 12;
   f) measures for the prevention of water status deterioration, air and soil pollution pursuant to Article 13.

The waste management plan shall provide sufficient information to enable the competent authority to evaluate the operator's compliance with the requirements of this Directive. The plan shall explain, in particular, how the option and method chosen, as mentioned in paragraph 2(a)(i), will fulfil the objectives of the waste management plan as laid down in paragraph 2(a).

4.   The waste management plan shall be reviewed every five years and amended, as appropriate, in the event of significant changes to the operation of the waste facility or to the waste disposed of. Any amendments shall be notified to the competent authority.

5.   Plans produced pursuant to other national or Community legislation and containing the information specified in paragraph 3 may be used where this obviates the unnecessary duplication of information and the repetition of work on the part of the operator, on condition that all requirements under paragraphs 1 to 4 are met.

Article 6

Major-accident prevention and information

1.   The provisions of this Article shall apply to Category A waste facilities, as defined in Article 9, save for those waste facilities falling within the scope of Directive 96/82/EC.

2.   Without prejudice to other Community legislation, and in particular Council Directive 92/91/EEC of 3 November 1992 concerning the minimum requirements for improving the safety and health protection of workers in the mineral-extracting industries through drilling (eleventh individual directive within the meaning of Article 16(1) of Directive 89/391/EEC) (19) and Council Directive 92/104/EEC of 3 December 1992 on the minimum requirements for improving the safety and health protection of workers in surface and underground mineral-extracting industries (twelfth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC) (20) , Member States shall ensure that major-accident hazards are identified and the necessary features are incorporated into the design, construction, operation, maintenance , closure and after-closure of the waste facility in order to prevent such accidents and to limit their adverse consequences for human health and the environment, including any transboundary effects .

3.  For the purposes of the requirements under paragraph 2:

   a) each operator shall draw up a major-accident prevention policy for waste and put into effect a safety management system implementing it, in accordance with point 1 of Annex I. As part of that policy, the operator shall appoint a safety manager responsible for the implementation and periodic supervision of the major-accident prevention policy. The operator shall provide the competent authority with a safety report demonstrating how such policy and systems are implemented. The operator shall also draw up an internal emergency plan of the measures to be taken on site in the event of an accident;
   b) the competent authority shall draw up an external emergency plan for the measures to be taken off site in the event of an accident. The operator shall provide the competent authority with the information necessary to enable the latter to draw up that plan.

4.  The emergency plans referred to in paragraph 3 shall have the following objectives:

   a) to contain and control major accidents and other incidents so as to minimise their effects, and in particular to limit damage to human health or to the environment and property;
   b) to implement the measures necessary to protect human health, the environment and property from the effects of major accidents and other incidents;
   c) to communicate the necessary information to the public and to the services or authorities concerned in the area;
   d) to provide for the rehabilitation, restoration and clean-up of the environment following a major accident.

Member States shall ensure that, in the event of a major accident, the operator immediately provides the competent authority with all the information required to help minimise its consequences for human health and to assess and minimise the extent, actual or potential, of the environmental damage.

5.   Member States shall ensure that the public concerned are given early and effective opportunities to participate in the preparation or review of the external emergency plan to be drawn up in accordance with paragraph 3. To that end, the public concerned shall be informed about any such proposal and relevant information shall be made available, including information about the right to participate in the decision-making process and about the competent authority to which comments and questions may be submitted.

Member States shall ensure that the public concerned is entitled to express comments within reasonable timeframes and that, in the decision on the external emergency plan, due account is taken of these comments.

6.   Member States shall ensure that information on safety measures and on the action required in the event of an accident, containing at least the items listed in point 2 of Annex I, is provided, free of charge and as a matter of course, to the public concerned.

That information shall be reviewed every three years and, where necessary, updated.

Article 7

Application and permit

1.   In accordance with Article 9 of Directive 75/442/EEC, no waste facility shall be allowed to operate without a permit granted by the competent authority. The permit shall contain the information specified in paragraph 2 and shall clearly indicate the category of the facility, pursuant to the criteria set out in Article 9. Any structural alterations of a qualitative or quantitative nature undertaken after the operating permit has been issued shall be subject to authorisation.

Subject to compliance with all requirements under this Article, any permit produced pursuant to other national or Community legislation may be combined to form a single permit, where such a format obviates the unnecessary duplication of information and the repetition of work on the part of the operator or competent authority.

2.  The application for a permit shall contain at least the following details:

   a) the identity of the operator;
   b) the proposed location of the waste facility, including any possible alternative locations;
   c) the type of mineral or minerals extracted and the nature of any overburden and/or gangue minerals that will be displaced in the course of the extractive operations;
   d) the waste management plan pursuant to Article 5;
   e) where applicable, a document demonstrating that a major-accident prevention policy and a safety management system for implementing it have been put into effect in accordance with Article 6(3);
   f) adequate arrangements by way of a guarantee, as required under Article 14;
   g) the information provided by the operator in accordance with Article 5 of Directive 85/337/EEC (21) if an environmental impact assessment is required under that Directive.

3.   Member States shall take appropriate measures to ensure that the public are informed about applications for waste management permits in accordance with Article 8(1) and that the public concerned are given early and effective opportunities to participate in the procedure for the grant of waste management permits in accordance with Article 8(2) to (6) .

4.  A permit shall be granted only if the application shows that:

   a) the operator complies with all requirements under this Directive;
   b) the management of waste is in accordance with the relevant waste management plan or plans referred to in Article 7 of Directive 75/442/EEC.

5.   The information contained in a permit granted under this Article shall be made available to the competent national and Community authorities for the purpose of drawing up national and Community inventories of waste facilities respectively . Sensitive information of a purely commercial nature, such as information concerning business relations and cost components, shall not be made public.

Article 8

Public participation

1.  The public shall be informed, by public notices or other appropriate means, such as electronic media where available, of the following matters early in the procedure for granting a permit or, at the latest, as soon as the information can reasonably be provided:

   a) the application for a permit or, as the case may be, the proposal for the updating of a permit in accordance with Article 7;
   b) where applicable, the fact that a decision is subject to consultation between the Member States in accordance with Article 15;
   c) details of the competent authorities responsible for taking the decision, those from which relevant information can be obtained, those to which comments or questions can be submitted, and details of the time schedule for transmitting comments or questions;
   d) the nature of possible decisions or, where there is one, the draft decision;
   e) where applicable, the details relating to a proposal for the updating of a permit or of permit conditions;
   f) an indication of the times and places where, or the means by which, the relevant information will be made available;
   g) details of the arrangements for public participation and consultation made pursuant to paragraph 5.

2.  Member States shall ensure that, within appropriate time frames, the following is made available to the public concerned:

   a) in accordance with national legislation, the main reports and advice issued to the competent authority or authorities at the time when the public were informed in accordance with paragraph 1;
   b) in accordance with the provisions of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information(22) , any information in addition to that referred to in paragraph 1 of this Article which is relevant for the decision in accordance with Article 7 of this Directive and which only becomes available after the time the public have been informed in accordance with paragraph 1 of this Article.

3.   The public concerned shall be entitled to express comments and opinions to the competent authority before a decision is taken.

4.   The results of the consultations held pursuant to this Article shall be taken into due account in the taking of a decision, with explanations being given for individual comments and opinions.

5.   The detailed arrangements for public participation under this Article shall be determined by the Member States so as to enable the public concerned to prepare and participate effectively.

6.  When a decision has been taken the competent authority shall, in accordance with the appropriate procedures, inform the public concerned and shall make the following information available to the public concerned:

   a) the content of the decision, including a copy of the permit;
   b) the reasons and considerations on which the decision is based.

Article 9

Classification system for waste facilities

For the purposes of this Directive, Member States shall classify waste facilities which are either heaps or engineered ponds in one of the following categories, depending on their hazard potential:

   (1) Category A: a waste facility whose failure or incorrect operation would present a significant accident hazard;
   (2) Category B: any waste facility not included in Category A.

The criteria for determining the classification of a waste facility in Category A are set out in Annex III.

Article 10

Excavation voids

Member States shall ensure that when considering placing waste and other production residues back into excavation voids, operators take appropriate measures in order to:

   1) secure the stability of such waste and the excavation void in accordance with Article 11(2);
   2) prevent the pollution of the soil and of surface and groundwater in accordance with paragraphs 1, 2 and 6 of Article 13;
   3) monitor such waste and the excavation void in accordance with paragraphs 4 and 5 of Article 12 .

Directive 1999/31/EC shall continue to apply to non-extractive waste used for filling in excavation voids.

Article 11

Construction and management of waste facilities

1.   Member States shall take appropriate measures to ensure that the management of a waste facility is in the hands of a competent person and that technical development and staff training are provided.

2.  The competent authority shall satisfy itself that, in constructing a new waste facility or modifying an existing waste facility, operators ensure that:

   a) the waste facility is suitably located, taking into account in particular Community or national obligations relating to protected areas and geological, hydrogeological and geotechnical factors, and is designed so as to meet the necessary conditions for preventing pollution of the soil, groundwater or surface water and ensuring efficient collection of contaminated water and leachate as and when required under the permit;
   b) the waste facility is constructed, managed and maintained so as to ensure its physical stability and to prevent pollution or contamination of soil, surface water or groundwater;
   c) there are suitable arrangements for regular monitoring and inspection of the waste facility by competent persons from the competent authority and for taking action in the event of results indicating instability or water or soil contamination;
   d) there are appropriate arrangements for the independent validation of the design, location and construction of the waste facility by an expert not employed by the operating company prior to commencement of operations. In particular, the reports resulting from such independent validation shall be submitted to the competent authority, which will then use them to approve the design, location and construction of the waste facility;
   e) suitable arrangements are made for the rehabilitation of the land and the closure of the waste facility;
   f) suitable arrangements are made for the management of the waste facility after operations have ceased.

