# Official Journal C 255/2007

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 255 |
| | |
| English edition | Information and Notices | Volume 5027 October 2007 |

ISSN 1725-2423

Official Journal

of the European Union

C 255

English edition

Information and Notices

Volume 5027 October 2007

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| Notice No | Contents | page |
| --- | --- | --- |
| | I   Resolutions, recommendations and opinions |
| | OPINIONS |
| | European Data Protection Supervisor |
| 2007/C 255/01 | Opinion of the European Data Protection Supervisor on the Communication from the Commission to the European Parliament and the Council on the follow-up of the Work Programme for better implementation of the Data Protection Directive | 1 |
| 2007/C 255/02 | Opinion of the European Data Protection Supervisor on the Proposal for a Council Decision establishing the European Police Office (Europol) — COM(2006) 817 final | 13 |

Notice No

Contents

page

I   Resolutions, recommendations and opinions

OPINIONS

European Data Protection Supervisor

2007/C 255/01

Opinion of the European Data Protection Supervisor on the Communication from the Commission to the European Parliament and the Council on the follow-up of the Work Programme for better implementation of the Data Protection Directive

1

2007/C 255/02

Opinion of the European Data Protection Supervisor on the Proposal for a Council Decision establishing the European Police Office (Europol) — COM(2006) 817 final

13

| | II   Information |
| --- | --- |
| | INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Commission |
| 2007/C 255/03 | Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty — Cases where the Commission raises no objections (
  1
  ) | 22 |
| 2007/C 255/04 | Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty — Cases where the Commission raises no objections | 24 |
| 2007/C 255/05 | Non-opposition to a notified concentration (Case COMP/M.4889 — Barclays Industrial Investments/Gemeaz/Scapa) (
  1
  ) | 31 |
| 2007/C 255/06 | Non-opposition to a notified concentration (Case COMP/M.4885 — Ineos/Nova/JV) (
  1
  ) | 31 |
| 2007/C 255/07 | Non-opposition to a notified concentration (Case COMP/M.4836 — CVC/Univar) (
  1
  ) | 32 |
| 2007/C 255/08 | Non-opposition to a notified concentration (Case COMP/M.4822 — Advent International/Takko Holding) (
  1
  ) | 32 |

II   Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

2007/C 255/03

Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty — Cases where the Commission raises no objections (
  1
  )

1

22

2007/C 255/04

Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty — Cases where the Commission raises no objections

24

2007/C 255/05

Non-opposition to a notified concentration (Case COMP/M.4889 — Barclays Industrial Investments/Gemeaz/Scapa) (
  1
  )

1

31

2007/C 255/06

Non-opposition to a notified concentration (Case COMP/M.4885 — Ineos/Nova/JV) (
  1
  )

1

31

2007/C 255/07

Non-opposition to a notified concentration (Case COMP/M.4836 — CVC/Univar) (
  1
  )

1

32

2007/C 255/08

Non-opposition to a notified concentration (Case COMP/M.4822 — Advent International/Takko Holding) (
  1
  )

1

32

| | IV   Notices |
| --- | --- |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Commission |
| 2007/C 255/09 | Euro exchange rates | 33 |
| 2007/C 255/10 | Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 415th meeting on 11 September 2006 concerning a draft decision relating to Case COMP/C.38.121 — Fittings | 34 |
| 2007/C 255/11 | Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 416th meeting on 18 September 2006 concerning a draft decision relating to Case COMP/F/C.38.121 — Fittings | 34 |
| 2007/C 255/12 | View of the representatives of the EFTA States concerning a preliminary draft decision relating to Case COMP/C.38.121 — Fittings (Meeting on 11 September 2006 of the EC Advisory Committee on restrictive practices and dominant positions) | 35 |
| 2007/C 255/13 | Final Report of the Hearing Officer on the procedure in the Case COMP/38.121 — Fittings (Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21) | 36 |

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

2007/C 255/09

Euro exchange rates

33

2007/C 255/10

Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 415th meeting on 11 September 2006 concerning a draft decision relating to Case COMP/C.38.121 — Fittings

34

2007/C 255/11

Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 416th meeting on 18 September 2006 concerning a draft decision relating to Case COMP/F/C.38.121 — Fittings

34

2007/C 255/12

View of the representatives of the EFTA States concerning a preliminary draft decision relating to Case COMP/C.38.121 — Fittings (Meeting on 11 September 2006 of the EC Advisory Committee on restrictive practices and dominant positions)

35

2007/C 255/13

Final Report of the Hearing Officer on the procedure in the Case COMP/38.121 — Fittings (Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

36

| | V   Announcements |
| --- | --- |
| | ADMINISTRATIVE PROCEDURES |
| | Commission |
| 2007/C 255/14 | F-Castres: Operation of scheduled air services — Operation of scheduled air services between Castres (Mazamet) and Paris (Orly) — Notice of a competitive public tender issued by France pursuant to Article 4(1)(d) of Council Regulation (EEC) No 2408/92 for the delegation of a public service | 38 |
| 2007/C 255/15 | F-Castres: Operation of scheduled air services — Operation of scheduled air services between Castres (Mazamet) and Lyons (Saint-Exupéry), and between Rodez (Marcillac) and Lyons (Saint-Exupéry) — Notice of a competitive public tender issued by France pursuant to Article 4(1)(d) of Council Regulation (EEC) No 2408/92 for the delegation of a public service | 42 |
| | PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMPETITION POLICY |
| | Commission |
| 2007/C 255/16 | Prior notification of a concentration (Case COMP/M.4911 — Goldman Sachs/LOMO) — Candidate case for simplified procedure (
  1
  ) | 45 |
| 2007/C 255/17 | Prior notification of a concentration (Case COMP/M.4944 — SAP/Business Objects) (
  1
  ) | 46 |
| 2007/C 255/18 | Prior notification of a concentration (Case COMP/M.4899 — SCB/Süd-Chemie) — Candidate case for simplified procedure (
  1
  ) | 47 |
| 2007/C 255/19 | Proposal for a Commission Regulation (EC) No .../... of [...] amending Regulation (EC) No 773/2004, as regards the conduct of settlement procedures in cartel cases (
  1
  ) | 48 |
| 2007/C 255/20 | Draft Commission Notice of [...] on the conduct of settlement proceedings in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (
  1
  ) | 51 |
| | OTHER ACTS |
| | Commission |
| 2007/C 255/21 | Publication of an application pursuant to Article 6(2) of Council Regulation (EC) No 510/2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs | 58 |

V   Announcements

ADMINISTRATIVE PROCEDURES

Commission

2007/C 255/14

F-Castres: Operation of scheduled air services — Operation of scheduled air services between Castres (Mazamet) and Paris (Orly) — Notice of a competitive public tender issued by France pursuant to Article 4(1)(d) of Council Regulation (EEC) No 2408/92 for the delegation of a public service

38

2007/C 255/15

F-Castres: Operation of scheduled air services — Operation of scheduled air services between Castres (Mazamet) and Lyons (Saint-Exupéry), and between Rodez (Marcillac) and Lyons (Saint-Exupéry) — Notice of a competitive public tender issued by France pursuant to Article 4(1)(d) of Council Regulation (EEC) No 2408/92 for the delegation of a public service

42

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMPETITION POLICY

Commission

2007/C 255/16

Prior notification of a concentration (Case COMP/M.4911 — Goldman Sachs/LOMO) — Candidate case for simplified procedure (
  1
  )

1

45

2007/C 255/17

Prior notification of a concentration (Case COMP/M.4944 — SAP/Business Objects) (
  1
  )

1

46

2007/C 255/18

Prior notification of a concentration (Case COMP/M.4899 — SCB/Süd-Chemie) — Candidate case for simplified procedure (
  1
  )

1

47

2007/C 255/19

Proposal for a Commission Regulation (EC) No .../... of [...] amending Regulation (EC) No 773/2004, as regards the conduct of settlement procedures in cartel cases (
  1
  )

1

48

2007/C 255/20

Draft Commission Notice of [...] on the conduct of settlement proceedings in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (
  1
  )

1

51

OTHER ACTS

Commission

2007/C 255/21

Publication of an application pursuant to Article 6(2) of Council Regulation (EC) No 510/2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs

58

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| | (1)   Text with EEA relevance |

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(1)   Text with EEA relevance

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EN

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I Resolutions, recommendations and opinions

OPINIONS

European Data Protection Supervisor

| 27.10.2007 | EN | Official Journal of the European Union | C 255/1 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/1

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Opinion of the European Data Protection Supervisor on the Communication from the Commission to the European Parliament and the Council on the follow-up of the Work Programme for better implementation of the Data Protection Directive

(2007/C 255/01)

THE EUROPEAN DATA PROTECTION SUPERVISOR,

Having regard to the Treaty establishing the European Community, and in particular its Article 286,

Having regard to the Charter of Fundamental Rights of the European Union, and in particular its Article 8,

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),

Having regard to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (2), and in particular its Article 41,

HAS ADOPTED THE FOLLOWING OPINION:

I.   INTRODUCTION

| 1. | On 7 March 2007, the Communication from the Commission to the European Parliament and the Council on the follow-up of the Work Programme for better implementation of the Data Protection Directive (3) was sent by the Commission to the EDPS. In accordance with Article 41 of Regulation (EC) No 45/2001, the EDPS presents this opinion. |
| --- | --- |

1.

On 7 March 2007, the Communication from the Commission to the European Parliament and the Council on the follow-up of the Work Programme for better implementation of the Data Protection Directive (3) was sent by the Commission to the EDPS. In accordance with Article 41 of Regulation (EC) No 45/2001, the EDPS presents this opinion.

| 2. | The Communication reiterates the importance of Directive 95/46/EC (4) as a milestone in the protection of personal data and discusses the Directive and its implementation in three chapters: the past, the present and the future. The central conclusion of the Communication is that the Directive should not be amended. The implementation of the Directive should be further improved by means of other policy instruments, most of them with a non binding nature. |
| --- | --- |

2.

The Communication reiterates the importance of Directive 95/46/EC (4) as a milestone in the protection of personal data and discusses the Directive and its implementation in three chapters: the past, the present and the future. The central conclusion of the Communication is that the Directive should not be amended. The implementation of the Directive should be further improved by means of other policy instruments, most of them with a non binding nature.

| 3. | This opinion of the EDPS follows the structure of the communication. More importantly, the EDPS shares the central conclusion of the Commission that the Directive should not be amended. |
| --- | --- |

3.

This opinion of the EDPS follows the structure of the communication. More importantly, the EDPS shares the central conclusion of the Commission that the Directive should not be amended.

| 4. | However, the EDPS takes this position also for pragmatic reasons. The points of departure for the EDPS are as follows:






  — | in the short term, energy is best spent on improvements in the implementation of the Directive. As the Communication shows, considerable improvements in the implementation are still possible, |
| --- | --- | --- |

4.

However, the EDPS takes this position also for pragmatic reasons. The points of departure for the EDPS are as follows:

—

in the short term, energy is best spent on improvements in the implementation of the Directive. As the Communication shows, considerable improvements in the implementation are still possible,

| — | in the longer term, changes of the Directive seem unavoidable, while keeping its core principles, |
| --- | --- |

—

in the longer term, changes of the Directive seem unavoidable, while keeping its core principles,

| — | a clear date for a review to prepare proposals leading to such changes should already be set now. Such a date would give a clear incentive to start the thinking about future changes already now. |
| --- | --- |

—

a clear date for a review to prepare proposals leading to such changes should already be set now. Such a date would give a clear incentive to start the thinking about future changes already now.

| 5. | These points of departure are essential since one has to keep in mind that the Directive operates in a dynamic context. In the first place, the European Union is changing: the free flow of information between the Member States — and between the Member States and third countries — has become more important and will become an even more important reality. In the second place, society is changing. The information society is evolving and has more and more characteristics of a surveillance society (5). This implies an increasing need for effective protection of personal data to deal with these new realities in a fully satisfactory way. |
| --- | --- |

5.

These points of departure are essential since one has to keep in mind that the Directive operates in a dynamic context. In the first place, the European Union is changing: the free flow of information between the Member States — and between the Member States and third countries — has become more important and will become an even more important reality. In the second place, society is changing. The information society is evolving and has more and more characteristics of a surveillance society (5). This implies an increasing need for effective protection of personal data to deal with these new realities in a fully satisfactory way.

II.   THE PERSPECTIVES OF THE OPINION

| 6. | In his assessment of the communication, the EDPS will address in particular the following perspectives that are relevant in respect of these changes:






  — | improvement of the implementation of the Directive itself: how to make data protection more effective? A mix of policy instruments is needed for such an improvement varying from a better communication with society to a stricter enforcement of data protection law, |
| --- | --- | --- |

6.

