# EUR-Lex - 52012PC0631 - EN

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# 52012PC0631

**Proposal for a COUNCIL DECISION authorising enhanced cooperation in the area of financial transaction tax /* COM/2012/0631 final - 2012/0298 (APP) */**

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EXPLANATORY MEMORANDUM

1.           INTRODUCTION

On 28 September 2011, the Commission
adopted a proposal[1]
for a Council Directive on a common system of financial transaction tax (FTT) and
amending Directive 2008/7/EC[2].

The legal basis for the proposed Council Directive
was Article 113 TFEU, as the Commission proposed provisions for the
harmonisation of legislation concerning the taxation of financial transactions
to the extent necessary to ensure the proper functioning of the internal market
for transactions in financial instruments and to avoid distortion of
competition. This legal basis prescribes Council unanimity in accordance with a
special legislative procedure, after consulting the European Parliament and the
Economic and Social Committee.

The proposal aimed at

–
harmonising legislation concerning indirect
taxation on financial transactions, which is needed to ensure the proper
functioning of the internal market for transactions in financial instruments and
to avoid distortion of competition between financial instruments, actors and
market places across the European Union, and at the same time

–
ensuring that financial institutions make a fair
and substantial contribution to covering the costs of the recent crisis and
creating a level playing field with other sectors from a taxation point of view[3], and

–
creating appropriate disincentives for
transactions that do not enhance the efficiency of financial markets thereby
complementing regulatory measures to avoid future crises.

While already before the onset of the financial
and economic crisis some Member States had taxes only on some financial
transactions in place, several others have decided or made known their
intention to either introduce such a tax, broaden the scope of their existing
FTT and/or increase the tax rates so as to ensure that financial institutions
make a fair and substantial contribution to covering the costs of the recent
crisis, and for consolidating public budgets.

In this context the efficient functioning
of the internal market (for financial services in essence) required action
intended to avoid distortion of competition across borders, and among products
and actors. Such positive effects, as well as considerations of tax neutrality
required harmonisation with a broad scope, notably to also cover very mobile
products such as derivatives, mobile actors and market places.

In 2011, therefore, the Commission tabled
the above mentioned proposal for a Directive on a common system of FTT. That
proposal set out the essential features of such a common system for a broad
based FTT in the EU that aims at achieving these objectives. It was conceived
so as to minimise the risk of relocation.

The European Parliament delivered its favourable
opinion on 23 May 2012[4],
and the Economic and Social Committee on 29 March 2012[5]. Moreover, also the Committee
of Regions adopted a favourable opinion on 15 February 2012[6].

The proposal and variants thereof were extensively
discussed in the meetings of the Council, which started under the Polish
Presidency[7]
and continued at an accelerated pace under the Danish Presidency, but failed to
get the required unanimous support because of fundamental and un-bridgeable
differences amongst Member States.

At the Council meetings of 22 June and 10
July 2012, it was ascertained that essential differences in opinion persist as
regards the need to establish a common system of FTT at EU level and that the
principle of harmonised tax on financial transactions will not receive
unanimous support within the Council in the foreseeable future.

It follows from the above that the
objectives of a common system of FTT, as discussed in Council upon the
Commission's initial proposal, cannot be attained within a reasonable period by
the Union as a whole.

In these circumstances, ten Member States (Belgium,
Germany, Greece, Spain, France, Italy, Austria, Portugal, Slovenia and Slovakia)
have addressed formal requests to the Commission by letters received between 28
September and 22 October 2012 indicating that they wish to establish enhanced
cooperation between themselves in the area of the establishment of a common
system of FTT and that the Commission should submit a proposal to the Council
to that end. They specified that the scope and objectives should be based on
the Commission's proposal of September 2011 for a Council Directive on a common
system of financial transaction tax. Reference was also made in particular to the
need to avoid evasive actions, distortions and transfers to other
jurisdictions.

This proposal for a Council Decision
authorising enhanced cooperation in the area of FTT is the Commission's
response to these requests for enhanced cooperation.

2.           LEGAL BASIS FOR THE ENHANCED COOPERATION

Enhanced cooperation is regulated by
Article 20 of the Treaty on European Union (TEU) and Articles 326 to 334 of the
Treaty on the Functioning of the European Union (TFEU).