Records of the monitoring and inspections referred to in point (c) shall be kept, together with permit documentation, on a data sheet so as to ensure the appropriate hand-over of information, particularly in the event of a change of operator .

3.   Operators shall, without unnecessary delay, notify the competent authority of any events likely to affect the stability of a facility and any significant adverse environmental effects revealed by the waste facility control and monitoring procedures . Operators shall implement the internal emergency plan and follow any other instruction from the competent authority as to the corrective measures to be taken.

Operators shall meet the costs of the measures to be undertaken.

At a frequency to be determined by the competent authority, and in any event at least once a year, operators shall report, on the basis of aggregated data, all monitoring results to the competent authorities for the purposes of demonstrating compliance with permit conditions and increasing knowledge of waste behaviour. On the basis of this report the competent authority may decide that validation by an independent expert is necessary.

4.    Where a waste facility falls into Category A, the operator shall submit to the competent authority as part of the application for a permit a report on how it will meet the requirements set out in paragraph 2(a) to (f). The competent authority may require further clarification and the development of complementary studies.

Article 12

Closure and after-closure procedures for waste facilities

1.   Member States shall take measures to ensure compliance with paragraphs 2 to 5.

2.  A waste facility shall only start the closure procedure if one of the following conditions is satisfied:

   a) the relevant conditions stated in the permit are met;
   b) authorisation is granted by the competent authority, at the request of the operator;
   c) the competent authority issues a reasoned decision to that effect.

3.   A waste facility may be considered as finally closed only after the competent authority has, without undue delay, carried out a final on-site inspection, assessed all the reports submitted by the operator, certified that the site has been rehabilitated and communicated to the operator its approval of the closure.

That approval shall not in any way reduce the operator's obligations under the conditions of the permit or otherwise in law.

4.   Save where the competent authority decides to take over such tasks from the operator, after a waste facility has been finally closed and without prejudice to any national or Community legislation governing the liability of the waste holder, the operator shall be responsible for its maintenance, monitoring and control in the after-closure phase for as long as may be required by the competent authority, taking into account the nature and duration of the hazard.

5.  When considered necessary by the competent authority, in order to meet Community environmental standards, in particular those in Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community (23) , Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances (24) and Directive 2000/60/EC, following closure of a waste facility, the operator shall, inter alia, control the physical and chemical stability of the facility and minimise any negative environmental effect, in particular with respect to surface and groundwater, by ensuring that:

   a) all the structures pertaining to the facility are monitored and conserved, with control and measuring apparatus always ready for use;
   b) where applicable, overflow channels and spillways are kept clean and free;
   c) passive or active water treatment facilities are set up when necessary to prevent the migration of contaminated leachate from the facility to contiguous groundwater or surface water bodies.

6.   Following closure of a waste facility, the operator shall, without delay, notify any events or developments likely to affect the stability of the facility, and any significant adverse environmental effects revealed by the relevant control and monitoring procedures. The operator shall implement the internal emergency plan and follow any other instruction from the competent authority as to the corrective measures to be taken.

The operator shall meet the costs of the measures to be undertaken.

In cases and at a frequency to be determined by the competent authority, and in any event at least once a year, the operator shall report, on the basis of aggregated data, all monitoring results to the competent authorities for the purposes of demonstrating compliance with permit conditions and increasing knowledge of waste behaviour.

Article 13

Prevention of water status deterioration, air and soil pollution

1.  The competent authority shall satisfy itself that the operator has taken the necessary measures to meet Community environmental standards, in particular to prevent, in accordance with Directive 2000/60/EC, the deterioration of current water status, inter alia, by :

   a) evaluating the leachate generation potential, including the contaminant content of the leachate, of the waste disposed of during both the operational and after-closure phase of the waste facility and determining the water balance of the waste facility;
   b) preventing leachate generation and soil, surface water or groundwater from being contaminated by the waste;
   c) collecting contaminated water and leachate;
   d) treating contaminated water, leachate and any other effluent collected from the waste facility to the appropriate standard required for their discharge, so that it complies with Community obligations, in particular those in Directives 76/464/EEC, 80/68/EEC and 2000/60/EC .

2.    The competent authority shall ensure that the operator has taken adequate measures to prevent air pollution, particularly by dust.

3.    Where, on the basis of an assessment of environmental risks, taking into account, in particular, Directives 76/464/EEC, 80/68/EEC or 2000/60/EC , as applicable, the competent authority has decided that collection and treatment of leachate is not necessary or it has been established that the waste facility poses no potential hazard to soil, groundwater or surface water, by means of the analysis required under Directive 2000/60/EC , the relevant requirements set out in points (b) to (d) of paragraph 1 may be reduced or waived accordingly.

4.    Member States shall make the disposal of extractive waste, whether in solid, slurry or liquid form, into any receiving body of water conditional upon compliance by the operator with the relevant requirements of Directive 2000/60/EC.

5.    In the case of a pond involving the presence of cyanide, the operator shall ensure that the concentration of weak acid dissociable cyanide in the pond is reduced to the lowest possible level using best available techniques and, in any case, that the concentration of weak acid dissociable cyanide at the point of discharge of the tailings from the processing plant into the pond does not exceed 50 ppm as from [transposition date], 25 ppm as from [transposition date + five years] and 10 ppm as from [transposition date + ten years].

If the competent authority so requests, the operator shall demonstrate, by means of a risk assessment that takes site-specific conditions into account, that those concentration limits could not be further lowered.

6.   In the case of excavation voids, including underground voids and back-filled surface mine voids, which are allowed to flood after closure, the operator shall take the necessary measures to prevent water status deterioration and soil pollution, and shall provide the competent authority with information on the following at least 6 months before the cessation of dewatering of the voids:

   a) the layout of excavated voids, clearly marking those that are to be allowed to flood following cessation of dewatering, and geological details;
   b) a summary of the quantity and quality of water encountered in the excavated voids during at least the last two years of working;
   c) predictions of the impact, including location and quantity, of any future polluting discharges from the excavated voids to groundwater and surface water, and plans for the mitigation and remediation of such discharges;
   d) proposals for monitoring the process of flooding of the voids, to provide early warning of any need to instigate mitigation measures.

Article 14

Financial guarantee and environmental liability

1.  The competent authority shall, prior to the commencement of any operations involving the deposit into or onto land of waste, require a guarantee, e.g. financial deposit or equivalent, in accordance with procedures to be decided by the Member States and approved by the Commission, so that:

   a) all obligations under the permit issued pursuant to this Directive, including after-closure provisions, are discharged;
   b) there are funds readily available at any given time for the rehabilitation of the land affected by the waste facility.

2.  The calculation of the guarantee referred to in paragraph 1 shall be made according to:

   a) the likely environmental impact of the facility, taking into account in particular the category of the facility, the characteristics of the waste and the future use of the rehabilitated land;
   b) the assumption that independent and suitably qualified third parties will assess and perform any rehabilitation work needed.

3.   The size of the guarantee shall be periodically adjusted in accordance with any rehabilitation work needed to be carried out on the waste facility.

4.   Where the competent authority approves closure in accordance with Article 12(3), it shall provide the operator with a written statement releasing him from the obligation to deposit a guarantee referred to in paragraph 1(b) and from all the obligations referred to in paragraph 1(a) other than those concerning the stage subsequent to the closure of the facility pursuant to Article 12(4).

5.   The provisions of Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage shall apply mutatis mutandis in respect of environmental damage caused by the operation of any extractive waste facility, as well as in respect of any imminent threat of such damage occurring by reason of the operation of any such a facility.

6.    Any authorisation to construct a new waste facility on an active site shall be conditional upon the operator first providing a guarantee as provided for in paragraph 1.

Article 15

Transboundary effects

1.   Where a Member State is aware that the operation of a Category A waste facility is likely to have significant adverse effects on the environment of another Member State, or where a Member State is likely to be thus affected, the Member State in whose territory the application for a permit pursuant to Article 7 is submitted shall forward the information provided pursuant to that Article to the other Member State at the same time as it makes it available to its own nationals. Such information shall serve as a basis for any consultation necessary within the context of bilateral relations between the two Member States on a reciprocal and equivalent basis.

2.   Within the framework of their bilateral relations, Member States shall ensure that in the cases referred to in paragraph 1 permit applications are also made available for an appropriate period of time to the public concerned of the Member State likely to be affected so that they will have the right to comment on them before the competent authority reaches its decision.

3.   Member States shall ensure that, in the event of an accident involving a waste facility as referred to in paragraph 1, information provided by the operator to the competent authority pursuant to Article 6(4) is immediately forwarded to the other Member State in order to help minimise the consequences of the accident for human health and to assess and minimise the extent of the actual or potential environmental damage.

Article 16

Inspections by the competent authority

1.   Prior to the commencement of disposal operations and at regular intervals to be decided by the Member State concerned, the competent authority shall inspect any waste facility covered by Article 6 in order to ensure that it complies with the relevant conditions of the permit. An affirmative finding shall in no way reduce the responsibility of the operator under the conditions of the permit.