In his assessment of the communication, the EDPS will address in particular the following perspectives that are relevant in respect of these changes:

—

improvement of the implementation of the Directive itself: how to make data protection more effective? A mix of policy instruments is needed for such an improvement varying from a better communication with society to a stricter enforcement of data protection law,

| — | the interaction with technology: new technological developments such as developments in data sharing, RFID systems, biometrics and identity managements systems have a clear impact on the requirements for an effective legal framework for data protection. Also, the need for effective protection of the personal data of an individual can impose limitations on the use of these new technologies. Interaction is thus two-sided: the technology influences the legislation and the legislation influences the technology, |
| --- | --- |

—

the interaction with technology: new technological developments such as developments in data sharing, RFID systems, biometrics and identity managements systems have a clear impact on the requirements for an effective legal framework for data protection. Also, the need for effective protection of the personal data of an individual can impose limitations on the use of these new technologies. Interaction is thus two-sided: the technology influences the legislation and the legislation influences the technology,

| — | global privacy and jurisdiction issues, dealing with the external borders of the European Union. Whereas the jurisdiction of the Community legislator is limited to the territory of the European Union, the external borders become less relevant for data flows. The economy depends more and more on global networks. Companies based in the European Union increasingly outsource activities, including the processing of personal data to third countries. Moreover, recent cases like SWIFT and PNR confirm that other jurisdictions show interest in ‘EU-originating data’. In general, the physical place of a processing operation is less relevant, |
| --- | --- |

—

global privacy and jurisdiction issues, dealing with the external borders of the European Union. Whereas the jurisdiction of the Community legislator is limited to the territory of the European Union, the external borders become less relevant for data flows. The economy depends more and more on global networks. Companies based in the European Union increasingly outsource activities, including the processing of personal data to third countries. Moreover, recent cases like SWIFT and PNR confirm that other jurisdictions show interest in ‘EU-originating data’. In general, the physical place of a processing operation is less relevant,

| — | data protection and law enforcement: recent threats to society, whether or not related to terrorism, have led to (demands for) more possibilities for law enforcement authorities to collect, store and exchange personal data. In some cases, private parties are actively involved, as recent cases show. The dividing line with the third pillar of the EU-Treaty (in which area the Directive does not apply) becomes on the one hand more important and on the other hand more fluid. There is even a risk that in certain cases, personal data will not be protected either by first pillar or by third pillar instruments (the ‘legal loophole’), |
| --- | --- |

—

data protection and law enforcement: recent threats to society, whether or not related to terrorism, have led to (demands for) more possibilities for law enforcement authorities to collect, store and exchange personal data. In some cases, private parties are actively involved, as recent cases show. The dividing line with the third pillar of the EU-Treaty (in which area the Directive does not apply) becomes on the one hand more important and on the other hand more fluid. There is even a risk that in certain cases, personal data will not be protected either by first pillar or by third pillar instruments (the ‘legal loophole’),

| — | the consequences, in any event for data protection and law enforcement, of the entry into force of the Reform Treaty, now foreseen for 2009. |
| --- | --- |

—

the consequences, in any event for data protection and law enforcement, of the entry into force of the Reform Treaty, now foreseen for 2009.

III.   THE PAST AND THE PRESENT

| 7. | The First report on the implementation of the Data Protection Directive of 15 May 2003 contained a Work Programme for better implementation of the data protection Directive, with a list of 10 initiatives to be carried out in 2003 and 2004. The Communication describes how each of these actions has been implemented. |
| --- | --- |

7.

The First report on the implementation of the Data Protection Directive of 15 May 2003 contained a Work Programme for better implementation of the data protection Directive, with a list of 10 initiatives to be carried out in 2003 and 2004. The Communication describes how each of these actions has been implemented.

| 8. | On the basis of the analysis of the work conducted under the Work Programme, the Communication draws a positive assessment of the improvements achieved in the implementation of the Directive. The assessment of the Commission, as summarized in the headings of Chapter II (‘the present’) of the Communication, basically states that: implementation has improved, even though some Member States have not yet implemented properly; some divergences still exist, but they mostly fall within the margin of manoeuvre provided for by the Directive and in any case they do not pose a real problem to the internal market. Legal solutions laid down in the Directive have proved to be substantially appropriate to guarantee the fundamental right to data protection, while coping with evolution in technology and requirements imposed by public interests. |
| --- | --- |

8.

On the basis of the analysis of the work conducted under the Work Programme, the Communication draws a positive assessment of the improvements achieved in the implementation of the Directive. The assessment of the Commission, as summarized in the headings of Chapter II (‘the present’) of the Communication, basically states that: implementation has improved, even though some Member States have not yet implemented properly; some divergences still exist, but they mostly fall within the margin of manoeuvre provided for by the Directive and in any case they do not pose a real problem to the internal market. Legal solutions laid down in the Directive have proved to be substantially appropriate to guarantee the fundamental right to data protection, while coping with evolution in technology and requirements imposed by public interests.

| 9. | The EDPS shares the main lines of this positive assessment. In particular, the EDPS recognizes the considerable work conducted in the field of transborder data flows: findings of adequate protection in respect of third countries, new standard contractual clauses, the adoption of binding corporate rules, the reflection on a more uniform interpretation of Article 26(1) of the Directive and the improvement in notifications under Article 26(2) all go in the direction of facilitating international transfers of personal data. However, the case law of the Court of Justice (6) has shown that work still has to be done in this crucial area, in order to cope with developments in both technological and law enforcement fields. |
| --- | --- |

9.

The EDPS shares the main lines of this positive assessment. In particular, the EDPS recognizes the considerable work conducted in the field of transborder data flows: findings of adequate protection in respect of third countries, new standard contractual clauses, the adoption of binding corporate rules, the reflection on a more uniform interpretation of Article 26(1) of the Directive and the improvement in notifications under Article 26(2) all go in the direction of facilitating international transfers of personal data. However, the case law of the Court of Justice (6) has shown that work still has to be done in this crucial area, in order to cope with developments in both technological and law enforcement fields.

| 10. | The Communication also shows that enforcement and awareness raising are key issues in promoting a better implementation, and that they could be further exploited. Furthermore, exchange of best practices and harmonization in the area of notifications and information provisions represent successful precedents for cutting red tape and reducing costs for firms. |
| --- | --- |

10.

The Communication also shows that enforcement and awareness raising are key issues in promoting a better implementation, and that they could be further exploited. Furthermore, exchange of best practices and harmonization in the area of notifications and information provisions represent successful precedents for cutting red tape and reducing costs for firms.

| 11. | In addition, the analysis of the past confirms that improvements cannot be achieved without the involvement of a broad range of stakeholders. The Commission, data protection authorities and the Member States are central actors in most of the actions conducted. However, the role of private parties has an increasing importance, especially when it comes to the promotion of self-regulation and European Codes of Conducts, or to the development of Privacy Enhancing Technologies. |
| --- | --- |

11.

In addition, the analysis of the past confirms that improvements cannot be achieved without the involvement of a broad range of stakeholders. The Commission, data protection authorities and the Member States are central actors in most of the actions conducted. However, the role of private parties has an increasing importance, especially when it comes to the promotion of self-regulation and European Codes of Conducts, or to the development of Privacy Enhancing Technologies.

IV.   THE FUTURE

A.   The conclusion: no change to the Directive now.

| 12. | There are several reasons for supporting the conclusion of the Commission, that, under the present circumstances and in the short term, no proposal should be envisaged for modification of the Directive. |
| --- | --- |

12.

There are several reasons for supporting the conclusion of the Commission, that, under the present circumstances and in the short term, no proposal should be envisaged for modification of the Directive.

| 13. | The Commission basically gives two reasons in support of the conclusion. Firstly, the potential of the Directive has not been used to its full extent. Considerable improvements in the implementation of the Directive in the jurisdictions of the Member States are still possible. Secondly, it states that although the Directive leaves a margin of manoeuvre for the Member States, there is no evidence that divergences within this margin pose real problems to the internal market. |
| --- | --- |

13.

The Commission basically gives two reasons in support of the conclusion. Firstly, the potential of the Directive has not been used to its full extent. Considerable improvements in the implementation of the Directive in the jurisdictions of the Member States are still possible. Secondly, it states that although the Directive leaves a margin of manoeuvre for the Member States, there is no evidence that divergences within this margin pose real problems to the internal market.

| 14. | On the basis of these two reasons, the Commission formulates its conclusion in the following way. It explains what the Directive should do, with emphasis on ensuring trust, and then states that the Directive sets a benchmark, is technologically neutral and continues to provide solid and appropriate responses (7). |
| --- | --- |

14.

On the basis of these two reasons, the Commission formulates its conclusion in the following way. It explains what the Directive should do, with emphasis on ensuring trust, and then states that the Directive sets a benchmark, is technologically neutral and continues to provide solid and appropriate responses (7).

| 15. | The EDPS welcomes the way in which this conclusion is worded, but is of the opinion that this conclusion could be further reinforced by building it on two additional grounds:






  — | firstly, the nature of the Directive, |
| --- | --- | --- |

15.

The EDPS welcomes the way in which this conclusion is worded, but is of the opinion that this conclusion could be further reinforced by building it on two additional grounds:

—

firstly, the nature of the Directive,

| — | secondly, the legislative policy of the Union. |
| --- | --- |

—

secondly, the legislative policy of the Union.

The nature of the Directive

| 16. | The fundamental right of natural persons to the protection of their personal data is recognised in Article 8 of the Charter of the Fundamental Rights of the Union and inter alia laid down in the Council of Europe Convention 108 of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data. In essence, the Directive is a framework containing the main elements of the protection of this fundamental right, by giving substance and amplifying the rights and freedoms included in the Convention (8). |
| --- | --- |

16.

The fundamental right of natural persons to the protection of their personal data is recognised in Article 8 of the Charter of the Fundamental Rights of the Union and inter alia laid down in the Council of Europe Convention 108 of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data. In essence, the Directive is a framework containing the main elements of the protection of this fundamental right, by giving substance and amplifying the rights and freedoms included in the Convention (8).

| 17. | A fundamental right aims to protect a citizen under all circumstances in a democratic society. The main elements of such a fundamental right should not easily be changed because of developments in society or of the political preferences of ruling governments. For instance, threats to society by terrorist organisations may lead to a different outcome in specific cases because more important interferences might be needed in a person's fundamental right, but may never affect the essential elements of the right itself nor deprive or unduly restrict a private person in the exercise of the right. |
| --- | --- |

17.

A fundamental right aims to protect a citizen under all circumstances in a democratic society. The main elements of such a fundamental right should not easily be changed because of developments in society or of the political preferences of ruling governments. For instance, threats to society by terrorist organisations may lead to a different outcome in specific cases because more important interferences might be needed in a person's fundamental right, but may never affect the essential elements of the right itself nor deprive or unduly restrict a private person in the exercise of the right.

| 18. | The second characteristic of the Directive is that it envisages the promotion of the free flow of information in the internal market. Also this second objective can be considered as fundamental, within an ever more developing internal market without internal borders. Harmonisation of essential provisions of national law is one of the main instruments to ensure the establishment and functioning of this internal market. It gives substance to the mutual trust between the Member States in each others national legal systems. Also for these reasons changes should be duly considered. Changes could affect mutual trust. |
| --- | --- |

18.

The second characteristic of the Directive is that it envisages the promotion of the free flow of information in the internal market. Also this second objective can be considered as fundamental, within an ever more developing internal market without internal borders. Harmonisation of essential provisions of national law is one of the main instruments to ensure the establishment and functioning of this internal market. It gives substance to the mutual trust between the Member States in each others national legal systems. Also for these reasons changes should be duly considered. Changes could affect mutual trust.

| 19. | A third characteristic of the Directive is that it must be seen as a general framework upon which specific legal instruments build. These specific instruments include implementing measures of the general framework as well as specific frameworks for specific sectors. The Directive on privacy and electronic communications, 2002/58/EC (9), is such a specific framework. Where possible, changing developments in society should lead to changes of implementing measures or specific legal frameworks, not of the general framework on which they build. |
| --- | --- |

19.

A third characteristic of the Directive is that it must be seen as a general framework upon which specific legal instruments build. These specific instruments include implementing measures of the general framework as well as specific frameworks for specific sectors. The Directive on privacy and electronic communications, 2002/58/EC (9), is such a specific framework. Where possible, changing developments in society should lead to changes of implementing measures or specific legal frameworks, not of the general framework on which they build.

The legislative policy of the Union

| 20. | According to the EDPS, the conclusion not to change the Directive now is also the logical consequence of general principles of good administration and legislative policy. Legislative proposals — regardless whether they imply new areas of Community action or amend existing legislative arrangements — should only be submitted if the necessity and proportionality are sufficiently demonstrated. No legislative proposal should be submitted if the same result could be achieved by using other, less far-reaching tools. |
| --- | --- |

20.

According to the EDPS, the conclusion not to change the Directive now is also the logical consequence of general principles of good administration and legislative policy. Legislative proposals — regardless whether they imply new areas of Community action or amend existing legislative arrangements — should only be submitted if the necessity and proportionality are sufficiently demonstrated. No legislative proposal should be submitted if the same result could be achieved by using other, less far-reaching tools.

| 21. | Under the present circumstances, the necessity and proportionality of a modification of the Directive have not been demonstrated. The EDPS recalls that the Directive provides for a general framework for data protection under Community law. It must ensure on the one hand protection of the rights and freedoms of individuals, notably the right to privacy, with regard to the processing of personal data and on the other hand the free flow of personal data within the internal market. |
| --- | --- |

21.