This proposal of the Commission for a
Council Decision authorising enhanced cooperation in the area of FTT is based
on Article 329(1) TFEU.

3.           MEASURES FORESEEN WITH A VIEW TO IMPLEMENTING
ENHANCED COOPERATION

The present proposal for a Council Decision
concerns the authorisation of enhanced cooperation in the area of FTT. A
proposal for specific measures implementing such enhanced cooperation – i.e.,
on substance, for a Directive on a common system of FTT – will be submitted in
due course. This proposal will be largely based on the original Commission proposal,
in terms of scope and objectives.

4.           ASSESSMENT OF THE LEGAL CONDITIONS FOR
ENHANCED COOPERATION

4.1.        Area
covered by the Treaty

Article 329(1) TFEU lays down that enhanced
cooperation can be established "in one of the areas covered by the
Treaties". This requirement is fulfilled.

First, a common system of FTT as
contemplated by the Commission proposal and in the discussions held in Council
is covered by the Treaties, as an instance of harmonised indirect taxation
within the meaning of Article 113 TFEU. According to this provision, the
Council may adopt provisions which, as the common system thus proposed and
discussed, are necessary to ensure the functioning of the internal market and
to avoid distortion of competition.

Second, a common FTT scheme like the one in
question is sufficiently broad to be considered as corresponding to an "area"
covered by the Treaties, in which enhanced cooperation may be established. The
essential framework would harmonise the structure of the tax and provide for
minimum rates. It would also attribute taxing rights as between Member States,
notably with a view to avoid double taxation or double non-taxation, harmonise
chargeability and designate the debtors of the tax. It would finally contain
various elements intended to ensure that the tax is effectively collected in
all Member States.

Article 20(1) TEU lays down that enhanced
cooperation can only be established "within the framework of the Union's
non-exclusive competences". The competence granted by Article 113 TFEU
concerns the establishment and proper functioning of the internal market which
is a shared, i.e. non-exclusive competence (Article 3 and 4(2) TFEU).

4.2.        Authorising
decision as last resort and participation of at least nine Member States

Article 20(2) TEU lays down that a decision
authorising enhanced cooperation can be adopted by the Council only as a last
resort, when it has established that the objectives of such cooperation cannot
be attained within a reasonable period by the Union as a whole, and that at least
nine Member States participate in it.

Already during the first relevant meeting
of the Council on Economic and Financial Affairs of 8 November 2011, some
Member States declared that they were against any common system of financial
transaction tax at the level of the European Union unless an FTT of similar
kind were introduced at the global level. At that stage, one Member State proposed
to vote on the proposal in order to spare any future discussion regarding
harmonised FTT at European level.

During the seven Council "Working
Party meetings on Tax Questions – Indirect Tax (FTT)", first under the
Polish and then under the Danish Presidency, in which also numerous alternative
design features of an FTT based on the Commission proposal were tabled,
examined and discussed, it was confirmed that unanimous support for a common
system of FTT, be it along the lines of the Commission proposal or any variant
thereof, could not be reached at the level of all Member States.

At the Council meeting on 22 June 2012, the
Member States that had expressed their opposition to a common system of FTT already
at earlier stages reiterated their position. In those circumstances, several
other Member States voiced their intention to request an authorisation for
engaging in enhanced cooperation in accordance with Article 20 TEU and Article
329 TFEU. Some of the opponents to a common system of FTT (of any kind) stated
that they would not oppose a procedure of enhanced cooperation on this issue in
case all the necessary requirements were met.

Having regard to the views expressed, the (Danish)
Presidency concluded at the same meeting that support for an FTT as proposed by
the Commission was not unanimous. The Presidency also noted that there was
support by a significant number of delegations for considering enhanced
cooperation.

On its part, the European Council stated at
its meeting of 28 June 2012: "[A]s
noted at the Council on 22 June 2012, the proposal for a Financial Transaction
Tax will not be adopted by the Council within a reasonable period. Several
Member States therefore will launch a request for an enhanced cooperation in
this area, with a view to its adoption by December 2012."

At the Council meeting of 10 July 2012, the
(then Cypriot) Presidency referred to the discussions held at the Council
meeting of 22 June 2012 and the above mentioned conclusions of the European
Council. It noted the lack of unanimous support for the FTT proposal discussed
under the Danish Presidency. It concluded that essential differences in opinion
persist as regards the need to establish a common system of FTT at EU level and
that the principle of harmonised tax on financial transactions will not receive
unanimous support within the Council in the foreseeable future. It finally
noted that there is support by a substantial number of Member States for
considering enhanced cooperation, which would allow a limited number of Member States
to first proceed among themselves.