2.   Member States shall require the operator to keep up-to-date records of all waste management operations and make them available for inspection by the competent authority and to ensure that, in the event of a change of operator during the management of a waste facility, there is an appropriate transfer of relevant up-to-date information and records relating to the facility.

Article 17

Obligation to report

1.   At intervals of three years Member States shall transmit to the Commission a report on the implementation of this Directive. The report shall be drawn up on the basis of a questionnaire or outline to be adopted by the Commission in accordance with the procedure referred to in Article 22 (2). The report shall be transmitted to the Commission within nine months of the end of the three-year period covered by it.

The Commission shall publish a report on the implementation of this Directive within nine months of receiving the reports from the Member States.

2.   Every year Member States shall transmit to the Commission information on events notified by operators in accordance with Articles 11(3) and 12(6). The Commission shall make this information available to the Member States upon request. Member States shall in turn make the information available to members of the public concerned on request.

Article 18

Penalties

The Member States shall lay down rules on penalties for infringement of the provisions of national law adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive.

Article 19

Inventory of closed sites

Member States shall ensure that:

  1. within three years from the entry into force of this Directive, an inventory of closed sites (including disused facilities) located on their territory is drawn up. Such an inventory, to be made available to the public, shall at least contain information on the following:
   a) the geo-referenced location of the site;
   b) the type of mineral or minerals formerly extracted;
   c) the types of waste present on the site;
   d) the physical and chemical stability of the site;
   e) whether any acid or alkaline drainage, or metal concentration, is being generated;
   f) the environmental conditions of the site, with particular regard to the quality of the soil, of surface water and its receiving catchment area, including river sub-basins, and of groundwater;
   2. the sites listed in the inventory referred to in point 1 are classified according to the degree of their impact on human health and the environment. The upper part of the inventory will thus include closed sites causing serious negative environmental impacts or which have the potential of becoming in the near future a serious threat to human health, the environment and/or property. The lower part of the inventory will include those sites with no significant negative environmental impacts and no potential of becoming in future a threat to human health, the environment and/or to property;
   3. within four years of the entry into force of this Directive, rehabilitation is started on sites classified in the upper part in order to satisfy the requirements of Article 4 of Directive 75/442/EEC. Where the competent authority cannot ensure that the necessary rehabilitation measures can all be started at the same time, the competent authority shall be entitled to decide which sites must be rehabilitated first;
   4. the financial costs for complying with the requirement of point 3 are to be borne by the waste producer, insofar as the latter is known and can be reached. Where the waste producer is unknown or cannot be reached, national or Community rules on liability shall apply.

Article 20

Exchange of information

1.   The Commission, assisted by the Committee referred to in Article 22 , shall ensure that there is an appropriate exchange of technical and scientific information between Member States, with a view to developing methodologies relating to fulfilling the requirements of Article 19. Such methodologies shall, in particular, allow for the establishment of the most appropriate risk assessment procedures and remedial actions having regard to the variation of geological and hydrogeological characteristics across Europe:

2.   The Member States shall ensure that the competent authority follows or is informed of developments in best available techniques.

3.   The Commission shall organise an exchange of information, with the participation of the European IPPC Bureau and in accordance with the procedure for drawing up best available reference documents (BREFs) pursuant to Directive 96/61/EC, between Member States and the organisations concerned on best available techniques, associated monitoring and developments in them. The Commission shall publish the results of the exchange of information.

Article 21

Implementing and amending measures

1.  Within three years of the date of entry into force of this Directive, the Commission shall adopt, in accordance with the procedure referred to in Article 22(2) , the provisions necessary for the following:

   a) the harmonisation and regular transmission of the information referred to in Articles 7(5) and 12(6) of this Directive;
   b) the implementation of Article 13(4), including technical requirements relating to the definition of weak acid dissociable cyanide and its measurement method;
   c) technical guidelines for the establishment of the financial guarantee in accordance with the requirements of Article 14(2);
   d) technical guidelines for inspections in accordance with Article 16;
   e) completion of the technical requirements for waste characterisation contained in Annex II;
   f) definition of the criteria for the classification of waste facilities in accordance with Annex III, including any threshold concentrations for hazardous waste and dangerous substances;
   g) determination of any harmonised standards for sampling and analysis methods needed for the technical implementation of this Directive.

2.   Any subsequent amendments necessary for adapting the Annexes to scientific and technical progress shall be adopted by the Commission in accordance with the procedure referred to in Article 22(2) .

Those amendments shall be made exclusively with a view to achieving a high level of environmental protection.

Article 22

Committee

1.   The Commission shall be assisted by the Committee established under Article 18 of Directive 75/442/EEC, hereinafter "the Committee".

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

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

Article 23

Transitional provision

Member States shall ensure that any waste facility which has been granted a permit or which is already in operation before or on [date of transposition] complies with the provisions of this Directive within four years after that date, save for those set out in Article 14(1) for which compliance must be ensured within six years after that date.

Without prejudice to paragraph 1, Member States shall ensure that, from the entry into force of this Directive and notwithstanding any closure of a waste facility referred to in paragraph 1, operators:

   a) ensure that the facility in question is operated and, in the event of its closure, managed after such closure, in a way that does not hamper the fulfilment of the requirements of this Directive or of any other relevant Community legislation including Directive 2000/60/EC;
   b) ensure that the facility in question does not cause any deterioration of surface or groundwater status, in accordance with Directive 2000/60/EC, or soil pollution due to leachate, contaminated water or any other effluent or waste, whether in solid, slurry or liquid form;
   c) take all steps required to remediate the consequences of any breach under point (b) in order to achieve compliance with relevant Community legislation, including Directive 2000/60/EC.

Article 24

Transposition

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than on [date of entry into force + 18 months]. They shall forthwith inform the Commission thereof.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2.   Member States shall communicate the texts of the provisions of national law which they adopt in the field covered by this Directive to the Commission.

Article 25

Entry into force

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

Article 26

Addressees

This Directive is addressed to the Member States.

Done at …………

For the European Parliament For the Council

The President The President

ANNEX I

Major-accident prevention policy and information to be communicated to the public concerned

1.   Major-accident prevention policy

The operator's major-accident prevention policy and safety management system should be proportionate to the major-accident hazards presented by the waste facility. For the purpose of implementing them, account shall be taken of the following elements:

   1) the major-accident prevention policy should include the operator's overall aims and principles of action with respect to the control of major-accident hazards;
   2) the safety management system should include the part of the general management system which includes the organisational structure, responsibilities, practices, procedures, processes and resources for determining and implementing the major-accident prevention policy;
  3) the following issues shall be addressed by the safety management system
   a) organisation and personnel - the roles and responsibilities of personnel involved in the management of major hazards at all levels in the organisation; identification of training needs of such personnel and the provision of the training so identified; and involvement of employees and, where appropriate, subcontractors;
   b) identification and evaluation of major hazards - adoption and implementation of procedures for systematically identifying major hazards arising from normal and abnormal operations and assessment of their likelihood and severity;
   c) operational control - adoption and implementation of procedures and instructions for safe operation, including maintenance of plant, processes, equipment and temporary stoppages;
   d) management of change - adoption and implementation of procedures for planning modifications to, or the design of, new waste facilities;
   e) planning for emergencies - adoption and implementation of procedures to identify foreseeable emergencies by systematic analysis and to prepare, test and review emergency plans to respond to such emergencies;
   f) monitoring performance - adoption and implementation of procedures for the ongoing assessment of compliance with the objectives set by the operator's major-accident prevention policy and safety management system, and the mechanisms for investigation and taking corrective action in case of non-compliance. The procedures should cover the operator's system for reporting major accidents of near misses, particularly those involving failure of protective measures, and their investigation and follow-up on the basis of lessons learnt;
   g) audit and review - adoption and implementation of procedures for periodic systematic assessment of the major-accident prevention policy and the effectiveness and suitability of the safety management system; the documented review of performance of the policy and safety management system and its updating by senior management.

2.   Information to be communicated to the public concerned

(1)   Name of operator and address of the waste facility.

(2)   Identification, by position held, of the person providing the information.

(3)   Confirmation that the waste facility is subject to the regulations and/or administrative provisions implementing this Directive and, when applicable, that the information relevant to the elements referred to in Article 6(2) has been submitted to the competent authority.

(4)   An explanation in clear and simple terms of the activity or activities undertaken at the site.

(5)   The common names or the generic names or the general danger classification of the substances and preparations involved at the waste facility as well as waste which could give rise to a major accident, with an indication of their principal dangerous characteristics.

(6)   General information relating to the nature of the major-accident hazards, including their potential effects on the surrounding population and environment.

(7)   Adequate information on how the surrounding population concerned are to be warned and kept informed in the event of a major accident.

(8)   Adequate information on the actions the population concerned should take, and on the behaviour they should adopt, in the event of a major accident.

(9)   Confirmation that the operator is required to make adequate arrangements on site, in particular liaison with the emergency services, to deal with major accidents and to minimise their effects.

(10)   A reference to the external emergency plan drawn up to cope with any off-site effects from an accident. This should include advice to co-operate with any instructions or requests from the emergency services at the time of an accident.

(11)   Details of where further relevant information can be obtained, subject to the requirements of confidentiality laid down in national legislation.