Under the present circumstances, the necessity and proportionality of a modification of the Directive have not been demonstrated. The EDPS recalls that the Directive provides for a general framework for data protection under Community law. It must ensure on the one hand protection of the rights and freedoms of individuals, notably the right to privacy, with regard to the processing of personal data and on the other hand the free flow of personal data within the internal market.

| 22. | Such a general framework should not be amended until it has been fully implemented in the Member States, unless there are clear indications that the objectives of the Directive could not be met under the present framework. In the view of the EDPS, the Commission has — under the present circumstances — adequately substantiated that the potential of the Directive has not been used to its full extent (see Chapter III of this opinion). Equally, there is no evidence that the objectives could not be met under the present framework. |
| --- | --- |

22.

Such a general framework should not be amended until it has been fully implemented in the Member States, unless there are clear indications that the objectives of the Directive could not be met under the present framework. In the view of the EDPS, the Commission has — under the present circumstances — adequately substantiated that the potential of the Directive has not been used to its full extent (see Chapter III of this opinion). Equally, there is no evidence that the objectives could not be met under the present framework.

B.   In the longer term changes seem unavoidable

| 23. | It must be ensured also in future that the principles of data protection will offer effective protection to natural persons, keeping in mind the dynamic context in which the Directive operates (see point 5 of this opinion) and the perspectives of point 6 of this opinion: improvement of the implementation, interaction with technology, global privacy and jurisdiction, data protection and law enforcement, and a Reform Treaty. This need for full application of the data protection principles sets the standards for future changes of the Directive. The EDPS recalls once more that in the longer term changes of the Directive seem unavoidable. |
| --- | --- |

23.

It must be ensured also in future that the principles of data protection will offer effective protection to natural persons, keeping in mind the dynamic context in which the Directive operates (see point 5 of this opinion) and the perspectives of point 6 of this opinion: improvement of the implementation, interaction with technology, global privacy and jurisdiction, data protection and law enforcement, and a Reform Treaty. This need for full application of the data protection principles sets the standards for future changes of the Directive. The EDPS recalls once more that in the longer term changes of the Directive seem unavoidable.

| 24. | As far as the substance of any future measures is concerned, the EDPS provides already at this stage some elements which he considers essential in any future system for data protection within the European Union. These elements include:






  — | there is no need for new principles, but there is a clear need for other administrative arrangements, which are on the one hand effective and appropriate to a networked society and on the other hand minimise administrative costs, |
| --- | --- | --- |

24.

As far as the substance of any future measures is concerned, the EDPS provides already at this stage some elements which he considers essential in any future system for data protection within the European Union. These elements include:

—

there is no need for new principles, but there is a clear need for other administrative arrangements, which are on the one hand effective and appropriate to a networked society and on the other hand minimise administrative costs,

| — | the wide scope of data protection law should not change. It should apply to all use of personal data and should not be limited to sensitive data or otherwise be limited to qualified interests or special risks. In other words, the EDPS rejects a ‘de minimis’ approach as far as the scope of data protection is concerned. This ensures that data subjects will be able to exercise their rights in all situations, |
| --- | --- |

—

the wide scope of data protection law should not change. It should apply to all use of personal data and should not be limited to sensitive data or otherwise be limited to qualified interests or special risks. In other words, the EDPS rejects a ‘de minimis’ approach as far as the scope of data protection is concerned. This ensures that data subjects will be able to exercise their rights in all situations,

| — | data protection law should continue to cover a wide variety of situations, but at the same time allow a balanced approach in concrete cases, taking into account other justified (public or private) interests, as well as the need for a minimum of bureaucratic consequences. This system should also allow the possibility for data protection authorities to set priorities and concentrate on areas or issues of special importance or posing specific risks, |
| --- | --- |

—

data protection law should continue to cover a wide variety of situations, but at the same time allow a balanced approach in concrete cases, taking into account other justified (public or private) interests, as well as the need for a minimum of bureaucratic consequences. This system should also allow the possibility for data protection authorities to set priorities and concentrate on areas or issues of special importance or posing specific risks,

| — | the system should fully apply to the use of personal data for law enforcement purposes, although appropriate additional measures may be necessary to deal with special problems in this area, |
| --- | --- |

—

the system should fully apply to the use of personal data for law enforcement purposes, although appropriate additional measures may be necessary to deal with special problems in this area,

| — | appropriate arrangements should be made for data flow with third countries, as far as feasible based on global standards for data protection. |
| --- | --- |

—

appropriate arrangements should be made for data flow with third countries, as far as feasible based on global standards for data protection.

| 25. | The Communication mentions — in relation to the challenges of new technologies — the ongoing review of Directive 2002/58/EC and the possible need for more specific rules to address data protection issues raised by new technologies such as the Internet and RFID (10). The EDPS welcomes this review and further actions, although according to the EDPS they should not solely be related to technological developments, but should take into account the dynamic context in its entirety and in a long term perspective also involve the Directive 95/46/EC. Moreover, more focus is needed in this context. Unfortunately, the Communication has an open end:






  — | there is no timeline for the realisation of the different activities mentioned in Chapter III of the Communication, |
| --- | --- | --- |

25.

The Communication mentions — in relation to the challenges of new technologies — the ongoing review of Directive 2002/58/EC and the possible need for more specific rules to address data protection issues raised by new technologies such as the Internet and RFID (10). The EDPS welcomes this review and further actions, although according to the EDPS they should not solely be related to technological developments, but should take into account the dynamic context in its entirety and in a long term perspective also involve the Directive 95/46/EC. Moreover, more focus is needed in this context. Unfortunately, the Communication has an open end:

—

there is no timeline for the realisation of the different activities mentioned in Chapter III of the Communication,

| — | there is no deadline for a subsequent report on the application of the Directive. Article 33 of the Directive requires that the Commission report ‘on regular intervals’ but does not specify these intervals either, |
| --- | --- |

—

there is no deadline for a subsequent report on the application of the Directive. Article 33 of the Directive requires that the Commission report ‘on regular intervals’ but does not specify these intervals either,

| — | there are no terms of reference: the Communication does not allow for the realisation of the activities foreseen to be measured. It simply refers to the Work Programme presented in 2003, |
| --- | --- |

—

there are no terms of reference: the Communication does not allow for the realisation of the activities foreseen to be measured. It simply refers to the Work Programme presented in 2003,

| — | there are no indications on the way to proceed in the longer term. |
| --- | --- |

—

there are no indications on the way to proceed in the longer term.

The EDPS suggests that the Commission specifies these elements.

V.   PERSPECTIVES FOR FUTURE CHANGE

A.   Full implementation

| 26. | Any future change must be preceded by full implementation of the present provisions of the Directive. Full implementation starts with compliance with the legal requirements of the Directive. The Communication mentions (11) that some Member States have failed to incorporate a number of important provisions of the Directive and points in this respect in particular at provisions for independence of supervisory authorities. It is the task of the Commission to monitor the compliance and where it considers this appropriate use its powers under Article 226 EC. |
| --- | --- |

26.

Any future change must be preceded by full implementation of the present provisions of the Directive. Full implementation starts with compliance with the legal requirements of the Directive. The Communication mentions (11) that some Member States have failed to incorporate a number of important provisions of the Directive and points in this respect in particular at provisions for independence of supervisory authorities. It is the task of the Commission to monitor the compliance and where it considers this appropriate use its powers under Article 226 EC.

| 27. | The Communication envisages an interpretative communication on some provisions, in particular those provisions that may lead to formal infringement procedures pursuant to Article 226 EC. |
| --- | --- |

27.

The Communication envisages an interpretative communication on some provisions, in particular those provisions that may lead to formal infringement procedures pursuant to Article 226 EC.

| 28. | In addition, the Directive introduces other mechanisms for the improvement of the implementation. In particular, the tasks of the Article 29 Working Party, listed in Article 30 of the Directive, are designed for this purpose. They are meant to stimulate the implementation in the Member States on a high and harmonised level of data protection beyond what is strictly needed to fulfil the obligations of the Directive. Whilst exercising this role, the Working Party has over the years produced a large number of opinions and other documents. |
| --- | --- |

28.

In addition, the Directive introduces other mechanisms for the improvement of the implementation. In particular, the tasks of the Article 29 Working Party, listed in Article 30 of the Directive, are designed for this purpose. They are meant to stimulate the implementation in the Member States on a high and harmonised level of data protection beyond what is strictly needed to fulfil the obligations of the Directive. Whilst exercising this role, the Working Party has over the years produced a large number of opinions and other documents.

| 29. | In the view of the EDPS, full implementation of the Directive includes these two elements:






  — | it should be ensured that the Member States fully comply with their obligations under European law. This means that the provisions of the Directive should be transposed into national law and also in practice the results to be achieved by the Directive should be reached, |
| --- | --- | --- |

29.

In the view of the EDPS, full implementation of the Directive includes these two elements:

—

it should be ensured that the Member States fully comply with their obligations under European law. This means that the provisions of the Directive should be transposed into national law and also in practice the results to be achieved by the Directive should be reached,

| — | other, non binding tools that could be instrumental to a high and harmonised level of data protection should be fully used. |
| --- | --- |

—

other, non binding tools that could be instrumental to a high and harmonised level of data protection should be fully used.

The EDPS emphasises that both elements should be clearly distinguished, because of the different legal consequences, as well as the related responsibilities. As a rule of thumb: the Commission should take full responsibility for the first element, whereas the Working Party should be the primary actor as far as the second element is concerned.

| 30. | Another, more precise distinction to be made relates to the tools available to achieve better implementation of the Directive. These include:






  — | implementing measures. Those measures — taken by the Commission through comitology procedure — are foreseen in Chapter IV, on the transfer of personal data to third countries (see Article 25(6) and 26(3)), |
| --- | --- | --- |

30.

Another, more precise distinction to be made relates to the tools available to achieve better implementation of the Directive. These include:

—

implementing measures. Those measures — taken by the Commission through comitology procedure — are foreseen in Chapter IV, on the transfer of personal data to third countries (see Article 25(6) and 26(3)),

| — | sectoral legislation, |
| --- | --- |

—

sectoral legislation,

| — | infringement procedures under 226 EC, |
| --- | --- |

—

infringement procedures under 226 EC,

| — | interpretative communications. Such communications could focus on provisions that may lead to infringement procedures and/or mainly intend to be used as guideline for data protection in practice (see also points 57-62) (12), |
| --- | --- |

—

interpretative communications. Such communications could focus on provisions that may lead to infringement procedures and/or mainly intend to be used as guideline for data protection in practice (see also points 57-62) (12),

| — | other communications. The Communication of the Commission to the Parliament and the Council on Privacy Enhancing Technologies can be seen as an example, |
| --- | --- |

—

other communications. The Communication of the Commission to the Parliament and the Council on Privacy Enhancing Technologies can be seen as an example,

| — | promotion of best practices. This tool can be used for a range of subjects, such as administrative simplification, audits, enforcement and sanctions, etc (see also points 63-67). |
| --- | --- |

—

promotion of best practices. This tool can be used for a range of subjects, such as administrative simplification, audits, enforcement and sanctions, etc (see also points 63-67).

| 31. | The EDPS suggests to the Commission that it clearly indicates how it will use these different tools when it elaborates its policies on the basis of the present Communication. The Commission should in that context also clearly distinguish its own responsibilities and the responsibilities of the Working Party. Apart from that, it goes without saying that a good cooperation between the Commission and the Working Party is under all circumstances a condition for success. |
| --- | --- |

31.

The EDPS suggests to the Commission that it clearly indicates how it will use these different tools when it elaborates its policies on the basis of the present Communication. The Commission should in that context also clearly distinguish its own responsibilities and the responsibilities of the Working Party. Apart from that, it goes without saying that a good cooperation between the Commission and the Working Party is under all circumstances a condition for success.

B.   Interaction with technology

| 32. | Point of departure is that the provisions of the Directive are formulated in a technologically neutral way. The Communication links the emphasis on technological neutrality to a number of technological developments, such as the Internet, access services provided in third countries, RFID and the combination of sound and image data with automatic recognition. It distinguishes two types of actions. Firstly, specific guidance as to the application of data protection principles in a changing technological environment with an important role of the Working Party and its Internet Task Force (13). Secondly, sector specific legislation could be proposed, by the Commission itself. |
| --- | --- |

32.

Point of departure is that the provisions of the Directive are formulated in a technologically neutral way. The Communication links the emphasis on technological neutrality to a number of technological developments, such as the Internet, access services provided in third countries, RFID and the combination of sound and image data with automatic recognition. It distinguishes two types of actions. Firstly, specific guidance as to the application of data protection principles in a changing technological environment with an important role of the Working Party and its Internet Task Force (13). Secondly, sector specific legislation could be proposed, by the Commission itself.

| 33. | The EDPS welcomes this approach as an important first step. In the longer term however, other and more fundamental steps might be needed. The occasion of this Communication could be used as the start of such a long term approach. The EDPS suggests starting, as a follow up of the present Communication, the discussion on this approach. As possible elements of such an approach, the following points can be mentioned. |
| --- | --- |

33.