It follows from the above that the
objectives of a common system of FTT, as proposed by the Commission and
discussed in Council, cannot be attained within a reasonable period by the
Union as a whole. Thus, the last resort for progress on this file within the Treaty
framework would be a process of enhanced cooperation in accordance with Article
20 TEU and Article 329 TFEU.

In these circumstances, ten Member States (Belgium,
Germany, Greece, Spain, France, Italy, Austria, Portugal, Slovenia and Slovakia)
have addressed formal requests to the Commission indicating that they wish to
establish enhanced cooperation between themselves in the area of the
establishment of a common system of FTT and that the Commission should submit a
proposal to the Council to that end.

4.3.        Furthering the objectives
of the Union, protecting its interests and reinforcing its integration process

The establishment of an internal market is
one of fundamental objectives of the Union as set out in Article 3(3) TEU. This
objective would be furthered through a common system of FTT, since capital
markets are now characterised by an important international dimension, and
significant differences in taxation in this field would entail significant
distortions of competition and would stand in the way of the establishment of a
real internal market for the products covered.

The harmonization of legislation concerning
different forms of indirect taxation in accordance with Article 113 TFEU serves
"the establishment and functioning of the internal market" and "to
avoid distortion of competition".

The coexistence of various national forms
of FTT currently applicable or that are likely to be applied in the foreseeable
future in a number of Member States, implies a fragmentation of the market.
This in turn translates in distortions of competition on account of tax
arbitrage, deflections of trade, both between products and geographical areas, incentives
for operators to avoid taxation through operations with little economic value
as well as extra costs borne by them due to the complexities inherent in such
situation. This scenario emerges already at present and will further develop if
no harmonisation is undertaken. It is contrary to the Union objective of a
properly functioning internal market, quite apart from its negative effects on tax
revenue.

This is of particular relevance in the
financial sector where the tax bases are highly mobile by nature and choices
depend often on the level of transaction costs (which include taxes) and where
the risk of a cost-driven relocation is very high.

The original Commission proposal based on Article 113 TFEU aimed at addressing
the above issues. By its nature, such objective of establishing a true internal
market and improving its functioning is equally pertinent within the scope of the
enhanced cooperation requested, i.e. among a smaller number of Member States.

At the beginning of the enhanced
cooperation, the immediate benefits for the internal market would, by
necessity, only accrue within the geographical reach of such cooperation, given
that not all Member States participate. However, as such cooperation must
"remain open at any time to all Member States" (Article 20(1) second
subparagraph TFEU, second sentence), its geographical reach will extend in a
corresponding manner, if and when other Member States join it.

Moreover, the advantages for the internal
market, in terms of reducing costs due complexity, will also accrue to institutions
of Member States not participating initially. Their financial transactions
covered by enhanced cooperation will be subject to a single common system and
not to a plethora of different national rules.

In sum, the enhanced cooperation requested
would further the objectives of the Union, protect its interests and reinforce
the integration process.

4.4.        Compliance with the
Treaties and Union law

In accordance with Article 326, paragraph 1,
TFEU, enhanced cooperation must comply with the Treaties and Union law. Thus, establishing
a common harmonised system of FTT, enhanced cooperation must respect the
existing acquis in this area.

At present, there is only one legal act of
the Union pertaining to taxation of financial transactions, namely Council
Directive 2008/7/EC[8].
In particular, in its Article 5(2) this Directive excludes any form of indirect
tax whatsoever on the issuance of certain securities (primary market
transactions in these securities). On the other hand, notwithstanding this
exclusion, Article 6(1)(a) of this Directive provides EU Member States with the
possibility to tax the transfer of securities (secondary market transactions). It
follows that while a tax may be charged on transfers of securities, no tax may
be charged on the issuance and acquisition by the first holder of financial instruments
covered by Article 5(2) of Directive 2008/7/EC.[9]

Any potential Council Directive
implementing enhanced cooperation in the area of FTT will have to respect the
provisions of Council Directive 2008/7/EC, so as to avoid any potential
conflict between the two Directives.