ANNEX II

Waste characterisation

The waste to be disposed of in a facility shall be characterised in such a way as to guarantee the long-term physical and chemical stability of the structure and to prevent major accidents. The waste characterisation shall include, where appropriate and in accordance with the category of the facility, the following aspects:

   1) description of expected physical chemical and radiological characteristics of the waste to be disposed of, with particular reference to its stability under surface atmospheric/meteorological conditions ;
   2) classification of the waste according to the relevant entry in Commission Decision 2000/532/EC(25) , with particular regard to its hazardous characteristics;
   3) description of the chemical substances to be used during treatment of the mineral resource and their stability;
   4) description of the method of deposition;
   5) waste transport system to be employed.

ANNEX III

Criteria for determining the classification of waste facilities

A waste facility shall be classified in category A if:

   in the event of a breach or failure the loss of human life and/or major environmental damage cannot reasonably be excluded on the basis of a risk assessment taking into account factors such as the size, the location and the environmental impact of the waste facility, or
   it contains waste classified as hazardous under Directive 91/689/EEC, or
   it contains substances or preparations classified as dangerous under Directives 67/548/EEC or 1999/45/EC.

(1) Not yet published in OJ.
(2) OJ C …, …, p. …
(3) OJ C …, p. …
(4) OJ C 80, 30.3.2004, p. 35.
(5) Opinion of the European Parliament of 31 March 2004 .
(6) COM(2000) 664 final.
(7) OJ L 10, 14.1.1997, p. 13. Directive as last amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1).
(8) OJ L 257, 10.10.1996, p. 26. Directive as last amended by Regulation (EC) No 1882/2003.
(9) OJ C 65 E, 14.3.2002, p. 382.
(10) OJ L 242, 10.9.2002, p. 1.
(11) OJ L 194, 25.7.1975, p. 39. Directive as last amended by Regulation (EC) No 1882/2003.
(12) OJ L 182, 16.7.1999, p. 1. Directive as last amended by Regulation (EC) No 1882/2003.
(13) OJ L 327, 22.2.2000, p. 1. Directive as amended by Decision No 2455/2001/EC (OJ L 331, 15.12.2001, p. 1).
(14) OJ L 143, 30.4.2004, p. 56.
(15) OJ L 184, 17.7.1999, p. 23.
(16) OJ L 377, 31.12.1991, p. 20. Directive as amended by Council Directive 94/31/EC (OJ L 168, 2.7.1994, p. 28).
(17) OJ 196, 16.8.1967, p. l. Directive as last amended by Regulation (EC) No 807/2003 (OJ L 122, 16.5.2003, p. 36).
(18) OJ L 200, 30.7.1999, p. 1. Directive as last amended by Regulation (EC) No 1882/2003.
(19) OJ L 348, 28.11.1992, p. 9.
(20) OJ L 404, 31.12.1992, p. 10.
(21) Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ L 175, 5.7.1985, p. 40). Directive as last amended by Directive 2003/35/EC of the European Parliament and of the Council (OJ L 156, 25.6.2003, p 17).
(22) OJ L 41, 14.2.2003, p. 26.
(23) OJ L 129, 18.5.1976, p. 23.
(24) OJ L 20, 26.1.1980, p. 43.
(25) OJ L 203, 28.7.2001, p. 18.


Conclusion of the Arhus Convention *
European Parliament legislative resolution on the proposal for a Council decision on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision making and access to justice regarding environmental matters (COM(2003) 625 – C5-0526/2003 – 2003/0249(CNS))
P5_TA(2004)0241 A5-0173/2004

(Consultation procedure)

The European Parliament ,

–   having regard to the proposal for a Council decision (COM(2003) 625 )(1) ,

–   having regard to Article 175(1) and Article 300(2), first subparagraph, of the EC Treaty,

–   having regard to Article 300(3), first subparagraph, of the EC Treaty, pursuant to which the Council consulted Parliament (C5-0526/2003 ),

–   having regard to Rules 67 and 97(7) of its Rules of Procedure,

–   having regard to the report of the Committee on the Environment, Public Health and Consumer Policy and the opinion of the Committee on Legal Affairs and the Internal Market (A5-0173/2004 ),

1.   Approves the proposal for a Council decision as amended and approves conclusion of the Convention;

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

Text proposed by the Commission   Amendments by Parliament
Amendment 1
Recital 2a (new)
(2a) Through its provisions on access to justice, the Århus Convention furthers in particular the right to a fair trial in environmental matters and provides the public - upon fulfilment of certain conditions - with the possibility of defending the right to live in an environment adequate for health and well-being and of performing the duty to protect and improve the environment.

(1) Not yet published in OJ.


European satellite radionavigation programme *
European Parliament legislative resolution on the proposal for a Council Regulation on the establishment of structures for the management of the European satellite radionavigation programme (COM(2003) 471 – C5-0391/2003 – 2003/0177(CNS))
P5_TA(2004)0242 A5-0209/2004

(Consultation procedure)

The European Parliament,

–   having regard to the Commission proposal to the Council (COM(2003) 471 )(1) ,

–   having regard to Article 308 of the EC Treaty, pursuant to which the Council consulted Parliament (C5-0391/2003 ),

–   having regard to Rule 67 of its Rules of Procedure,

–   having regard to the report of the Committee on Industry, External Trade, Research and Energy (A5-0209/2004 ),

1.   Approves the Commission proposal as amended;

2.   Calls on the Commission to alter its proposal accordingly, pursuant to Article 250(2) of the EC Treaty;

3.   Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;

4.   Calls for initiation of the conciliation procedure under the Joint Declaration of 4 March 1975 if the Council intends to depart from the text approved by Parliament;

5.   Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially;

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

Text proposed by the Commission   Amendments by Parliament
Amendment 1
Recital 6
(6)   To this end, the Supervisory Authority will be able to conclude a concession contract with whichever consortium is selected on completion of the Galileo development phase and take steps to ensure compliance by that consortium with the obligations and, in particular, public service obligations arising from the concession contract.
(6)   To this end, the Supervisory Authority will conclude a concession contract with whichever consortium is selected by the Council in cooperation with the Joint Undertaking and the Commission, in good time before the end of the development phase, and take steps to ensure compliance by that consortium with the obligations and, in particular, public service obligations arising from the concession contract.
Amendment 2
Recital 7a (new)
(7a) The Supervisory Authority will be responsible for certification of the system and its components.
Amendment 3
Recital 11
(11)   Following the dissolution of the Joint Undertaking (on completion of the development phase), the Joint Undertaking will transfer to the Supervisory Authority ownership of the entire satellite radionavigation system (EGNOS and Galileo), including whatever may have been developed by the concessionaire during the deployment phase; this is justified on the grounds that the programme definition and development phases have been financed entirely from public funds and all the components thus developed will be placed at the disposal of the concessionaire; it also represents a quid pro quo for the fact that a major part of the deployment phase would have to be financed from Community appropriations .
(11)   Following the dissolution of the Joint Undertaking (on completion of the development phase), the Supervisory Authority will become the owner of the entire satellite radionavigation system (EGNOS and Galileo), since the programme definition and development phases have been financed entirely from public funds. Everything that has been developed by the concessionaire during the deployment phase will also become the property of the Supervisory Authority, since it was substantially financed from Community funds. All the components of the satellite navigation system will be placed at the disposal of the concessionaire.
Amendment 4
Recital 14
(14)   Provision needs to be made for the possible creation of a Scientific and Technical Committee to be responsible for research and expert valuation tasks.
(14)   Provision needs to be made for the possible creation of a Scientific and Technical Committee to be responsible for research and expert valuation tasks. The constructive work of the Signal Task Force should be essentially incorporated into this committee.
Amendment 5
Recital 15a (new)
(15a) Procedures whereby office-holders are appointed must be transparent.
Amendment 6
Article 2, indent 1
–   It shall act as a licensing authority vis-à-vis the private concessionaire responsible for implementing and managing the programme deployment and operating phases; under this head, it shall conclude with the latter the concession contract; it shall ensure that the concessionaire complies with the concession contract and the specifications annexed thereto; it shall grant the concessionaire the right to use the tangible and intangible assets referred to in paragraph 1 of Article 3 for the duration of the concession.
–   It shall act as a licensing authority vis-à-vis the private concessionaire responsible for implementing and managing the programme deployment and operating phases; under this head, it shall conclude with the latter the concession contract. In the event of delays in setting up the Supervisory Authority, the Commission and Council may authorise the Joint Undertaking to sign the contract. The Supervisory Authority shall ensure that the concessionaire complies with the concession contract and the specifications annexed thereto; it shall grant the concessionaire the right to use the tangible and intangible assets referred to in paragraph 1 of Article 3 for the duration of the concession.
Amendment 7
Article 2, indent 4
–   It shall act as the depositary of all the frequencies necessary to ensure the operation of the system and will be responsible for coordinating Member State actions in this respect; it shall deal directly with the concessionaire on matters relating to the use of these frequencies.
–   It shall act as the user rights depositary for all the frequencies necessary to ensure the operation of the system. The Member States shall agree to transfer these rights to the Supervisory Authority, which will be responsible for coordinating Member State actions in this respect; it shall deal directly with the concessionaire on matters relating to the use of these frequencies.
Amendment 8
Article 2, indent 4a (new)
   It shall ensure that the system and its components are certified; it shall employ recognised certification bodies to grant certificates and verify compliance with the relevant standards and conditions.
Amendment 10/rev.
Article 4, paragraph 3
3.   The seat of the Supervisory Authority shall be located in Brussels. The Supervisory Authority may set up its own local offices in the Member States, subject to the agreement of the latter.
3.   The seat of the Supervisory Authority shall be located close to the seat of the concessionaire. Its second seat shall be in Brussels. It may set up its own local offices in other Member States, subject to the agreement of the latter.
Amendment 11/rev.
Article 5, paragraph 2
2.   The Administrative Board shall be made up of twelve members. Six shall be appointed by the Commission, and six by the Council of the European Union. The term of office shall be five years. This term of office shall be renewable once.
2.   The Administrative Board shall be made up of twelve members. Four shall be appointed by the Commission, and eight by the Council of the European Union. The term of office shall be five years. This term of office shall be renewable once. The European Parliament may appoint an observer, who may attend the meetings of the Administrative Board.
Amendment 9
Article 20
A Centre or Security and Safety - permanent and operational - is hereby created under the auspices of the Secretary-General of the Council.
A Council joint action shall determine the powers of the European Union in the event that the functioning and manner of operation of the system threatens the internal and external security of the Union and its Member States .