The EDPS welcomes this approach as an important first step. In the longer term however, other and more fundamental steps might be needed. The occasion of this Communication could be used as the start of such a long term approach. The EDPS suggests starting, as a follow up of the present Communication, the discussion on this approach. As possible elements of such an approach, the following points can be mentioned.

| 34. | In the first place, interaction with technologies works in two ways. On the one hand, new developing technologies may call for modifications of the legal framework for data protection. On the other hand, the need for effective protection of the personal data of individuals may require new limitations or appropriate safeguards on the use of certain technologies, an even further reaching consequence. However, new technologies could also be used effectively and relied upon in a privacy enhancing way. |
| --- | --- |

34.

In the first place, interaction with technologies works in two ways. On the one hand, new developing technologies may call for modifications of the legal framework for data protection. On the other hand, the need for effective protection of the personal data of individuals may require new limitations or appropriate safeguards on the use of certain technologies, an even further reaching consequence. However, new technologies could also be used effectively and relied upon in a privacy enhancing way.

| 35. | In the second place, some specific limits may be needed if new technologies are used by governmental institutions in the exercise of their public tasks. The discussions on interoperability and access that are taking place in the area of freedom, security and justice relating to the implementation of the Hague Program, are a good example (14). |
| --- | --- |

35.

In the second place, some specific limits may be needed if new technologies are used by governmental institutions in the exercise of their public tasks. The discussions on interoperability and access that are taking place in the area of freedom, security and justice relating to the implementation of the Hague Program, are a good example (14).

| 36. | In the third place, there is a tendency towards a much wider use of biometric material, such as — but not only — DNA-material. The specific challenges of the use of personal data extracted from this material might have consequences for the laws on data protection. |
| --- | --- |

36.

In the third place, there is a tendency towards a much wider use of biometric material, such as — but not only — DNA-material. The specific challenges of the use of personal data extracted from this material might have consequences for the laws on data protection.

| 37. | In the fourth place, it has to be acknowledged that society itself is changing and acquires more and more elements of a surveillance society (15). A fundamental debate is needed on this development. In such a debate central questions would be whether this development is unavoidable, whether it is the task of the European legislator to interfere in this development and to impose limits on this development, whether and how the European legislator could take effective measures, etc. |
| --- | --- |

37.

In the fourth place, it has to be acknowledged that society itself is changing and acquires more and more elements of a surveillance society (15). A fundamental debate is needed on this development. In such a debate central questions would be whether this development is unavoidable, whether it is the task of the European legislator to interfere in this development and to impose limits on this development, whether and how the European legislator could take effective measures, etc.

C.   Global privacy and jurisdiction

| 38. | The perspective of global privacy and jurisdiction plays a limited role within the Communication. The only intention in this context is that the Commission will continue to monitor and contribute to international forums, to ensure coherence of Member States' commitments with their obligations under the Directive. Apart from that, the Communication enumerates a number of activities executed for the simplification of the requirements for international transfers (see Chapter III of this opinion). |
| --- | --- |

38.

The perspective of global privacy and jurisdiction plays a limited role within the Communication. The only intention in this context is that the Commission will continue to monitor and contribute to international forums, to ensure coherence of Member States' commitments with their obligations under the Directive. Apart from that, the Communication enumerates a number of activities executed for the simplification of the requirements for international transfers (see Chapter III of this opinion).

| 39. | The EDPS regrets that this perspective has not been given a more prominent role in the Communication. |
| --- | --- |

39.

The EDPS regrets that this perspective has not been given a more prominent role in the Communication.

| 40. | Presently, Chapter IV of the Directive (Articles 25 and 26) introduces a special regime for transfer of data to third countries, on top of the general rules on data protection. This special regime has been elaborated over the years, with the intention of striking a fair balance between the protection of the individuals whose data are to be transferred to third countries with, inter alia, the imperatives of international trade and the reality of global telecommunications networks. The Commission and the Working Party (16), but also for instance the International Chamber of Commerce, have invested much effort in making this system work, through adequacy findings, standard contractual clauses, binding corporate rules, etc. |
| --- | --- |

40.

Presently, Chapter IV of the Directive (Articles 25 and 26) introduces a special regime for transfer of data to third countries, on top of the general rules on data protection. This special regime has been elaborated over the years, with the intention of striking a fair balance between the protection of the individuals whose data are to be transferred to third countries with, inter alia, the imperatives of international trade and the reality of global telecommunications networks. The Commission and the Working Party (16), but also for instance the International Chamber of Commerce, have invested much effort in making this system work, through adequacy findings, standard contractual clauses, binding corporate rules, etc.

| 41. | For the applicability of the system to Internet, the judgement of the Court of Justice in Lindqvist
   (17) has been of specific importance. The Court points at the ubiquitous nature of information on Internet and decides that the loading of data onto an internet page as such, even if those data are thereby made accessible to persons in third countries with the technical means to access them, does not qualify as a transfer to a third country. |
| --- | --- |

41.

For the applicability of the system to Internet, the judgement of the Court of Justice in Lindqvist
   (17) has been of specific importance. The Court points at the ubiquitous nature of information on Internet and decides that the loading of data onto an internet page as such, even if those data are thereby made accessible to persons in third countries with the technical means to access them, does not qualify as a transfer to a third country.

| 42. | This system, a logical and necessary consequence of the territorial limitations of the European Union, will not provide full protection to the European data subject in a networked society where physical borders lose importance (see, examples mentioned in point 6 of this opinion): the information on Internet has an ubiquitous nature, but the jurisdiction of the European legislator is not ubiquitous. |
| --- | --- |

42.

This system, a logical and necessary consequence of the territorial limitations of the European Union, will not provide full protection to the European data subject in a networked society where physical borders lose importance (see, examples mentioned in point 6 of this opinion): the information on Internet has an ubiquitous nature, but the jurisdiction of the European legislator is not ubiquitous.

| 43. | The challenge will be to find practical solutions that reconcile the need for protection of the European data subjects with the territorial limitations of the European Union and its Member States. The EDPS — in his comments on the Commission communication on a Strategy on the External Dimension of the Area of Freedom, Security and Justice — has already encouraged the Commission to take a proactive role in promoting the protection of personal data at international level, by supporting bilateral and multilateral approaches with third countries and cooperation with other international organisations (18). |
| --- | --- |

43.

The challenge will be to find practical solutions that reconcile the need for protection of the European data subjects with the territorial limitations of the European Union and its Member States. The EDPS — in his comments on the Commission communication on a Strategy on the External Dimension of the Area of Freedom, Security and Justice — has already encouraged the Commission to take a proactive role in promoting the protection of personal data at international level, by supporting bilateral and multilateral approaches with third countries and cooperation with other international organisations (18).

| 44. | Such practical solutions include:






  — | further development of a Global Framework for data protection. More generally accepted standards such as the OECD-guidelines for data protection (1980) and UN-Guidelines could be used as basis, |
| --- | --- | --- |

44.

Such practical solutions include:

—

further development of a Global Framework for data protection. More generally accepted standards such as the OECD-guidelines for data protection (1980) and UN-Guidelines could be used as basis,

| — | further development of the special regime for transfer of data to third countries, as included in Chapter IV of the Directive (Articles 25 and 26), |
| --- | --- |

—

further development of the special regime for transfer of data to third countries, as included in Chapter IV of the Directive (Articles 25 and 26),

| — | international agreements on jurisdiction, or similar agreements with third countries, |
| --- | --- |

—

international agreements on jurisdiction, or similar agreements with third countries,

| — | investing in mechanisms for global compliance, such as the use of binding corporate rules by multinational companies, regardless of where personal data are processed by them. |
| --- | --- |

—

investing in mechanisms for global compliance, such as the use of binding corporate rules by multinational companies, regardless of where personal data are processed by them.

| 45. | None of these solutions are new. However, a vision is needed on how to effectively use these methods in the most effective way and how to make sure that data protection standards — that in the European Union are qualified as fundamental rights — will also be effective in a global networked society. The EDPS invites the Commission to start developing such a vision, together with most relevant stakeholders. |
| --- | --- |

45.

None of these solutions are new. However, a vision is needed on how to effectively use these methods in the most effective way and how to make sure that data protection standards — that in the European Union are qualified as fundamental rights — will also be effective in a global networked society. The EDPS invites the Commission to start developing such a vision, together with most relevant stakeholders.

D.   Law enforcement

| 46. | The Communication pays extensive attention to requirements imposed by public interests, especially for security. It explains Article 3(2) of the Directive and the interpretation given by the Court of Justice to this provision in the PNR-Judgment (19), as well as Article 13 of the Directive, inter alia related to the case law of the European Court of Human Rights. The Communication furthermore stresses that when the Commission strikes the balance between measures to ensure security and non negotiable fundamental rights, it makes sure that personal data are protected as guaranteed by Article 8 ECHR. This point of departure also applies to the transatlantic dialogue with the United States of America. |
| --- | --- |

46.

The Communication pays extensive attention to requirements imposed by public interests, especially for security. It explains Article 3(2) of the Directive and the interpretation given by the Court of Justice to this provision in the PNR-Judgment (19), as well as Article 13 of the Directive, inter alia related to the case law of the European Court of Human Rights. The Communication furthermore stresses that when the Commission strikes the balance between measures to ensure security and non negotiable fundamental rights, it makes sure that personal data are protected as guaranteed by Article 8 ECHR. This point of departure also applies to the transatlantic dialogue with the United States of America.

| 47. | According to the EDPS, it is important that the Commission reiterates in such a clear manner the obligations of the Union under Article 6 of the EU Treaty to respect fundamental rights, as guaranteed by the ECHR. This statement is even more important now the European Council has decided that, under the Reform Treaty, the Charter of the fundamental rights of the European Union should have legally binding value. Article 8 of the Charter specifies everyone's right to protection of personal data concerning him or her. |
| --- | --- |

47.

According to the EDPS, it is important that the Commission reiterates in such a clear manner the obligations of the Union under Article 6 of the EU Treaty to respect fundamental rights, as guaranteed by the ECHR. This statement is even more important now the European Council has decided that, under the Reform Treaty, the Charter of the fundamental rights of the European Union should have legally binding value. Article 8 of the Charter specifies everyone's right to protection of personal data concerning him or her.

| 48. | It is common knowledge that the demands of law enforcement to increasingly use personal data for the combat of crime — not to mention the fight against terrorism — run the risk of lowering the level of protection of the citizen, even below a level that is guaranteed by Article 8 ECHR and/or the Council of Europe Convention No 108 (20). These concerns were a main element of the third opinion of the EDPS on the Proposal for a Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters, issued on 27 April 2007. |
| --- | --- |

48.

It is common knowledge that the demands of law enforcement to increasingly use personal data for the combat of crime — not to mention the fight against terrorism — run the risk of lowering the level of protection of the citizen, even below a level that is guaranteed by Article 8 ECHR and/or the Council of Europe Convention No 108 (20). These concerns were a main element of the third opinion of the EDPS on the Proposal for a Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters, issued on 27 April 2007.

| 49. | It is in this context essential that the standard of protection provided for by the Directive be taken as a basis for the protection of the citizen, also in relation to demands of law enforcement. The ECHR and Convention 108 provide for a minimal level of protection, but do not provide for the necessary precision. Over and above that, additional measures were needed to provide for appropriate protection for the citizen. This need was one of the driving factors of the adoption in 1995 of the Directive (21). |
| --- | --- |

49.

It is in this context essential that the standard of protection provided for by the Directive be taken as a basis for the protection of the citizen, also in relation to demands of law enforcement. The ECHR and Convention 108 provide for a minimal level of protection, but do not provide for the necessary precision. Over and above that, additional measures were needed to provide for appropriate protection for the citizen. This need was one of the driving factors of the adoption in 1995 of the Directive (21).

| 50. | It is equally essential that this standard of protection is effectively guaranteed in all situations where personal data are processed for law enforcement purposes. Although this communication does not deal with data processing in the third pillar, it rightly addresses the situation where data collected (and processed) for commercial purposes are used for law enforcement purposes. A situation, which is becoming more usual since police work relies more and more on the availability of information in possession of third parties. Directive 2006/24/EC (22) can be seen as the best illustration of this trend: this directive obliges providers of electronic communications to (longer) store data they have collected (and stored) for commercial purposes, for purposes of law enforcement. According to the EDPS, it should be fully ensured that personal data collected and processed within the scope of application of the Directive are properly protected when used for public interest purposes, and in particular for security or fight against terrorism. In some cases however, the latter purposes may fall beyond the scope of the Directive. |
| --- | --- |

50.