4.5.        No undermining of the
internal market or economic, social and territorial cohesion; no barrier to or
discrimination in trade; no distortion of competition

4.5.1.     Enhanced cooperation must
not undermine the internal market or economic, social and territorial cohesion

Article 326, paragraph 2, TFEU requires
that enhanced cooperation must not undermine the internal market or economic,
social and territorial cohesion.

The enhanced cooperation in the present
context would not conflict with the requirement that such cooperation must not
undermine the internal market. The harmonization of FTT in the territory of a
group of Member States (the FTT jurisdiction) would contribute to a better functioning
of the internal market, although those advantages will not accrue, both
immediately and fully, at the scale of all 27 Member States[10]. Risks of fragmentation of the
internal market and of a distortion of competition will first of all be reduced
and/or avoided within the scope of the FTT jurisdiction covered by enhanced
cooperation. Compared to a situation without such cooperation, the functioning
of the internal market, at the level of the 27 Member States, would be improved
rather than undermined.

Moreover, financial operators also from
outside the FTT jurisdiction will benefit from the simplification inherent in
the harmonised regime applicable by all participating Member States, as opposed
to a scenario of diverging non harmonised FTT regimes.

For similar reasons, economic, social and
territorial cohesion would not be adversely affected by the enhanced
cooperation sought. There are no indications that enhanced cooperation with a
view to the adoption of harmonising provisions regarding FTT would lead to
appreciable differences in the economic or social development between
participating and non-participating Member States. Nor would it, in particular,
in any way negatively affect the economic or social development of economically
poorer or geographically more remote regions of the European Union. In this
regard, it may also be noted that the Member States requesting enhanced
cooperation present important differences, both in regard to their economic
performance and to their geographic position within the Union.

4.5.2.     Enhanced cooperation must
not constitute a barrier to or discrimination in trade between Member States
nor distort competition between them

Article 326, paragraph 2, TFEU also requires
that enhanced cooperation must not constitute a barrier to or discrimination in
trade between Member States, nor distort competition between them.

The Commission considers that this
requirement is fulfilled, for the following reasons.

The terms of any harmonised FTT regime
operated under enhanced cooperation would apply consistently to all financial
institutions and transactions concerned, in accordance with objective criteria
and, notably, the geographical connecting factors referred to.

Moreover, the mere coexistence of the legal
system of harmonised FTT, applicable within the participating Member States, on
the one hand, and national legal systems of non-participating Member States, on
the other, cannot as such be considered a barrier, discrimination or distortion
of competition. In the absence of enhanced cooperation, an even greater number
of legal systems would coexist. From this perspective, rather, the enhanced
cooperation sought diminishes the potential for distortions of competition,
notably where it concerns distortions through non-taxation or double-taxation.

4.6.        Respecting the rights,
competences and obligations of non-participating Member States

Article 327 TFEU requires that any enhanced
cooperation respects the competences, rights and obligations of those Member
States that do not participate in it.

Enhanced cooperation in the area of a common
FTT system would comply with this requirement as well.

In particular, such system would in no way
affect the possibility for non-participating Member States to keep or introduce
an FTT on the basis of non-harmonised national rules, provided only they comply
with Union law obligations that are anyway applicable.

Moreover, the common system of FTT would
attribute taxing rights to the participating Member States only on the basis of
appropriate connecting factors.

5.           Overall conclusions

On the basis of the above, the Commission
concludes that all legal conditions set by the Treaties for enhanced
cooperation are fulfilled, provided that the act implementing the present
enhanced cooperation fully respects the relevant provision of Council Directive
2008/7/EC.

The Commission also considers that it is
appropriate and timely to authorise enhanced cooperation.

The recent global economic and financial
crisis had a serious impact on the economies and public finances in the EU. The
financial sector has played a major role in causing the economic crisis whilst
governments and European citizens at large have born the costs. The financial
sector has experienced high profitability over the last two decades which could
be partially the result of an (implicit or explicit) safety net provided by
governments, combined with banking regulation and VAT exemption.

Under these circumstances, some Member
States started to implement additional forms of financial sector taxation,
whilst other Member States already had in place specific tax regimes for
financial transactions.