(1) Not yet published in OJ


European Evidence Warrant *
European Parliament legislative resolution on the proposal for a Council framework decision on the European Evidence Warrant for obtaining objects, documents and data for use in proceedings in criminal matters (COM(2003) 688 – C5-0609/2003 – 2003/0270(CNS))
P5_TA(2004)0243 A5-0214/2004

(Consultation procedure)

The European Parliament,

–   having regard to the Commission proposal to the Council (COM(2003) 688 )(1) ,

–   having regard to Articles 31 and 34(2)(b) of the EU Treaty,

–   having regard to Article 39(1) of the EU Treaty, pursuant to which the Council consulted Parliament (C5-0609/2003 ),

–   having regard to Rules 106 and 67 of its Rules of Procedure,

–   having regard to the report of the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs and the opinion of the Committee on Legal Affairs and the Internal Market (A5-0214/2004 ),

1.   Approves the Commission proposal as amended;

2.   Calls on the Commission to alter its proposal accordingly, pursuant to Article 250(2) of the EC Treaty;

3.   Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;

4.   Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially;

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

Text proposed by the Commission   Amendments by Parliament
Amendment 1
Recital 3
(3)   The Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States was the first concrete measure in the field of criminal law implementing the principle of mutual recognition.
(3)   The Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States was the first concrete measure in the field of criminal law implementing the principle of mutual recognition, though its implementation by Member States has been disappointingly slow and incomplete.
Amendment 2
Article 6, paragraph 1a (new)
1a. The issuing authority shall certify in the warrant that the conditions laid down in paragraph 1 have been fulfilled.
Amendment 3
Article 9, paragraph 1
1.   Where the issuing authority requires objects, documents or data which are additional to an earlier European Evidence Warrant issued for the purpose of the same proceedings, and the content of the original warrant remains accurate, it shall not be required to issue a new European Evidence Warrant. In such circumstances, it shall issue a warrant for additional evidence containing the information set out in Form B in the Annex.
1.   Where the issuing authority requires objects, documents or data which are additional to an earlier European Evidence Warrant issued for the purpose of the same proceedings, and the content of the original warrant remains accurate, it shall not be required to issue a new European Evidence Warrant. In such circumstances, it shall issue a warrant for additional evidence containing the information set out in Form B in the Annex and shall, inter alia, clearly state the reasons for which the warrant for additional evidence is valid within the terms of the original warrant and Article 6 .
Amendment 8
Article 10, paragraph 4a (new)
(4a) Where data is exchanged pursuant to this Framework Decision, a data subject may claim the rights relating to data protection, including blocking, correction, deletion, and access to personal data and related remedies, which would accrue to him or her under the law of either the issuing or the executing Member State. In particular, a data subject may claim the rights that would accrue to him or her under the law of either the issuing or the executing Member State regarding the use of a criminal record in the executing Member State transmitted pursuant to this Framework Decision, including the rules on rehabilitation of offenders and concerning use of that record to determine guilt or sentencing in criminal proceedings.
Amendment 9
Article 12, paragraph 1, point (b)
(b) a natural person shall not be required to produce objects, documents or data which may result in self-incrimination; and
(b) a person shall not be required to produce objects, documents or data which may result in self-incrimination under the law of either the issuing or the executing Member State ;
Amendment 10
Article 13, introduction
The issuing authority may require that the executing authority:
Subject to Articles 11 and 12 the issuing authority may require that the executing authority:
Amendment 11
Article 15, paragraph 1
1.   A judge, investigating magistrate or prosecutor in the executing State shall oppose the recognition or execution of the European Evidence Warrant if this would infringe the ne bis in idem principle according to the Framework Decision 2003/.../JHA on the application of the principle of ne bis in idem.
1.   A judge, investigating magistrate or prosecutor in the executing State shall oppose the recognition or execution of the European Evidence Warrant if:
(a) this would infringe the ne bis in idem principle according to the Framework Decision 2003/.../JHA on the application of the principle of ne bis in idem, or where the issuing Member State has agreed that preference is given to the forum of another Member State in accordance with Article 4 of that Framework Decision, in accordance with other Community instruments or otherwise by agreement of the issuing Member State;
(b) the offence on which the evidence warrant is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law;
(c) the person who is the subject of the European evidence warrant may not, owing to his age, be held criminally responsible for the acts on which the evidence warrant is based under the law of the executing State;
(d) there are reasons to believe, on the basis of objective elements, that the warrant is issued for the purpose of prosecuting or punishing a person on account of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of these reasons;
(e) the execution of the warrant would prevent a Member State from applying its constitutional rules relating to due process, privacy and the protection of personal data, freedom of association, freedom of the press and freedom of expression in other media; or
(f) there are substantial grounds to believe that the execution of the warrant would undermine the obligation to respect the fundamental rights and fundamental legal principles enshrined in Article 6 of the EU Treaty, in particular regarding the right to a fair trial or the right to respect for private life, including data protection.
Amendment 12
Article 19, paragraph 1
1.   Member States shall put in place the necessary arrangements to ensure that any interested party, including bona fide third parties, have legal remedies against a European Evidence Warrant executed pursuant to Article 11 using coercive measures , in order to preserve their legitimate interests.
1.   Member States shall put in place the necessary arrangements to ensure that any interested party, including bona fide third parties, have legal remedies against a European Evidence Warrant executed pursuant to Article 11 in order to preserve their legitimate interests.
Amendment 13
Article 19a (new)
Article 19a
Subsequent use of evidence
The use of the evidence acquired pursuant to this Framework Decision shall in no way prejudice the rights of the defence in subsequent criminal proceedings in which that evidence is used, in particular as regards the admissibility of the evidence, the obligation to disclose that evidence to the defence and the ability of the defence to challenge that evidence.
Amendment 4
Article 22, paragraph 4a (new)
4a. No later than 1 October 2006, and annually thereafter, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Framework Decision, paying special attention to the application of procedural safeguards.
Amendment 5
Article 25, paragraph 1
1.   Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 1 January 2005.
1.   Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 1 January 2005 and shall make every effort to agree a Framework Decision on procedural safeguards for defendants, including in relation to the collection and admissibility of evidence, before that date.
Amendment 6
Article 25, paragraph 2a (new)
2a. Each Member State shall make a statement, which it shall deposit with the General Secretariat of the Council, naming the issuing authorities and executing authorities it designates.

(1) Not yet published in OJ.


European Centre for the Development of Vocational Training*
European Parliament legislative resolution on the proposal for a Council regulation amending Regulation (EEC) No 337/75 establishing a European Centre for the Development of Vocational Training (COM(2003) 854 – C5-0080/2004 – 2003/0334(CNS))
P5_TA(2004)0244 A5-0208/2004

(Consultation procedure)

The European Parliament ,

–   having regard to the Commission proposal to the Council (COM(2003) 854 )(1) ,

–   having regard to Article 308 of the EC Treaty, pursuant to which the Council consulted Parliament (C5-0080/2004 ),

–   having regard to Rule 67 of its Rules of Procedure,

–   having regard to the report of the Committee on Employment and Social Affairs (A5-0208/2004 ),

1.   Approves the Commission proposal as amended;

2.   Calls on the Commission to alter its proposal accordingly, pursuant to Article 250(2) of the EC Treaty;

3.   Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;

4.   Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially;