It is equally essential that this standard of protection is effectively guaranteed in all situations where personal data are processed for law enforcement purposes. Although this communication does not deal with data processing in the third pillar, it rightly addresses the situation where data collected (and processed) for commercial purposes are used for law enforcement purposes. A situation, which is becoming more usual since police work relies more and more on the availability of information in possession of third parties. Directive 2006/24/EC (22) can be seen as the best illustration of this trend: this directive obliges providers of electronic communications to (longer) store data they have collected (and stored) for commercial purposes, for purposes of law enforcement. According to the EDPS, it should be fully ensured that personal data collected and processed within the scope of application of the Directive are properly protected when used for public interest purposes, and in particular for security or fight against terrorism. In some cases however, the latter purposes may fall beyond the scope of the Directive.

| 51. | These observations lead to the following suggestions to the Commission:






  — | further reflection is needed on the implications to data protection of the involvement of private companies in law enforcement activities, with a view to ensuring that the principles of Directive 95/46/EC are fully applicable to these situations and that no lacunae affect citizens' fundamental right to data protection. In particular, it should be ensured that personal data collected within the scope of the Directive are properly and consistently protected also when further processed for public interests, be it within or beyond the scope of the Directive, |
| --- | --- | --- |

51.

These observations lead to the following suggestions to the Commission:

—

further reflection is needed on the implications to data protection of the involvement of private companies in law enforcement activities, with a view to ensuring that the principles of Directive 95/46/EC are fully applicable to these situations and that no lacunae affect citizens' fundamental right to data protection. In particular, it should be ensured that personal data collected within the scope of the Directive are properly and consistently protected also when further processed for public interests, be it within or beyond the scope of the Directive,

| — | this reflection should include in any event the shortcomings of the present legal framework where the borderline between the first and the third pillar is unclear and where there might even be situations in which there is no appropriate basis for a legal instrument for data protection at all (23), |
| --- | --- |

—

this reflection should include in any event the shortcomings of the present legal framework where the borderline between the first and the third pillar is unclear and where there might even be situations in which there is no appropriate basis for a legal instrument for data protection at all (23),

| — | Article 13 of the Directive, allowing exemptions and restrictions to data protection principles when this is necessary inter alia for public interests, should be construed in a way to preserve its effet utile as crucial interface and guarantee for personal data collected within the scope of the Directive, in line with the judgement of the Court of Justice in Österreichischer Rundfunk
   (24) and the case law of the ECHR, |
| --- | --- |

—

Article 13 of the Directive, allowing exemptions and restrictions to data protection principles when this is necessary inter alia for public interests, should be construed in a way to preserve its effet utile as crucial interface and guarantee for personal data collected within the scope of the Directive, in line with the judgement of the Court of Justice in Österreichischer Rundfunk
   (24) and the case law of the ECHR,

| — | the possibility of proposing legislation aiming at harmonizing the conditions and the safeguards for using the exemptions of Article 13 should be considered. |
| --- | --- |

—

the possibility of proposing legislation aiming at harmonizing the conditions and the safeguards for using the exemptions of Article 13 should be considered.

E.   The possible situation under the Reform Treaty

| 52. | In the Communication, the Commission touches upon the — enormous — impact of the Constitutional Treaty on the field of data protection. Indeed, the Treaty — which is now the Reform Treaty — will be of crucial importance in this field. The Treaty will be the end of the pillar structure, the provision on data protection (currently Article 286 EC) will be clarified and the Charter on the Fundamental Rights of the Union, which includes in its Article 8 a provision on data protection, will become a binding instrument. |
| --- | --- |

52.

In the Communication, the Commission touches upon the — enormous — impact of the Constitutional Treaty on the field of data protection. Indeed, the Treaty — which is now the Reform Treaty — will be of crucial importance in this field. The Treaty will be the end of the pillar structure, the provision on data protection (currently Article 286 EC) will be clarified and the Charter on the Fundamental Rights of the Union, which includes in its Article 8 a provision on data protection, will become a binding instrument.

| 53. | The mandate for the Intergovernmental Conference (IGC) pays specific attention to data protection. Point 19(f) basically states three things. Firstly, the general rules on data protection will be without prejudice to specific rules adopted in the CFSP Title (the current second pillar); secondly, a declaration will be adopted on data protection in the areas of police and judicial cooperation in criminal matters (the current third pillar) and thirdly, specific entries in the relevant Protocols will be adopted on the position of individual Member States (this element is mainly related to the specific position of the United Kingdom as regards police and judicial cooperation in criminal matters). |
| --- | --- |

53.

The mandate for the Intergovernmental Conference (IGC) pays specific attention to data protection. Point 19(f) basically states three things. Firstly, the general rules on data protection will be without prejudice to specific rules adopted in the CFSP Title (the current second pillar); secondly, a declaration will be adopted on data protection in the areas of police and judicial cooperation in criminal matters (the current third pillar) and thirdly, specific entries in the relevant Protocols will be adopted on the position of individual Member States (this element is mainly related to the specific position of the United Kingdom as regards police and judicial cooperation in criminal matters).

| 54. | It is the second element (the declaration) that will need clarification in the IGC. The consequences of the end of the pillar structure and the possible applicability of the Directive on police and judicial cooperation in criminal matters have to be duly considered, so as to ensure the widest possible application of the data protection principles contained in the Directive. This is not the place for further details on this issue. The EDPS has presented suggestions for the declaration in a letter to the Presidency of the IGC (25). |
| --- | --- |

54.

It is the second element (the declaration) that will need clarification in the IGC. The consequences of the end of the pillar structure and the possible applicability of the Directive on police and judicial cooperation in criminal matters have to be duly considered, so as to ensure the widest possible application of the data protection principles contained in the Directive. This is not the place for further details on this issue. The EDPS has presented suggestions for the declaration in a letter to the Presidency of the IGC (25).

VI.   INSTRUMENTS FOR BETTER IMPLEMENTATION

A.   General

| 55. | The Communication refers to a series of tools and actions that can be used for a better implementation of the Directive in the future. The EDPS wishes to comment on them, while also exploring other additional instruments not mentioned in the Communication. |
| --- | --- |

55.

The Communication refers to a series of tools and actions that can be used for a better implementation of the Directive in the future. The EDPS wishes to comment on them, while also exploring other additional instruments not mentioned in the Communication.

B.   Sectoral legislation

| 56. | In certain cases, specific legislative action at EU level may be necessary. In particular, sectoral legislation may prove to be necessary in order to adapt the Directive's principles to issues raised by some technologies, as it was in the case of the directives on privacy in the telecommunication sector. The use of specific legislation should be carefully considered in domains such as the use of RFID technologies. |
| --- | --- |

56.

In certain cases, specific legislative action at EU level may be necessary. In particular, sectoral legislation may prove to be necessary in order to adapt the Directive's principles to issues raised by some technologies, as it was in the case of the directives on privacy in the telecommunication sector. The use of specific legislation should be carefully considered in domains such as the use of RFID technologies.

C.   Infringement procedures

| 57. | The most powerful instrument mentioned in the Communication is the infringement procedure. The Communication identifies one specific area of concern, namely the independence of data protection authorities and their powers, and only mentions in general terms other areas. The EDPS shares the view that infringement procedures are an essential and unavoidable instrument, if Member States do not provide for a full implementation of the Directive, especially taking into account that almost nine years have elapsed since the deadline for implementation of the Directive and that the structured dialogue laid down in the Work Programme has already taken place. However, as of today, no case of infringement of Directive 95/46 has yet been brought before the Court of Justice. |
| --- | --- |

57.

The most powerful instrument mentioned in the Communication is the infringement procedure. The Communication identifies one specific area of concern, namely the independence of data protection authorities and their powers, and only mentions in general terms other areas. The EDPS shares the view that infringement procedures are an essential and unavoidable instrument, if Member States do not provide for a full implementation of the Directive, especially taking into account that almost nine years have elapsed since the deadline for implementation of the Directive and that the structured dialogue laid down in the Work Programme has already taken place. However, as of today, no case of infringement of Directive 95/46 has yet been brought before the Court of Justice.

| 58. | A comparative analysis of all cases where wrong or incomplete transposition is suspected (26), as well as an interpretative communication may certainly improve the coherence of the Commission's role as guardian of the Treaties. However, the preparation of these instruments, that might require a certain amount of time and effort, should not delay infringement procedures in those areas where an incorrect transposition or practice has already been clearly identified by the Commission. |
| --- | --- |

58.

A comparative analysis of all cases where wrong or incomplete transposition is suspected (26), as well as an interpretative communication may certainly improve the coherence of the Commission's role as guardian of the Treaties. However, the preparation of these instruments, that might require a certain amount of time and effort, should not delay infringement procedures in those areas where an incorrect transposition or practice has already been clearly identified by the Commission.

| 59. | Therefore, the EDPS encourages the Commission to pursue a better implementation of the Directive through infringement procedures, where necessary. In this context, the EDPS will make use of his powers of intervention before the Court of Justice in order to intervene, where appropriate, in infringement procedures relating to the implementation of Directive 95/46 or to other legal instruments in the area of the protection of personal data. |
| --- | --- |

59.

Therefore, the EDPS encourages the Commission to pursue a better implementation of the Directive through infringement procedures, where necessary. In this context, the EDPS will make use of his powers of intervention before the Court of Justice in order to intervene, where appropriate, in infringement procedures relating to the implementation of Directive 95/46 or to other legal instruments in the area of the protection of personal data.

D.   Interpretative communication

| 60. | The Communication also refers to an interpretative communication on some provisions in which the Commission will clarify its understanding of provisions of the Directive, whose implementation is found to be problematic and may thus lead to infringement procedures. The EDPS welcomes that in this context the Commission will take into account the work on interpretation conducted by the Working Party. Indeed, it is essential that the position of the Working Party is duly taken into account when drafting the upcoming interpretative communication and that the Working Party is properly consulted, with a view to bringing in its experience in the application of the Directive at national level. |
| --- | --- |

60.

The Communication also refers to an interpretative communication on some provisions in which the Commission will clarify its understanding of provisions of the Directive, whose implementation is found to be problematic and may thus lead to infringement procedures. The EDPS welcomes that in this context the Commission will take into account the work on interpretation conducted by the Working Party. Indeed, it is essential that the position of the Working Party is duly taken into account when drafting the upcoming interpretative communication and that the Working Party is properly consulted, with a view to bringing in its experience in the application of the Directive at national level.

| 61. | Furthermore, the EDPS confirms his availability to advise the Commission in all matters relating to the protection of personal data. This also applies to those instruments, such as Commission communications, that are not binding but are still aimed at defining the Commission policy in the area of the protection of personal data. In the case of communications, for this advisory role to be effective, the consultation of the EDPS should take place before the interpretative communication is adopted (27). The advisory role of both the WP 29 and the EDPS will provide added value to this communication, while preserving the independence of the Commission in deciding autonomously about formally opening infringement procedures relating to the implementation of the Directive. |
| --- | --- |

61.

Furthermore, the EDPS confirms his availability to advise the Commission in all matters relating to the protection of personal data. This also applies to those instruments, such as Commission communications, that are not binding but are still aimed at defining the Commission policy in the area of the protection of personal data. In the case of communications, for this advisory role to be effective, the consultation of the EDPS should take place before the interpretative communication is adopted (27). The advisory role of both the WP 29 and the EDPS will provide added value to this communication, while preserving the independence of the Commission in deciding autonomously about formally opening infringement procedures relating to the implementation of the Directive.

| 62. | The EDPS welcomes that the communication will deal only with a limited number of Articles, thus allowing focusing on more sensitive issues. In this perspective, the EDPS draws the Commission's attention to the following issues, which deserve special attention in the interpretative communication:






  — | the concept of personal data (28), |
| --- | --- | --- |

62.

The EDPS welcomes that the communication will deal only with a limited number of Articles, thus allowing focusing on more sensitive issues. In this perspective, the EDPS draws the Commission's attention to the following issues, which deserve special attention in the interpretative communication:

—

the concept of personal data (28),

| — | the definition of the role of data controller or data processor, |
| --- | --- |

—

the definition of the role of data controller or data processor,

| — | the determination of applicable law, |
| --- | --- |

—

the determination of applicable law,

| — | purpose limitation principle and incompatible use, |
| --- | --- |

—

purpose limitation principle and incompatible use,

| — | legal grounds for processing, especially with regard to unambiguous consent and balance of interests. |
| --- | --- |

—

legal grounds for processing, especially with regard to unambiguous consent and balance of interests.

E.   Other, non binding instruments

| 63. | Other, non binding instruments should proactively develop compliance with data protection principles, particularly in new technological environments. These measures should build on the concept of ‘privacy by design’, ensuring that the architecture of new technologies is developed and constructed by taking properly into account the principles of data protection. The promotion of privacy-compliant technological products should be a crucial element in a context in which ubiquitous computing is fast developing. |
| --- | --- |

63.