The current situation leads to the
following undesirable effects:

- a fragmentation of the tax treatment in the
internal market for financial services - bearing in mind the increasing number
of uncoordinated national tax measures being put in place- with the consequent
possibilities of distortions of competition between financial instruments,
actors and market places across the European Union and double taxation or
double non-taxation;

- the financial institutions do not make a fair
and substantial contribution to covering the cost of the recent crisis and a
level playing field with other sectors from a taxation point of view is not
ensured;

- taxation policy does not contribute to
provide disincentives for transactions which do not enhance the efficiency of
financial markets nor complement regulatory measures to avoid future crises,
but which might only divert rents from the non-financial sector of the economy
to financial institutions and, thus, trigger over-investment in activities that
are not welfare enhancing.

The implementation of a common system of
financial transaction tax amongst a sufficient number of Member States would
entail immediate tangible advantages on all three points listed above, in
regard to financial transactions covered by enhanced cooperation. In connection
with these points, the position of the participating Member States in terms of relocation
risks, tax revenues and efficiency of the financial market and avoidance of
double taxation or non-taxation would be improved. Other Member States'
legislation and policy in the area would not be affected, whereas operators
from such other Member States may also benefit from the reduced fragmentation
of the internal market (cf. above). Through a regime along the lines of the
original Commission proposal it would be possible to address evasive actions,
distortions and transfers to other jurisdictions.

2012/0298 (APP)

Proposal for a

COUNCIL DECISION

authorising enhanced cooperation in the
area of financial transaction tax

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 329(1) thereof,

Having regard to the requests made by Belgium,
Germany, Greece, Spain, France, Italy, Austria, Portugal, Slovenia and Slovakia,

Having regard to the proposal from the
European Commission,

Having regard to the consent of the
European Parliament[11],

Whereas:

(1)       In accordance with Article
3(3) of the Treaty on European Union (TEU), the Union shall establish an
internal market.

(2)       Pursuant to Article 113 of
the Treaty on the Functioning of the European Union (TFEU) the Council shall adopt
provisions for the harmonisation of legislation concerning turnover taxes,
excise duties and other forms of indirect taxation to the extent that such
harmonisation is necessary to ensure the establishment and the functioning of
the internal market and to avoid distortion of competition.

(3)       In 2011, the Commission took
note of a debate on-going at all levels on additional taxation of the financial
sector. This debate originates from the desire to ensure that the financial
sector fairly and substantially contributes to the costs of the crisis and that
it is taxed in a fair way vis-à-vis other sectors for the future, to
disincentivise excessively risky activities by financial institutions, to
complement regulatory measures aimed at avoiding future crises and to generate
additional revenue for general budgets or specific policy purposes.

(4)       Against this background,
the Commission adopted a proposal for a Council Directive on a common system of
financial transaction tax and amending Directive 2008/7/EC.[12] The main objective of that
proposal was to ensure the proper functioning of the internal market and to avoid
distortion of competition.

(5)       At the Council meeting of 22
June 2012, it was ascertained that there was no unanimous support for a common
system of financial transaction tax (FTT) as proposed by the Commission. The
European Council concluded on 29 June 2012 that the proposed Directive would
not be adopted by the Council within a reasonable period. At the Council
meeting of 10 July 2012, reference was made to persisting and essential
differences in opinion as regards the need to establish a common system of FTT
at the Union level and it was confirmed that the principle of harmonised taxation
on financial transactions will not receive unanimous support within the Council
in the foreseeable future.

(6)       In these circumstances, 10
Member States, namely Belgium, Germany, Greece, Spain, France, Italy, Austria,
Portugal, Slovenia and Slovakia, addressed requests to the Commission by letters
received between 28 September and 22 October 2012 indicating that they wished
to establish enhanced cooperation between themselves in the area of FTT. These
Member States requested that the scope and objectives of the enhanced
cooperation be based on the proposal for a Directive submitted by the Commission
on 28 September 2011. Reference was also made in particular to the need to
avoid evasive actions, distortions and transfers to other jurisdictions.

(7)       The enhanced cooperation should
provide the necessary legal framework for the establishment of a common system
of FTT in the participating Member States and ensure that the basic features of
the tax are harmonised. To the extent possible, incentives for tax arbitrage
and allocation distortions between financial markets, as well as possibilities
for double or non taxation, as well as evasive actions, should thereby be
avoided.

(8)       The conditions laid down
in Article 20 TEU and Articles 326 and 329 TFEU are fulfilled.