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

Text proposed by the Commission   Amendments by Parliament
Amendment 1
RECITAL 11
(11)   According to Article 3 of the Treaty, the Community shall aim to eliminate inequalities and promote equality between men and women in all its activities. It is therefore appropriate to make provision for encouraging a balanced representation of men and women in the composition of the Board.
(11)   According to Article 3 of the Treaty, the Community shall aim to eliminate inequalities and promote equality between men and women in all its activities. It is therefore appropriate to make provision for encouraging a balanced representation of men and women in the composition of the Governing Board and the Bureau .
Amendment 2
ARTICLE 1, POINT 2
Article 4, paragraph 2, subparagraphs 2 and 3 (Regulation (EEC) No 337/75)
The members referred to in points (a), (b) and (c) of the first subparagraph shall be appointed by the Council.
The members referred to in points (a), (b) and (c) of the first subparagraph shall be appointed by the Council on the basis of lists of candidates submitted by the Member States, employers" organisations and employees" organisations.
When submitting the lists of candidates, the Member States, employers" organisations and employees" organisations, shall endeavour to ensure a balanced representation of men and women in the composition of the Governing Board .
Amendment 3
ARTICLE 1, POINT 2
Article 4, paragraph 2, subparagraph 5 (Regulation (EEC) No 337/75)
The list of members of the Governing Board shall be published by the Council in the Official Journal of the European Union.
The list of members of the Governing Board and the Bureau shall be published by the Council in the Official Journal of the European Union and on the Centre's Internet site .
Amendment 4
ARTICLE 1, POINT 2
Article 4, paragraph 4 (Regulation (EEC) No 337/75)
4.   The Governing Board shall elect its chairman and three vice-chairmen, from among the three groups referred to in paragraph 5 and the Commission , to serve for a period of one year renewable.
4.   The Governing Board shall elect its chairman and three vice-chairmen, from among the three groups referred to in paragraph 5, to serve for a period of two years renewable.
Amendment 5
ARTICLE 1, POINT 2
Article 4, paragraph 5 (Regulation (EEC) No 337/75)
5.   Within the Governing Board, the representatives of governments, employees" organisations and employers" organisations shall form a group each. Each group shall designate a co-ordinator. The co-ordinators of the employees" and the employers" groups shall be representatives of their respective organisations at European level and attend the Board meetings without the right to vote.
5.   Within the Governing Board, the representatives of governments, employees" organisations and employers" organisations shall form a group each. Each group shall designate a co-ordinator. The co-ordinators of the employees" and the employers" groups shall be representatives of their respective organisations at European level and attend the Board and Bureau meetings without the right to vote.
Amendment 6
ARTICLE 1, POINT 2
Article 4, paragraph 8a (new) (Regulation (EEC) No 337/75)
8a. The Member States, the organisations referred to in paragraph 2, the Council, the Commission and the Governing Board shall endeavour, each according to their powers, to ensure a balanced representation of men and women in the candidacies and appointments referred to in paragraph 2, in the elections referred to in paragraph 4 and in the appointments referred to in paragraph 8.
Amendment 7
ARTICLE 1, POINT 2a (new)
Article 6, paragraph 1 (Regulation (EEC) No 337/75)
(2a) Article 6(1) shall be replaced by the following:
"1. The director and deputy director shall be appointed by the Commission from a list of candidates submitted by the Governing Board."
Amendment 8
ARTICLE 1, POINT 2b (new)
Article 6, paragraph 2 (Regulation (EEC) No 337/75)
(2b) Article 6(2) shall be replaced by the following:
"2. The director and the deputy director shall be chosen on the grounds of their competence and their independence shall be beyond doubt."
Amendment 9
ARTICLE 1, POINT 2c (new)
Article 6, paragraph 2a (new) (Regulation (EEC) No 337/75)
(2c) In Article 6 the following paragraph 2a shall be added:
"2a. The director and the deputy director shall be appointed for a period of five years. Their term of office shall be renewable."

(1) Not yet published in OJ.


Passenger name records
European Parliament resolution on the draft Commission decision noting the adequate level of protection provided for personal data contained in the Passenger Name Records (PNRs) transferred to the US Bureau of Customs and Border Protection (2004/2011(INI))
P5_TA(2004)0245 B5-0156/2004

The European Parliament ,

–   having regard to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(1) and, in particular, Article 25 thereof, and also Council Regulation (EEC) No 2299/89 of 24 July 1989 on a code of conduct for computerised reservation systems(2) ,

–   having regard to the draft Commission decision noting the adequate level of protection provided for personal data contained in the Passenger Name Records (PNRs) transferred to the US Bureau of Customs and Border Protection (C5-0124/2004 ),

–   having regard to the opinions delivered on 29 January 2004 by the Working Party on the Protection of Individuals with regard to the Processing of Personal Data referred to in Article 29 of Directive 95/46/EC and on 17 February 2004 by the committee referred to in Article 31 of that Directive,

–   having regard to its resolution of 9 March 2004 on the First Report on the implementation of the Data Protection Directive (95/46/EC)(3) ,

–   having regard to the position expressed by the national parliaments on this subject,

–   having regard to the opinion of the Belgian Committee on Privacy concerning two cases involving the transfer by three airlines of the personal data relating to certain transatlantic passengers (including those relating to an MEP), an opinion in which it is stated that both Belgian and EU privacy laws have been infringed; having regard to the Council's observation that "the US measures potentially conflict with Community and Member States" legislation on data protection" (2562nd meeting of the General Affairs Council held in Brussels on 23 February 2004); having regard to the internal Commission document which confirms that such a conflict does indeed exist; whereas Parliament has condemned the blatant violation of privacy laws, and whereas major responsibilities lie with the Commission, the Member States and certain authorities whose task is to safeguard privacy,

–   having regard to Article 8 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(4) ,

–   having regard to Rule 88 of its Rules of Procedure,

A.   whereas, pursuant to the Transport Security Act and the implementing provisions thereof (such as Aviation Security Screening Records(5) ), the US Administration requires airlines operating in Europe to provide access to the commercial data contained in Passenger Name Records (PNRs), so as to enable the potential threat which each passenger could present to be established in advance and to ensure that any terrorist or individual responsible for serious crime is identified and apprehended or denied entry to the US,

B.   whereas such access requires a clear legal framework if it is to be permitted under the privacy laws of the Member States and the Community, in spite of which fact neither the Commission nor the Member States nor the authorities which are responsible for safeguarding privacy and which have been granted binding powers have taken any action to ensure that the laws are enforced,

C.   whereas in the air-transport field a Passenger Name Record (PNR) is a file containing a package of commercial information including in particular:

   a) data enabling both the passenger and the persons accompanying him to be identified, together with the person who requested the reservation on the passenger's behalf, the agency or the employee who made the reservation and/or issued the ticket, and so on,
   b) the data relating to the journey for which the ticket has been issued, and also all the other sectors which make up the entire routing of a journey which may comprise a number of legs and therefore involve a number of tickets,
   c) data relating to means of payment, the passenger's credit card number, the special terms granted to particular groups (such as frequent flyers and members of special groups), e-mail addresses, physical addresses and private and/or office telephone numbers disclosed when the reservation was made, contact persons, and so on,
   d) data concerning a particular service relating to the passenger's state of health, his dietary preferences, and so on,
   e) specific remarks made by airline staff,
   f) where appropriate, details of reservations in respect of car hire and hotel rooms,

D.   whereas PNR data vary according to the commercial practices followed by each airline and are processed by means of reservation centres, and whereas appropriate extraction programmes would therefore have to be devised by the airlines for the purpose of extracting the data which could legitimately be transferred,

As regards the principles of data protection on the European side

E.   whereas Article 8(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) as interpreted by the European Court of Human Rights(6) allows interference in private life only '...where it is provided for by law(7) , where it is necessary(8) in a democratic society(9) to the pursuit of legitimate aims and where it is not disproportionate(10) in relation to the objective pursued,'

F.   whereas, at this stage, there is no legal basis in the European Union permitting the use of PNR commercial data for public-security purposes and whereas such a legal basis is essential in order to modify the purpose for which such were originally collected and to permit them to be used for public-security purposes,

G.   whereas such a legal basis must define the exact data to be collected, the rules to be followed for the processing of those data and the responsibilities of each party involved (passengers, airlines and public authorities),

H.   whereas the Council recently approved the Commission's negotiating mandate for an international agreement in this field,

... and on the US side

I.   whereas in the USA the protection of privacy, although mentioned in the Fourth Amendment to the Constitution, is not regarded as a fundamental right but

   a) is regulated by specific provisions (which do not, however, cover the transport sector) and by the Freedom of Information Act,
   b) grants only to US citizens and those legally resident the right to data protection and, in particular, the right of access to, and rectification of, only data held by the federal public authorities (1974 Privacy Act), with the result that
   c) no legal protection is currently granted in the case of data relating to non-US (and in particular European) passengers, nor is there any right of legal redress should the measures restricting the freedom to travel be abused,

As regards the legal impact of a decision on adequacy taken pursuant to Article 25 of Directive 95/46/EC

J.   aware of the fact that the draft Decision submitted by the Commission:

   a) is a measure designed merely to implement Directive 95/46/EC, which may not result in a lowering of the data-protection standards within the EU as established by means of Directive 95/46/EC,
   b) relates to a state of affairs which is still in a legal limbo both in the USA (since the 'undertakings' provided by the US side do not in all cases have legal effect) and in Europe (since no specific legal basis has yet been adopted which will enable PNR data to be legitimately transferred to public authorities),
   c) once it is adopted, will in practice deprive the Member States (which are currently responsible for protecting individuals as regards PNR data) of any scope for blocking transfers in order to uphold the rights of their citizens,

K.   regretting the fact that, throughout 2003, the Commission did not heed the repeated requests from Parliament and the data-supervision authorities calling upon it to:

   a) specify the data which could be legitimately transferred without risk (see the list of the 19 items suggested on 13 June 2003 by the Working Party referred to in Article 29 of Directive 95/46/EC(11) ),
   b) immediately replace the 'pull' system (which is used without a legal basis by the US Administration and which has no filters for sensitive data or for non-transatlantic flights) with the 'push' system (which enables each airline to transfer only legitimate data and only in respect of flights to US destinations),
   c) negotiate an international agreement with the USA which will offer genuine guarantees for passengers or, at the very least, the same protection as is afforded to US citizens,