Other, non binding instruments should proactively develop compliance with data protection principles, particularly in new technological environments. These measures should build on the concept of ‘privacy by design’, ensuring that the architecture of new technologies is developed and constructed by taking properly into account the principles of data protection. The promotion of privacy-compliant technological products should be a crucial element in a context in which ubiquitous computing is fast developing.

| 64. | Closely linked is the necessity to extend the gamut of stakeholders in the enforcement of data protection law. On the one hand, the EDPS strongly supports the fundamental role of data protection authorities in enforcing the principles of the Directive, making full use of their powers as well as of the scope for coordination within the Article 29 Working Party. A more effective enforcement of the Directive is also one of the objectives of the ‘London initiative’. |
| --- | --- |

64.

Closely linked is the necessity to extend the gamut of stakeholders in the enforcement of data protection law. On the one hand, the EDPS strongly supports the fundamental role of data protection authorities in enforcing the principles of the Directive, making full use of their powers as well as of the scope for coordination within the Article 29 Working Party. A more effective enforcement of the Directive is also one of the objectives of the ‘London initiative’.

| 65. | On the other hand, the EDPS stresses the desirability of promoting private enforcement of data protection principles through self-regulation and competition. Industry should be encouraged to implement data protection principles and compete in developing privacy-compliant products and services as a way of expanding its position on the market by better addressing the expectations of privacy-aware consumers. In this context a good example can be found in Privacy seals, that could be attached to products and services that have undergone a certification procedure (29). |
| --- | --- |

65.

On the other hand, the EDPS stresses the desirability of promoting private enforcement of data protection principles through self-regulation and competition. Industry should be encouraged to implement data protection principles and compete in developing privacy-compliant products and services as a way of expanding its position on the market by better addressing the expectations of privacy-aware consumers. In this context a good example can be found in Privacy seals, that could be attached to products and services that have undergone a certification procedure (29).

| 66. | The EDPS would also like to draw the Commission's attention to other tools that, though not mentioned by the Communication, could prove to be useful for a better implementation of the Directive. Examples of such tools that would help data protection authorities in better enforcing data protection law are:






  — | benchmarking, |
| --- | --- | --- |

66.

The EDPS would also like to draw the Commission's attention to other tools that, though not mentioned by the Communication, could prove to be useful for a better implementation of the Directive. Examples of such tools that would help data protection authorities in better enforcing data protection law are:

—

benchmarking,

| — | promoting and sharing best practices, |
| --- | --- |

—

promoting and sharing best practices,

| — | third-party privacy audits. |
| --- | --- |

—

third-party privacy audits.

F.   Other instruments, for the longer term

| 67. | As a last point, the EDPS refers to other instruments that are not mentioned in the Communication, but could be either considered for a future change of the Directive or included in other horizontal legislation, in particular:






  — | class actions, empowering groups of citizens to jointly use litigation in matters concerning protection of personal data, might constitute a very powerful tool to facilitate the enforcement of the Directive, |
| --- | --- | --- |

67.

As a last point, the EDPS refers to other instruments that are not mentioned in the Communication, but could be either considered for a future change of the Directive or included in other horizontal legislation, in particular:

—

class actions, empowering groups of citizens to jointly use litigation in matters concerning protection of personal data, might constitute a very powerful tool to facilitate the enforcement of the Directive,

| — | actions, initiated by legal persons whose activities are designed to protect the interests of certain categories of persons, such as consumer associations and trade unions, might have a similar effect, |
| --- | --- |

—

actions, initiated by legal persons whose activities are designed to protect the interests of certain categories of persons, such as consumer associations and trade unions, might have a similar effect,

| — | obligations for data controllers to notify security breaches to data subjects would not only be a valuable safeguard, but also a way of raising awareness among citizens, |
| --- | --- |

—

obligations for data controllers to notify security breaches to data subjects would not only be a valuable safeguard, but also a way of raising awareness among citizens,

| — | provisions facilitating the use of privacy seals or third-party privacy audits (see points 65 and 66) in a transnational setting. |
| --- | --- |

—

provisions facilitating the use of privacy seals or third-party privacy audits (see points 65 and 66) in a transnational setting.

G.   Better defining the responsibilities of the institutional actors, in particular the Working Party

| 68. | Different institutional actors have responsibilities relating to the implementation of the Directive. The supervisory authorities in the Member States are under Article 28 of the Directive responsible for the monitoring of the application of the national provisions transposing the Directive in the Member States. Article 29 introduces the Working Party of supervisory authorities whilst Article 30 enumerates its tasks. Under Article 31 a committee of representatives from the Governments of the Member States assists the Commission in relation to implementing measures on Community level (a comitology-committee). |
| --- | --- |

68.

Different institutional actors have responsibilities relating to the implementation of the Directive. The supervisory authorities in the Member States are under Article 28 of the Directive responsible for the monitoring of the application of the national provisions transposing the Directive in the Member States. Article 29 introduces the Working Party of supervisory authorities whilst Article 30 enumerates its tasks. Under Article 31 a committee of representatives from the Governments of the Member States assists the Commission in relation to implementing measures on Community level (a comitology-committee).

| 69. | The need for better defining the responsibilities of the different actors exists in particular in relation to (the activities of) the Working Party. Article 30(1) lists four tasks of the Working Party which can be summarized as examining the application of the Directive on the national level with a view to uniformity and giving opinions on developments on Community level: the level of protection, legislative proposals and codes of conduct. This list shows the wide responsibility of the Working Party in the area of data protection, which is furthermore illustrated by the documents produced by the Working Party over the years. |
| --- | --- |

69.

The need for better defining the responsibilities of the different actors exists in particular in relation to (the activities of) the Working Party. Article 30(1) lists four tasks of the Working Party which can be summarized as examining the application of the Directive on the national level with a view to uniformity and giving opinions on developments on Community level: the level of protection, legislative proposals and codes of conduct. This list shows the wide responsibility of the Working Party in the area of data protection, which is furthermore illustrated by the documents produced by the Working Party over the years.

| 70. | According to the Communication, the Working Party ‘is a key element in ensuring better and more coherent implementation.’ The EDPS fully subscribes this statement, but also deems it necessary to clarify some specific elements of the responsibilities. |
| --- | --- |

70.

According to the Communication, the Working Party ‘is a key element in ensuring better and more coherent implementation.’ The EDPS fully subscribes this statement, but also deems it necessary to clarify some specific elements of the responsibilities.

| 71. | Firstly, the Communication urges for improvement of the contribution of the Working Party, since the national authorities should strive to adapt their national practice to the common line (30). The EDPS welcomes the intention of this statement, but warns for a confusion of responsibilities. It is the task of the Commission under Article 211 EC to monitor the compliance in the Member States, including the compliance by the supervisory authorities. The Working Party as an independent advisor can not be held responsible for the application by the national authorities of its opinions. |
| --- | --- |

71.

Firstly, the Communication urges for improvement of the contribution of the Working Party, since the national authorities should strive to adapt their national practice to the common line (30). The EDPS welcomes the intention of this statement, but warns for a confusion of responsibilities. It is the task of the Commission under Article 211 EC to monitor the compliance in the Member States, including the compliance by the supervisory authorities. The Working Party as an independent advisor can not be held responsible for the application by the national authorities of its opinions.

| 72. | Secondly, the Commission must be aware of its different roles in the Working Party, since it is not only a Member of the Working Party, but also provides its secretariat. In the exercise of the second role as secretariat, it must support the Working Party in a way that it can do its work in an independent manner. This basically means two things: the Commission must provide the necessary resources and the secretariat must work under the instructions of the Working Party and its Chairman as to the content and the scope of the Working Party's activities, as well as the nature of its output. More in general, the activities of the Commission in the fulfilment of its other duties under EC law should not impinge on its availability as a secretariat. |
| --- | --- |

72.

Secondly, the Commission must be aware of its different roles in the Working Party, since it is not only a Member of the Working Party, but also provides its secretariat. In the exercise of the second role as secretariat, it must support the Working Party in a way that it can do its work in an independent manner. This basically means two things: the Commission must provide the necessary resources and the secretariat must work under the instructions of the Working Party and its Chairman as to the content and the scope of the Working Party's activities, as well as the nature of its output. More in general, the activities of the Commission in the fulfilment of its other duties under EC law should not impinge on its availability as a secretariat.

| 73. | Thirdly, although the choice of priorities of the Working Party is the discretion of the Working Party itself, the Commission could indicate what it expects from the Working Party and how it considers that the available resources can at best be used. |
| --- | --- |

73.

Thirdly, although the choice of priorities of the Working Party is the discretion of the Working Party itself, the Commission could indicate what it expects from the Working Party and how it considers that the available resources can at best be used.

| 74. | Fourthly, the EDPS regrets that the Communication does not give clear indications on the division of roles between the Commission and the Working Party. He invites the Commission to present a paper to the Working Party in which such indications are given. The EDPS has the following suggestions for issues to be included in this paper:






  — | the Commission could ask the Working Party to work on a number of concrete and specified issues. The requests of the Commission should be based on a clear strategy of the tasks and priorities of the Working Party, |
| --- | --- | --- |

74.

Fourthly, the EDPS regrets that the Communication does not give clear indications on the division of roles between the Commission and the Working Party. He invites the Commission to present a paper to the Working Party in which such indications are given. The EDPS has the following suggestions for issues to be included in this paper:

—

the Commission could ask the Working Party to work on a number of concrete and specified issues. The requests of the Commission should be based on a clear strategy of the tasks and priorities of the Working Party,

| — | the Working Party sets its own priorities in a Work Program with clear priorities, |
| --- | --- |

—

the Working Party sets its own priorities in a Work Program with clear priorities,

| — | possibly, the Commission and the Working Party could lay down their arrangements in a Memorandum of Understanding, |
| --- | --- |

—

possibly, the Commission and the Working Party could lay down their arrangements in a Memorandum of Understanding,

| — | it is essential that the Working Party is fully involved in the interpretation of the Directive and feeds the discussions leading to possible changes of the Directive. |
| --- | --- |

—

it is essential that the Working Party is fully involved in the interpretation of the Directive and feeds the discussions leading to possible changes of the Directive.

VII.   CONCLUSIONS

| 75. | The EDPS shares the central conclusion of the Commission that the Directive should not be amended in the short term. This conclusion could be reinforced by building it also on the nature of the Directive and on the legislative policy of the Union. |
| --- | --- |

75.

The EDPS shares the central conclusion of the Commission that the Directive should not be amended in the short term. This conclusion could be reinforced by building it also on the nature of the Directive and on the legislative policy of the Union.

| 76. | The points of departure for the EDPS are as follows:






  — | in the short term, energy is best spent on improvements in the implementation of the Directive, |
| --- | --- | --- |

76.

The points of departure for the EDPS are as follows:

—

in the short term, energy is best spent on improvements in the implementation of the Directive,

| — | in the longer term, changes of the Directive seem unavoidable, |
| --- | --- |

—

in the longer term, changes of the Directive seem unavoidable,

| — | a clear date for a review to prepare proposals leading to such changes should already be set now. Such a date would give a clear incentive to start the thinking about future changes already now. |
| --- | --- |

—

a clear date for a review to prepare proposals leading to such changes should already be set now. Such a date would give a clear incentive to start the thinking about future changes already now.

| 77. | The main elements for future change include:






  — | no need for new principles, but a clear need for other administrative arrangements, |
| --- | --- | --- |

77.

The main elements for future change include:

—

no need for new principles, but a clear need for other administrative arrangements,

| — | the wide scope of data protection law applicable to all use of personal data should not change, |
| --- | --- |

—

the wide scope of data protection law applicable to all use of personal data should not change,

| — | data protection law should allow a balanced approach in concrete cases and should also allow data protection authorities to set priorities, |
| --- | --- |

—

data protection law should allow a balanced approach in concrete cases and should also allow data protection authorities to set priorities,

| — | the system should fully apply to the use of personal data for law enforcement purposes, although appropriate additional measures may be necessary to deal with special problems in this area. |
| --- | --- |

—

the system should fully apply to the use of personal data for law enforcement purposes, although appropriate additional measures may be necessary to deal with special problems in this area.

| 78. | The EDPS suggests that the Commission specifies: a timeline for the activities of Chapter III of the Communication; a deadline for a subsequent report on the application of the Directive; terms of reference to measure the realisation of the activities foreseen; indications on the way to proceed in the longer term. |
| --- | --- |

78.

The EDPS suggests that the Commission specifies: a timeline for the activities of Chapter III of the Communication; a deadline for a subsequent report on the application of the Directive; terms of reference to measure the realisation of the activities foreseen; indications on the way to proceed in the longer term.

| 79. | The EDPS welcomes the approach on technology as an important first step and suggests starting the discussion on a long term approach, including inter alia a fundamental debate on the development of a surveillance society. He also welcomes the ongoing review of Directive 2002/58/EC and the possible need for more specific rules to address data protection issues raised by new technologies such as the Internet and RFID. These actions should take into account the dynamic context in its entirety and in a long term perspective also involve the Directive 95/46/EC. |
| --- | --- |

79.