(9)       It was recorded at the
Council meeting on 29 June 2012 and confirmed on 10 July 2012 that the
objective to adopt a common system of financial transaction tax cannot be
attained within a reasonable period by the Union as a whole. Consequently, the requirement
set out in Article 20(2) TEU that enhanced cooperation may be adopted only as a
last resort is fulfilled.

(10)     The substantive area within
which enhanced cooperation would take place, the establishment of a common
system of FTT within the Union, is an area covered by Article 113 TFEU and
therefore by the Treaties.

(11)     Enhanced cooperation in the
area of the establishment of a common system of FTT aims at ensuring the proper
functioning of the internal market. At the scale of this cooperation, it avoids
the coexistence of differing national regimes and thus an undue fragmentation
of the market, as well as ensuing problems in form of distortions of
competition, deflections of trade, both between products, between actors and
geographical areas and incentives for operators to avoid taxation through
operations with little economic value. Such issues are of particular relevance
in the area concerned, which is marked by highly mobile tax bases. Thus, it
furthers the objectives of the Union, protects its interests and reinforces its
integration process in accordance with Article 20(1) TEU.

(12)     The establishment of a
common harmonised system of FTT is not included in the
list of areas of exclusive competence of the Union set out in Article 3(1)
TFEU. Since it serves the functioning of the internal
market, in accordance with Article 113 TFEU, it falls under the shared
competences of the Union within the meaning of Article 4 TFEU and thus within the Union's non-exclusive competence.

(13)     Enhanced
cooperation in the area concerned complies with the Treaties and Union law, in
accordance with Article 326(1) TFEU. In line with Article 326(2) TFUE, it will not
undermine the internal market or economic, social and territorial cohesion, nor
constitute a barrier to or discrimination in trade between Member States or distort
competition between them.

(14)     Enhanced
cooperation in the area concerned respects the competences, rights and
obligations of non-participating Member States, in accordance with Article 327 TFEU.
Such system would not affect the possibility for non-participating Member
States to keep or introduce an FTT on the basis of non-harmonised national
rules. The common system of FTT would attribute taxing rights to the
participating Member States only on the basis of appropriate connecting
factors.

(15)     Subject to compliance with
any conditions of participation laid down in this Decision, enhanced
cooperation in the area referred to therein is open at any time to all Member
States willing to comply with the acts already adopted within this framework in
accordance with Article 328 TFEU,

HAS ADOPTED THIS DECISION:

Article 1

Belgium, Germany, Greece, Spain, France, Italy,
Austria, Portugal, Slovenia and Slovakia are hereby
authorised to establish enhanced cooperation between themselves in the area of
the establishment of a common system of financial transaction tax, by applying
the relevant provisions of the Treaties.

Article 2

This Decision shall enter into force on the
day of its adoption.

Done at Brussels,

For
the Council

The
President

[1]               COM(2011) 594.

[2]               Council Directive 2008/7/EC of 12 February 2008
concerning indirect taxes on the raising of capital.

[3]               Financial institutions, either directly or
indirectly, largely benefited from the rescue and guarantee operations
(pre-)financed by the European taxpayer in the course of 2008 to 2012. These
operations, together with the faltering of economic activity caused by the
spread of uncertainty about the stability of the overall economic and financial
system have triggered deterioration in the public finance balances across
Europe. Also, most financial and insurance services are exempted from VAT.

[4]               P7_TA-(2012)0217.

[5]               ECO/321 – CESE 818/2012 (OJ C 181, 21.06.2012, p.
55).

[6]               CDR 332/2011 (OJ C 113, 18.04.2012, p. 7).

[7]               FTT was first on the agenda of the Council on
Economic and Financial Affairs on 8 November 2011 and then at three subsequent
meetings in March, June and July 2012. From December 2011 to June 2012 seven
Council Working Party meetings on Tax Questions – Indirect taxation were
devoted to the subject.

[8]               Council Directive 2008/7/EC concerning indirect taxes
on the raising of capital, OJ L 46, 21.2.2008, p. 11.

[9]               See Judgment of the Court of Justice of 1 October
2009, Case C-569/07, points 32-35, citing case C-415/02 (OJ C 282, 21.11.2009,
p. 6).

[10]             See Section 4.3 above.

[11]             OJ C , , p. .

[12]             COM (2011) 594 final of 28 September 2011.