L.   sharing most of the reservations expressed unanimously by the data supervision authorities meeting within the Working Party referred to in Article 29 of Directive 95/46/EC, in particular on 29 January 2004(12) ,

1.   Considers that the Commission Decision of ... noting the adequate level of protection provided for personal data contained in the Passenger Name Records transferred to the US Bureau of Customs and Border Protection goes beyond the executive powers conferred on the Commission since:

As regards the legal basis and the form

1.1.  The draft Decision is not (and could not be):

   a) a legal basis capable of enabling, within the European Union, the purpose for which the data were collected in the PNR to be changed and enabling them to be transferred by the airlines, in whole or in part, to third parties(13) ; its effect, however, may well be a lowering of the data-protection standards established by means of Directive 95/46/EC within the EU or the creation of new standards in agreement with third countries,
   b) an international agreement pursuant to which the Commission would be obliged to authorise the transfer of such data; one can only regret the ambiguous wording of some of the clauses contained in the Decision and of the appended undertakings (such as those concerning duration, monitoring arrangements, cases in which the Decision may be suspended or withdrawn, the terms and conditions under which the Member States may intervene, etc.), which might give the false impression that obligations could be derived from that text as they are explicitly excluded by clause 47, which stipulates that 'these Undertakings do not create any right or benefit on any person or party, private or public';

As regards substance

1.2.  The draft decision is based on 'Undertakings', the binding nature of which is far from proven as regards both:

   a) the source, which is purely administrative (and therefore subject to possible re-organisations within the Department of Home Security which would make the separations between internal structures obsolete); and
   b) the substance (since, on the one hand, guarantees are mentioned for which there is as yet no legal basis in the USA and, on the other, the option is kept open of amending the rules at any time, with particular reference to the arrangements for using and re-using the data);

1.3.   The 'pull' system for accessing PNR data undermines any limitations that may be agreed and must be replaced by a 'push' system with appropriate filters,

2.  Considers the importance of the issue to be such that the European Union should come to an arrangement with the USA on the basis of a proper international agreement which, with due respect for fundamental rights, stipulates:

   a) the data which could be transferred in an automated way (APIS) and the data which could possibly be transferred on a case-by-case basis,
   b) the list of the serious crimes in respect of which an additional request could be made,
   c) the list of authorities and agencies which could share the data and the data-protection conditions to be respected,
   d) the data-retention period for the two kinds of data, it being clear that data dealing with the prevention of serious crimes have to be exchanged in accordance with the EU-US agreement on judicial cooperation and extradition,
   e) the role to be played by airlines in transferring passengers' data and the means envisaged (APIS, PNR, etc.) for public-security purposes,
   f) the guarantees to be offered to passengers in order to enable them to correct the data relating to them or provide an explanation in the event of a discrepancy between the data relating to a travel contract and the data shown in identity documents, visas, passports and so on,
   g) the airlines' responsibilities vis-à-vis passengers and the public authorities in the event of transcription or encoding errors and as regards protection of the data processed,
   h) the right to appeal to an independent authority and redress mechanisms in the event of infringements of passengers" rights;

3.   Declares itself ready to deal under urgent procedure with an international agreement which complies with the above-mentioned principles; considers that if such an agreement were to be adopted, the Commission could legitimately declare that data would be adequately protected in the USA;

4.   Calls on the Commission to submit to Parliament a new adequacy-finding decision and to ask the Council for a mandate for a strong new international agreement in compliance with the principles outlined in this resolution;

5.  Pending a permanent legislative solution or the conclusion of one or more international agreements, calls upon:

   a) the Member States to require immediate compliance with Community legislation and their own domestic laws on privacy and draws particular attention to the obligation imposed (pursuant to Article 26(1)(a) of Directive 95/46/EC) on airlines and travel agencies to obtain passengers' consent for the transfer of data; such consent must be given freely and passengers must be informed of the options open to them for influencing the content of their PNR, of the implications of failing to give consent and of the fact that an adequate level of protection does not exist in the USA;
   b) the Commission to act in order to ensure that Regulation (EEC) No 2299/89 is enforced and, in particular, to check that data are not transferred (in particular by means of computer reservation systems) without a passenger's consent and that the administrations of third countries have no access to those systems;

6.  Calls on the Commission to block:

   a) the "pull" system from 1 July 2004, and from that date onwards to apply the "push" system with the 19 items suggested on 13 June 2003 by theWorking Party referred to in Article 29 of Directive 95/46/EC,
   b) the initiatives for establishing European centralised management of the PNR data as outlined in Communication COM(2003) 826 and recently confirmed by the competent Commissioner to the parliamentary committee, as such initiatives are for the time being in breach of the proportionality and subsidiarity principles;

7.   In the meantime, reserves the right to appeal to the Court of Justice should the draft decision be adopted by the Commission; reminds the Commission of the requirement for cooperation between institutions which is laid down in Article 10 of the Treaty and calls upon it not to take, during the election period, any decision such as the one with which this resolution is concerned;

8.   Reserves the right to bring an action before the Court of Justice in order to seek verification of the legality of the projected international agreement and, in particular, the compatibility thereof with the protection of a fundamental right;

9.   Considers it extremely important that the outcome of the negotiations should not be taken as a model for the EU's further work on the development of its own anti-crime measures, data storage and protection of confidentiality;

10.   Calls upon the Commission to withdraw the draft decision;

o
o   o

11.   Instructs its President to forward this resolution to the Council, the Commission, the parliaments and governments of the Member States and the US Congress.

(1) OJ L 281, 23.11.1995, p. 31. Directive as amended by Regulation (EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).
(2) OJ L 220, 29.7.1989, p. 1. Regulation as last amended by Regulation (EC) No 323/1999 (OJ L 40, 13.2.1999, p. 1).
(3) P5_TA(2004)0141.
(4) OJ L 184, 17.7.1999, p. 23.
(5) FEDERAL REGISTER 68 FR 2101. TSA intends to use this system of records to facilitate TSA's passenger and aviation security screening programme under the Aviation and Transportation Security Act. TSA intends to use the CAPPS II system to conduct risk assessments to ensure passenger and aviation security.
(6) European Court of Human Rights, Amann v. Switzerland judgment of 16 February 2000, Reports of Judgments and Decisions 2000-II, paragraph 65, and Rotaru v. Romania judgment of 4 May 2000, Reports of Judgments and Decisions 2000-V, paragraph 43.
(7) Recourse to a 'law ' is all the more justified where protection of a fundamental right is called for, since such protection cannot be left to administrative or purely implementing measures. A 'law' must be worded with a sufficient degree of precision to enable those who are covered by its provisions to regulate their conduct and it must meet the foreseeability requirement which emerges from the European Court of Human Rights case law (see in particular ECHR judgment, Rekvényi v. Hungary, 20 May 1999, Reports of Judgments and Decisions 1999-III, paragraph 34). In the case under consideration the law must also include explicit and detailed provisions concerning the persons authorised to consult records, the nature of those records, the procedure to be followed and the use which may be made of the information thus obtained (see ECHR judgment, Rotaru v. Romania, 4 May 2000).
(8) The concept of 'necessity ' implies that 'a pressing social need' is at issue and that the action taken must be 'proportionate to the legitimate aim pursued ' (see in particular ECHR judgment, Gillow v. United Kingdom, 24 November 1986, Series A No 109, paragraph 55), and that in this area the legislature enjoys a margin of discretion the scope of which will depend not only on the nature of the legitimate aim pursued but also on the particular nature of the interference involved (see ECHR judgment, Leander v. Sweden, 26 March 1987, Series A No 116, paragraph 59).
(9) The 'democratic' society criterion applies to relations between public authorities and the general public and is to be regarded as being all the more in evidence where the general public controls the institutions, rather than the other way round. Of course, in any democracy, irrespective of the nature of such relations, any arrangement for gathering and systematically storing data must be very carefully assessed, particularly in cases where such data relate to individuals who do not constitute a threat to the community.
(10) The proportionality criterion applies to all data-processing parameters (e.g. at what stage the data are transferred, which data are transferred, to whom and for what purpose, the length of data storage and the length of the dispensation). Under European law, such assessments must also be carried out bearing in mind the subsidiarity requirements which govern relations between the Member States and the European Union. This is all the more necessary in cases where, by virtue of an act passed by an institution, the Member States are prevented from intervening.
(11) The data should include the following information: PNR record locator code, date of reservation, date(s) of travel, passenger name, other names held in the PNR, routing, free ticket identifiers, one-way tickets, ticketing field information, ATFQ (Automatic Ticket Fare Quote) data, ticket number, date upon which the ticket was issued, no-show history, number of items of luggage, luggage-label numbers, no-show information, number of items of luggage on each sector, voluntary or involuntary changes of class, details of changes made to the PNR data and relating to the above-mentioned items.
(12) http://www.europa.eu.int/comm/internal_market/privacy/docs/wpdocs/2004/wp87_en.pdf
(13) Furthermore, the obligation imposed on airlines under US law cannot be regarded as a sufficient 'legal obligation' within the meaning of Article 7(c) of Directive 95/46/EC, since the latter is to be interpreted in the light of the 'fundamental rights [which, according to settled case law,] form an integral part of the general principles of law, whose observance the Court ensures' (see in particular the judgment of 6 March 2001, in Case C-274/99 P Connolly v Commission , ECR I-1611, paragraph 37).