The EDPS welcomes the approach on technology as an important first step and suggests starting the discussion on a long term approach, including inter alia a fundamental debate on the development of a surveillance society. He also welcomes the ongoing review of Directive 2002/58/EC and the possible need for more specific rules to address data protection issues raised by new technologies such as the Internet and RFID. These actions should take into account the dynamic context in its entirety and in a long term perspective also involve the Directive 95/46/EC.

| 80. | The EDPS regrets that the perspective of global privacy and jurisdiction plays a limited role in the Communication and asks for practical solutions that reconcile the need for protection of the European data subjects with the territorial limitations of the European Union and its Member States, such as: the further development of a Global Framework for data protection; the further development of the special regime for transfer of data to third countries; international agreements on jurisdiction or similar agreements with third countries; investing in mechanisms for global compliance, such as the use of binding corporate rules by multinational companies.
  The EDPS invites the Commission to start developing a vision on this perspective, together with most relevant stakeholders. |
| --- | --- |

80.

The EDPS regrets that the perspective of global privacy and jurisdiction plays a limited role in the Communication and asks for practical solutions that reconcile the need for protection of the European data subjects with the territorial limitations of the European Union and its Member States, such as: the further development of a Global Framework for data protection; the further development of the special regime for transfer of data to third countries; international agreements on jurisdiction or similar agreements with third countries; investing in mechanisms for global compliance, such as the use of binding corporate rules by multinational companies.

The EDPS invites the Commission to start developing a vision on this perspective, together with most relevant stakeholders.

| 81. | On law enforcement, the EDPS has the following suggestions to the Commission:






  — | further reflection on the implications of the involvement of private companies in law enforcement activities, |
| --- | --- | --- |

81.

On law enforcement, the EDPS has the following suggestions to the Commission:

—

further reflection on the implications of the involvement of private companies in law enforcement activities,

| — | preserve the effet utile of Article 13 of the Directive, possibly by proposing legislation aiming at harmonizing the conditions and the safeguards for using the exemptions of Article 13. |
| --- | --- |

—

preserve the effet utile of Article 13 of the Directive, possibly by proposing legislation aiming at harmonizing the conditions and the safeguards for using the exemptions of Article 13.

| 82. | Full implementation of the Directive means (1) that it be ensured that the Member States fully comply with their obligations under European law and (2) that other, non binding tools, that could be instrumental to a high and harmonised level of data protection be fully used. The EDPS asks from the Commission to clearly indicate how it will use the different instruments and how it distinguishes its own responsibilities from those of the Working Party. |
| --- | --- |

82.

Full implementation of the Directive means (1) that it be ensured that the Member States fully comply with their obligations under European law and (2) that other, non binding tools, that could be instrumental to a high and harmonised level of data protection be fully used. The EDPS asks from the Commission to clearly indicate how it will use the different instruments and how it distinguishes its own responsibilities from those of the Working Party.

| 83. | As to those instruments:






  — | in certain cases, specific legislative action at EU level may be necessary, |
| --- | --- | --- |

83.

As to those instruments:

—

in certain cases, specific legislative action at EU level may be necessary,

| — | the Commission is encouraged to pursue a better implementation of the Directive through infringement procedures, |
| --- | --- |

—

the Commission is encouraged to pursue a better implementation of the Directive through infringement procedures,

| — | the Commission is invited to use the instrument of an interpretative communication — whilst respecting the advisory role of both the Working Party and the EDPS — for the following issues: the concept of personal data; the definition of the role of data controller or data processor; the determination of applicable law; the purpose limitation principle and incompatible use; legal grounds for processing, especially with regard to unambiguous consent and balance of interests, |
| --- | --- |

—

the Commission is invited to use the instrument of an interpretative communication — whilst respecting the advisory role of both the Working Party and the EDPS — for the following issues: the concept of personal data; the definition of the role of data controller or data processor; the determination of applicable law; the purpose limitation principle and incompatible use; legal grounds for processing, especially with regard to unambiguous consent and balance of interests,

| — | non binding instruments include instruments building on the concept of ‘privacy by design’, |
| --- | --- |

—

non binding instruments include instruments building on the concept of ‘privacy by design’,

| — | for longer term also: class actions; actions initiated by legal persons whose activities are designed to protect the interests of certain categories of persons; obligations for data controllers to notify security breaches to data subjects; provisions facilitating the use of privacy seals or third-party privacy audits in a trans-national setting. |
| --- | --- |

—

for longer term also: class actions; actions initiated by legal persons whose activities are designed to protect the interests of certain categories of persons; obligations for data controllers to notify security breaches to data subjects; provisions facilitating the use of privacy seals or third-party privacy audits in a trans-national setting.

| 84. | The EDPS invites the Commission to present a paper to the Working Party giving clear indications on the division of roles between the Commission and the Working Party, including the following issues:






  — | requests of the Commission to work on a number of concrete and specified issues, based on a clear strategy of the tasks and priorities of the Working Party, |
| --- | --- | --- |

84.

The EDPS invites the Commission to present a paper to the Working Party giving clear indications on the division of roles between the Commission and the Working Party, including the following issues:

—

requests of the Commission to work on a number of concrete and specified issues, based on a clear strategy of the tasks and priorities of the Working Party,

| — | the possibility to lay down arrangements in an MoU, |
| --- | --- |

—

the possibility to lay down arrangements in an MoU,

| — | full involvement of the Working Party in the interpretation of the Directive and the discussions leading to possible changes of the Directive. |
| --- | --- |

—

full involvement of the Working Party in the interpretation of the Directive and the discussions leading to possible changes of the Directive.

| 85. | The consequences of the Reform Treaty have to be duly considered, so as to ensure the widest possible application of the data protection principles contained in the Directive. The EDPS has presented suggestions in a letter to the Presidency of the IGC. |
| --- | --- |

85.

The consequences of the Reform Treaty have to be duly considered, so as to ensure the widest possible application of the data protection principles contained in the Directive. The EDPS has presented suggestions in a letter to the Presidency of the IGC.

Done at Brussels, 25 July 2007.

Peter HUSTINX

European Data Protection Supervisor

---

(1)  OJ L 281, 23.11.1995, p. 31.

1

(2)  OJ L 8, 12.1.2001, p. 1.

2

(3)  Further: the Communication.

3

(4)  Further: ‘the Directive’.

4

(5)  See point 37 of this Opinion.

5

(6)  In particular, the judgement of the Court in Lindqvist (see footnote 15) and in the PNR-cases (see footnote 17).

6

(7)  Page 9, first full paragraph of the Communication.

7

(8)  Recital 11 of the Directive.

8

(9)  Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37).

9

(10)  Page 11 of the Communication.

10

(11)  Page 6 of the Communication, next to final paragraph.

11

(12)  See, for instance Opinion No 4/2007 on the concept of personal data (WP 137) of the Working Party, adopted at 20 June 2007.

12

(13)  The Internet Task Force is a subgroup of the Article 29 Working Party.

13

(14)  See, for instance, Comments on the Communication of the Commission on interoperability of European databases, 10 March 2006, published on the website of the EDPS.

14

(15)  See: ‘Report on the Surveillance Society’, prepared by the Surveillance Studies Network for the UK Information Commissioner, and presented at the 28th International Conference of Data Protection and Privacy Commissioners in London on 2-3 November 2006 (see: www.privacyconference2006.co.uk (section Documents)).

15

(16)  See, for instance, Working document on a common interpretation of Article 26(1) of Directive 95/46/EC of 24 October 1995, adopted on 25 November 2005 (WP 114); Working Document Setting Forth a Co-Operation Procedure for Issuing Common Opinions on Adequate Safeguards Resulting From ‘Binding Corporate Rules’, adopted on 14 April 2005 (WP 107), and Opinion No 8/2003 on the draft standard contractual clauses submitted by a group of business associations (‘the alternative model contract’), adopted on 17 December 2003 (WP 84).

16

(17)  Judgment of the Court of 6 November 2003, Case C-101/01, ECR [2003], p. I-12971, points 56-71.

17

(18)  See Letter to the Director General of the European Commission's Justice, Freedom and Security department on the Communication on ‘A Strategy on the External Dimension of the Area of Freedom, Security and Justice’, 28 November 2005, available at EDPS website.

18

(19)  Judgment of the Court of 30 May 2006, European Parliament v Council (C-317/04) and Commission (C-318/04), Joined Cases C-317/04 and C-318/04, ECR [2006], p. I-4721.

19

(20)  Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of the Council of Europe, 28 January 1981.

20

(21)  The lack of precision of Convention No 108 was mentioned by the EDPS in a number of opinions, in relation to the need for a Council Framework Decision.

21

(22)  Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ L 105, 13.4.2006, p. 54).

22

(23)  The issue of a ‘legal loophole’, as expressed by the EDPS on several occasions, mainly in relation to the PNR-Judgement (see, f.i. annual report 2006, p. 47).

23

(24)  Judgment of the Court of 20 May 2003, Joined Cases C-465/00, C-138/01 and C-139/01, ECR [2003] p. I-4989.

24

(25)  See EDPS letter of 23 July 2007 to the IGC presidency on data protection under the Reform treaty, available at EDPS website.

25

(26)  See the Communication, p. 6.

26

(27)  See EDPS Policy Paper ‘The EDPS as an advisor to the Community Institutions on proposals for legislation and related documents’, available at EDPS website (point 5.2 of the paper).

27

(28)  This subject was also dealt with in Opinion No 4/2007 of the Working Party, cited in footnote 9.

28

(29)  It is worth mentioning the EuroPriSe project, promoted by the Schleswig Holstein Data Protection Authority within the Framework of the Eten project of the European Commission.

29

(30)  See page 11 of the Communication.

30

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| 27.10.2007 | EN | Official Journal of the European Union | C 255/13 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/13

---

Opinion of the European Data Protection Supervisor on the Proposal for a Council Decision establishing the European Police Office (Europol) — COM(2006) 817 final

(2007/C 255/02)

THE EUROPEAN DATA PROTECTION SUPERVISOR,

Having regard to the Treaty establishing the European Community, and in particular its Article 286,

Having regard to the Charter of Fundamental Rights of the European Union, and in particular its Article 8,

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),

Having regard to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (2), and in particular its Article 41,

Having regard to the request for an opinion in accordance with Article 28(2) of Regulation (EC) No 45/2001 sent to the EDPS on 20 December 2006.

HAS ADOPTED THE FOLLOWING OPINION:

I.   PRELIMINARY REMARKS

Consultation of the EDPS

| 1. | The Proposal for a Council Decision establishing the European Police Office (Europol) was sent by the Commission to the EDPS for advice, in accordance with Article 28(2) of Regulation (EC) No 45/2001/EC. According to the EDPS, the present opinion should be mentioned in the preamble of the Framework Decision (3). |
| --- | --- |

1.

The Proposal for a Council Decision establishing the European Police Office (Europol) was sent by the Commission to the EDPS for advice, in accordance with Article 28(2) of Regulation (EC) No 45/2001/EC. According to the EDPS, the present opinion should be mentioned in the preamble of the Framework Decision (3).

The importance of the proposal

| 2. | The objective of the proposal is not a major change in the mandate or the activities of Europol, but mainly to provide Europol with a new and more flexible legal basis. In 1995, Europol was created on the basis of a Convention between Member States, as meant in Article K.6 EU (now: Article 34) (4). The disadvantage of such Conventions in terms of flexibility and effectiveness is the need for ratification by all the Member States, which as recent experience shows can take several years. As the Explanatory Memorandum of the present proposal shows, the three protocols amending the Europol Convention, adopted in 2000, 2002 and 2003 had not yet entered into force by the end of 2006 (5). |
| --- | --- |

2.

The objective of the proposal is not a major change in the mandate or the activities of Europol, but mainly to provide Europol with a new and more flexible legal basis. In 1995, Europol was created on the basis of a Convention between Member States, as meant in Article K.6 EU (now: Article 34) (4). The disadvantage of such Conventions in terms of flexibility and effectiveness is the need for ratification by all the Member States, which as recent experience shows can take several years. As the Explanatory Memorandum of the present proposal shows, the three protocols amending the Europol Convention, adopted in 2000, 2002 and 2003 had not yet entered into force by the end of 2006 (5).

| 3. | However, the proposal also contains substantive changes, so as to further improve Europol's functioning. It extends the mandate of Europol and it contains several new provisions, aiming to further facilitate the work of Europol. In this perspective, the exchange of data between Europol and others (such as bodies of the European Community/European Union, authorities of Member States and third countries) becomes a more prominent issue. The proposal stipulates that Europol shall make every effort to ensure the interoperability between the data processing systems of Europol and the systems of the Member States and of bodies of the European Community/European Union (Article 10(5) of the proposal). It furthermore provides for direct access by national units to the system of Europol. |
| --- | --- |

3.