Environment and health strategy
European Parliament resolution on a European Environment and Health Strategy (COM(2003) 338 – C5-0551/2003 – 2003/2222(INI))
P5_TA(2004)0246 A5-0193/2004

The European Parliament ,

–   having regard to the communication from the Commission to the Council, the European Parliament and the Economic and Social Committee on a European environment and health strategy (COM(2003) 338 – C5-0551/2003 ),

–   having regard to the proposal for a Council recommendation on cancer screening (COM(2003) 230 ) of 5 May 2003,

–   having regard to Rules 47(2) and 163 of its Rules of Procedure,

–   having regard to the report of the Committee on the Environment, Public Health and Consumer Policy (A5-0193/2004 ),

A.   whereas in the sixth environmental Community action programme, the EU has set itself the goal of contributing to a high level of quality of life for citizens, providing an environment in which the level of pollution does not give rise to harmful effects on human health and the environment,

B.   whereas the Community action programme on public health (2003-2008) considers that the environment constitutes a major determining factor of the health of individuals,

C.   whereas the objective of a European environment and health strategy is to achieve a better understanding of the environmental threats to human health, to identify disease burden caused by environmental factors in the EU and to plan policy responses to challenges that emerge,

D.   whereas the ultimate objectives of the proposed strategy are:

   - to reduce the disease burden caused by environmental factors in the EU;
   - to identify and prevent new health threats caused by environmental factors;
   - to strengthen EU capacity for policy-making in this area,

E.   whereas, at a time of EU enlargement, the stepping up of measures concerning environmental health is particularly important,

F.   whereas the strategy lists key reasons why the links between environment and health are very complex; whereas the complexity and the resulting indeterminate factors, uncertainties and gaps in knowledge must not be relied on as an excuse to delay precautionary or preventive action,

G.   whereas an integrated environment and health monitoring system is to be set up for the collection of data over time,

H.   whereas a ministerial Conference on Environment and Health is to be held in Budapest in June 2004, and it is important that the Commission's contribution, namely the Action Plan 2004-2010, should set a good example of addressing the disease burden caused by environmental factors in concrete terms,

I.   whereas the connections between the EU's own actions and other programmes, such as those of the WHO and OECD, should be taken into account, as it is purposeless to create and maintain overlapping actions and overlapping organisations,

J.   whereas, to be truly successful, an environment and health strategy should take an intersectoral approach; whereas the link between the strategy and future legislation needs to be emphasised,

K.   whereas no reference to the precautionary principle is made in the aforementioned communication and whereas a proactive approach using the precautionary principle needs to be applied when science is not conclusive, but when the potential costs and damage to our health and to the environment, incurred by inaction, are too great,

L.   whereas asthma and respiratory diseases are closely connected with traffic and air pollution,

M.   whereas the communication from the Commission does not attach sufficient importance to allergies and air pollution inside buildings and houses,

N.   whereas passive smoking is a significant source of environmental pollution,

O.   whereas climate change and its effects on health are not considered in the communication,

P.   whereas the legislative proposals on setting environmental quality standards and emission control measures for priority substances under Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy(1) have still not been presented, notwithstanding the fact that they were due by the end of 2003,

Q.   whereas there is still no legislative proposal for a revision of Council Directive 88/378/EEC of 3 May 1988 on the approximation of the laws of the Member States concerning the safety of toys(2) ,

R.   whereas there is still no harmonised legislation to protect children from soft PVC toys,

S.   whereas it is difficult to understand why pesticides are relegated to the 'second cycle' after 2010, given their strong potential adverse effects on health and the fact that Community legislation on pesticides is currently under review; whereas Community legislation should therefore fully take into account the potential risks of pesticides to children,

T.   having regard to the impact of preventive measures, particularly during childhood,

U.   whereas raising awareness is one of the main goals of the strategy,

V.   whereas the financing of the environment and health strategy needs to be clarified,

W.   whereas there is a lack of information on the link between, for example, emissions of dioxins and PCBs and their accumulation in ecosystems and foodstuffs,

1.   Welcomes the intention to improve understanding of the links between environmental factors and certain diseases, but considers it illusory to believe that the strategy could "fill the knowledge gap on the link between environment and health", let alone "generate the necessary information for establishing the cause-effect link", given the enormous complexity of the links between environment and health;

2.   Stresses the importance of considering the socio-economic impact in the work on environment and health;

3.   Calls on the Commission to always keep in mind the gender perspective during the implementation of the European environment and health strategy;

4.   Underlines that an immediate priority for the action plan must be a more comprehensive survey and evaluation in the short-term of the levels of evidence already available which explore the links between exposure to environmental factors and disease from the various studies already available, studies collected during the first phase, as well as available toxicological data, with a view to proposing concrete measures to protect human health and the environment as soon as possible;

5.   Calls on the Commission to establish an inventory of known damage to health caused by environmental factors, including the costs of such damage;

6.   Calls for the link between traffic, transport and air pollution, on the one hand, and asthma and respiratory diseases on the other, to be made stronger in the first cycle of the strategy, as asthma and respiratory diseases are closely connected with air pollution, and calls for an equal focus to be placed on the two problem areas;

7.   Recommends that the action plan should provide for more extensive measures to improve indoor air quality in the residential environment, public places (particularly nursery schools and schools) and work-places;

8.   Considers that protecting the health of children against environment-related diseases is an essential investment with a view to ensuring adequate human and economic development;

9.   Calls for the action plan to take account of the protection of inhabitants against risks arising from radon and carbon monoxide poisoning in the residential environment;

10.   Recommends that the action plan include studies to detect hot spots of emissions and exposure that endanger health and that these studies focus on the risks in question in order to find rapid solutions that will prevent adverse effects on health; also recommends that the action plan provide for the drafting of standards, protection measures as well as information on risks associated with the home;

11.   Calls for the action plan to devote particular attention to people living close to sources of pollution and to step up the policy of prevention based, in particular, on identifying, quantifying and reducing emissions and on stepping up monitoring of the environment for carcinogens and substances which damage the reproductive and nervous systems;

12.   Stresses the importance of protecting water resources and thus the need to limit industrial and urban emissions of pollutants, both diffuse and from point sources, and emissions from agriculture of fertilisers and phytopharmaceutical products, which will require changes to be made in agricultural policies and practices;

13.   Stresses that the action plan must take into account the problems linked to labelling, given that clear and user-friendly labelling is essential if consumers are to be informed and made aware of the impact on the environment of the products in question; believes, furthermore, that the action plan should establish other particular ways and means of ensuring appropriate information for children-consumers;

14.   Stresses that the link between the strategy's integrated monitoring and response system and the proposal for a regulation concerning the registration, evaluation, authorisation and restriction of chemicals - REACH, (COM(2003) 644 ), which will provide toxicological and exposure data, needs to be clarified and strengthened in the strategy; points out that current risk assessment methodologies do not specifically consider foetuses, infants and children and the wide range of exposure patterns that exist within this population;

15.   Calls on the Commission to request an opinion from its Scientific Committee on Toxicity, Ecotoxicity and the Environment to evaluate whether the current REACH proposal will provide adequate protection for children from exposure to harmful chemicals, in particular from articles;

16.   Considers that the anticipated biomonitoring should include certain pesticides as well as certain brominated flame retardants and phthalates so as to cover substances that are not yet adequately regulated;

17.   Recommends that the action plan include legislative proposals to reduce the dependency on pesticides in the context of the thematic strategy on the sustainable use of pesticides;

18.   Stresses the importance of education about environmental health; calls for the methods and activities to be undertaken for raising awareness to be better defined in the strategy; considers that the objective should be to inform each individual sufficiently so as to enable him or her to make the appropriate choices in relation to his or her own health; emphasises the crucial role of public access to information in this context; calls on the Commission to ensure that all evidence about environmental degradation that could harm health, in particular children's health, be made publicly available; calls specifically for the creation of publicly accessible registers on geographical mapping of major emissions on the one hand, and major diseases on the other hand;

19.   Calls for the precautionary principle to be included in the strategy and for the action plan to include a list of environmental contaminants, for which there is a sufficient level of scientific evidence at the effect level (e.g. molecular, cellular, or tissue-related) to show that potentially serious or irreversible health impacts are likely;

20.   Calls on the Commission to accelerate the pilot project 'Integrated monitoring of dioxins & PCBs in the Baltic region' and to start to use this integrated information as a basis for developing new policies without delay;

21.   Recommends that climate change and its health implications be addressed as a priority issue in the Community action plan and that measures to assess, prevent, reduce and mitigate the health impacts of climate change be proposed, using appropriate EU legislative instruments;

22.   22 Recommends that the Action Plan take into specific consideration the problem of passive smoking, in particular at the work place and in public buildings, and include legislative proposals to restrict smoking to dedicated closed rooms at the work place, as well as conduct an awareness campaign to inform the public of the effects of tobacco pollution on children's health;

23.   Underlines that putting in place a Community monitoring and response system and ensuring that it is truly successful and useful will require EU funding; points out that raising the general public's awareness and disseminating results and information will likewise require substantial resources; stresses that the financing of the strategy needs to clarified;

24.   Instructs its President to forward this resolution to the Council and Commission.

(1) OJ L 327, 22.12.2000, p. 1.
(2) OJ L 187, 16.7.1988, p. 1.

Last updated: 12 October 2004Legal notice