However, the proposal also contains substantive changes, so as to further improve Europol's functioning. It extends the mandate of Europol and it contains several new provisions, aiming to further facilitate the work of Europol. In this perspective, the exchange of data between Europol and others (such as bodies of the European Community/European Union, authorities of Member States and third countries) becomes a more prominent issue. The proposal stipulates that Europol shall make every effort to ensure the interoperability between the data processing systems of Europol and the systems of the Member States and of bodies of the European Community/European Union (Article 10(5) of the proposal). It furthermore provides for direct access by national units to the system of Europol.

| 4. | Furthermore, the position of Europol as a body under Title VI of the Treaty of the European Union (third pillar) has consequences for the applicable data protection law since Regulation (EC) No 45/2001 only applies to processing carried out in the exercise of activities falling within the scope of Community law and therefore does in principle not apply to processing operations by Europol. Chapter V of the proposal contains specific rules on data protection and data security, that can be considered as lex specialis providing for additional rules on top of a lex generalis, a general legal framework on data protection. However, this general legal framework for the third pillar has not yet been adopted (see further points 37-40). |
| --- | --- |

4.

Furthermore, the position of Europol as a body under Title VI of the Treaty of the European Union (third pillar) has consequences for the applicable data protection law since Regulation (EC) No 45/2001 only applies to processing carried out in the exercise of activities falling within the scope of Community law and therefore does in principle not apply to processing operations by Europol. Chapter V of the proposal contains specific rules on data protection and data security, that can be considered as lex specialis providing for additional rules on top of a lex generalis, a general legal framework on data protection. However, this general legal framework for the third pillar has not yet been adopted (see further points 37-40).

| 5. | A final point that has to be mentioned is that some other changes will bring the position of Europol more in line with other bodies of the European Union, established under the Treaty establishing the European Community. Although this does not fundamentally change the position of Europol, it can be seen as a first, encouraging development. Europol will be financed from the Community budget and the Staff of Europol will come within the scope of the Community Staff Regulations. This strengthens the control of the European Parliament (because of its position in the budgetary procedure) and of the European Court of Justice (in disputes on the budget and on Staff matters). The EDPS will have competences with regard to the processing of personal data related to Community Staff (see further point 47). |
| --- | --- |

5.

A final point that has to be mentioned is that some other changes will bring the position of Europol more in line with other bodies of the European Union, established under the Treaty establishing the European Community. Although this does not fundamentally change the position of Europol, it can be seen as a first, encouraging development. Europol will be financed from the Community budget and the Staff of Europol will come within the scope of the Community Staff Regulations. This strengthens the control of the European Parliament (because of its position in the budgetary procedure) and of the European Court of Justice (in disputes on the budget and on Staff matters). The EDPS will have competences with regard to the processing of personal data related to Community Staff (see further point 47).

The focus of this opinion

| 6. | This opinion will successively deal with the substantive changes (meant under point 3), the applicable laws on data protection (under point 4) and the growing similarities between Europol and Community bodies (under point 5). |
| --- | --- |

6.

This opinion will successively deal with the substantive changes (meant under point 3), the applicable laws on data protection (under point 4) and the growing similarities between Europol and Community bodies (under point 5).

| 7. | The opinion will pay specific attention to the increasing importance of the exchange of data between Europol and other bodies of the European Union, which in most cases fall under the supervision of the EDPS. In this context, Articles 22, 25 and 48 of the proposal can be specifically mentioned. The complexity of this issue leads to concerns both with regard to the principle of purpose limitation and with regard to applicable data protection laws and supervision in cases where different supervisory bodies are competent to supervise the different European bodies, depending on the pillar in which they are based. Another point of concern relates to the interoperability of the Europol Information System with other information systems. |
| --- | --- |

7.

The opinion will pay specific attention to the increasing importance of the exchange of data between Europol and other bodies of the European Union, which in most cases fall under the supervision of the EDPS. In this context, Articles 22, 25 and 48 of the proposal can be specifically mentioned. The complexity of this issue leads to concerns both with regard to the principle of purpose limitation and with regard to applicable data protection laws and supervision in cases where different supervisory bodies are competent to supervise the different European bodies, depending on the pillar in which they are based. Another point of concern relates to the interoperability of the Europol Information System with other information systems.

II.   THE PROPOSAL IN ITS CONTEXT

| 8. | The legislative environment of this proposal is rapidly changing. |
| --- | --- |

8.

The legislative environment of this proposal is rapidly changing.

| 9. | In the first place, the present proposal is one of a number of legislative activities in the fields of police and judicial cooperation, aiming to facilitate the possibilities for storage and exchange of personal data for law enforcement purposes. Some of these proposals have been adopted by Council — such as the Council Framework Decision of 18 December 2006 on the exchange of information and intelligence for instance (6), whilst other proposals are still in process. |
| --- | --- |

9.

In the first place, the present proposal is one of a number of legislative activities in the fields of police and judicial cooperation, aiming to facilitate the possibilities for storage and exchange of personal data for law enforcement purposes. Some of these proposals have been adopted by Council — such as the Council Framework Decision of 18 December 2006 on the exchange of information and intelligence for instance (6), whilst other proposals are still in process.

| 10. | The guiding principle for these legislative activities is the principle of availability which was introduced as an important new principle of law in the Hague Programme in November 2004. It entails that information needed for the fight against crime should cross the internal borders of the EU without obstacles. |
| --- | --- |

10.

The guiding principle for these legislative activities is the principle of availability which was introduced as an important new principle of law in the Hague Programme in November 2004. It entails that information needed for the fight against crime should cross the internal borders of the EU without obstacles.

| 11. | The principle of availability is not sufficient in itself. Additional legislative measures are needed in order to enable police and judicial authorities to effectively exchange information. In some cases, the instrument chosen to facilitate this exchange includes the establishment or improvement of an information system at a European level. The Europol Information System is such a system. The EDPS has addressed basic issues of such systems in respect of the Schengen Information System and will address some of those issues also in respect of the present proposal. Such issues include the conditions for granting access to the system, interlinking and interoperability and the applicable rules on data protection and supervision (7). |
| --- | --- |

11.

The principle of availability is not sufficient in itself. Additional legislative measures are needed in order to enable police and judicial authorities to effectively exchange information. In some cases, the instrument chosen to facilitate this exchange includes the establishment or improvement of an information system at a European level. The Europol Information System is such a system. The EDPS has addressed basic issues of such systems in respect of the Schengen Information System and will address some of those issues also in respect of the present proposal. Such issues include the conditions for granting access to the system, interlinking and interoperability and the applicable rules on data protection and supervision (7).

| 12. | Furthermore, the proposal should be examined in the light of the most recent developments, such as the initiative presented by the German presidency of the European Union to transpose the Prüm Treaty into the legal framework of the EU. |
| --- | --- |

12.

Furthermore, the proposal should be examined in the light of the most recent developments, such as the initiative presented by the German presidency of the European Union to transpose the Prüm Treaty into the legal framework of the EU.

| 13. | In the second place, the framework for data protection in the third pillar — a necessary condition for the exchange of personal data — is (as said before) still not adopted. To the contrary, the negotiations in Council on the Proposal for a Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters have turned out to be rather difficult. The German Presidency of the Council has announced that a new text (8) will be proposed, with some essential differences to the approach taken in the Commission proposal. |
| --- | --- |

13.

In the second place, the framework for data protection in the third pillar — a necessary condition for the exchange of personal data — is (as said before) still not adopted. To the contrary, the negotiations in Council on the Proposal for a Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters have turned out to be rather difficult. The German Presidency of the Council has announced that a new text (8) will be proposed, with some essential differences to the approach taken in the Commission proposal.

| 14. | In the third place, the proposal is directly related to the developments concerning the Treaty establishing a Constitution for Europe. Article III-276 of the Constitutional Treaty is supposed to be a major step in a process in which on the one hand the role and tasks of Europol are gradually extended and on the other hand Europol is gradually included into the European institutional framework. As stated in the Explanatory Memorandum of the present proposal, this Article incorporates the vision which emerged regarding Europol's future. The present decision takes part of this vision on board, taking into account the uncertainty of whether and when the provisions of the Constitutional Treaty will enter into force. |
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14.

In the third place, the proposal is directly related to the developments concerning the Treaty establishing a Constitution for Europe. Article III-276 of the Constitutional Treaty is supposed to be a major step in a process in which on the one hand the role and tasks of Europol are gradually extended and on the other hand Europol is gradually included into the European institutional framework. As stated in the Explanatory Memorandum of the present proposal, this Article incorporates the vision which emerged regarding Europol's future. The present decision takes part of this vision on board, taking into account the uncertainty of whether and when the provisions of the Constitutional Treaty will enter into force.

III.   SUBSTANTIVE CHANGES

Competence and tasks of Europol

| 15. | Articles 4 and 5 and Annex I of the proposal determine the mandate of Europol. This mandate is now extended to criminality which is not strictly related to organised crime and which covers the same list of serious crimes as included in the Council Framework Decision on the European arrest warrant (9). A second extension of the role of Europol is that its databases now will include information and intelligence forwarded by private entities. |
| --- | --- |

15.

Articles 4 and 5 and Annex I of the proposal determine the mandate of Europol. This mandate is now extended to criminality which is not strictly related to organised crime and which covers the same list of serious crimes as included in the Council Framework Decision on the European arrest warrant (9). A second extension of the role of Europol is that its databases now will include information and intelligence forwarded by private entities.

| 16. | As to this first extension, it is a logical step in the development of police cooperation in criminal matters. The EDPS recognises that this results in a better harmonisation of the legal instruments aiming to facilitate the police cooperation. Harmonisation is useful, not only because it improves the conditions for better cooperation, but also because it enhances the legal certainty of the citizen and it enables a more efficient control of the police cooperation, since the scope of all different instruments extends to the same categories of crimes. The EDPS assumes that this extension of the mandate is proposed, taking into account the principle of proportionality. |
| --- | --- |

16.

As to this first extension, it is a logical step in the development of police cooperation in criminal matters. The EDPS recognises that this results in a better harmonisation of the legal instruments aiming to facilitate the police cooperation. Harmonisation is useful, not only because it improves the conditions for better cooperation, but also because it enhances the legal certainty of the citizen and it enables a more efficient control of the police cooperation, since the scope of all different instruments extends to the same categories of crimes. The EDPS assumes that this extension of the mandate is proposed, taking into account the principle of proportionality.

| 17. | As to the second extension, this fits within the recent trend in police cooperation in which the use of data collected by private companies for purposes of law enforcement becomes more and more important. The EDPS recognises that there can be a need for such use. In particular for the combat of terrorism and other serious crime, it can be necessary for law enforcement to have access to all relevant information, including information in the hands of private parties (10). However, the nature of information and intelligence coming from private parties requires additional safeguards, inter alia in order to ensure the accuracy of this information since these are personal data that have been collected for commercial purposes in a commercial environment. It should also be ensured that this information has been lawfully collected and processed before forwarding it to Europol, under national legislation implementing Directive 95/46/EC and that access by Europol is only allowed under well defined conditions and limitations: access should only be allowed on a case-by-case basis, for specified purposes and be under judicial control in the Member States (11). The EDPS therefore suggests including such conditions and limitations in the text of the decision. |
| --- | --- |

17.

As to the second extension, this fits within the recent trend in police cooperation in which the use of data collected by private companies for purposes of law enforcement becomes more and more important. The EDPS recognises that there can be a need for such use. In particular for the combat of terrorism and other serious crime, it can be necessary for law enforcement to have access to all relevant information, including information in the hands of private parties (10). However, the nature of information and intelligence coming from private parties requires additional safeguards, inter alia in order to ensure the accuracy of this information since these are personal data that have been collected for commercial purposes in a commercial environment. It should also be ensured that this information has been lawfully collected and processed before forwarding it to Europol, under national legislation implementing Directive 95/46/EC and that access by Europol is only allowed under well defined conditions and limitations: access should only be allowed on a case-by-case basis, for specified purposes and be under judicial control in the Member States (11). The EDPS therefore suggests including such conditions and limitations in the text of the decision.

Article 10 on information processing

| 18. | Article 6 of the Europol Convention takes a restrictive approach on the processing of collected information by Europol. This processing is limited to three components: the Europol Information System, Analysis Work Files and an index system. Article 10(1) of the proposal replaces this approach by a general provision allowing Europol to process information and intelligence in so far as it is necessary to achieve its objectives. However, Article 10(3) of the proposal states that the processing of personal data outside of the Europol Information System and Analysis Work Files is subject to conditions laid down in a decision by Council after consulting the European Parliament. According to the EDPS this provision is drafted in a sufficiently precise way to protect legitimate interests of data subjects. The consultation of data protection authorities before the adoption of such a decision by Council as proposed in point 55 should be added to Article 10(3). |
| --- | --- |

18.

Article 6 of the Europol Convention takes a restrictive approach on the processing of collected information by Europol. This processing is limited to three components: the Europol Information System, Analysis Work Files and an index system. Article 10(1) of the proposal replaces this approach by a general provision allowing Europol to process information and intelligence in so far as it is necessary to achieve its objectives. However, Article 10(3) of the proposal states that the processing of personal data outside of the Europol Information System and Analysis Work Files is subject to conditions laid down in a decision by Council after consulting the European Parliament. According to the EDPS this provision is drafted in a sufficiently precise way to protect legitimate interests of data subjects. The consultation of data protection authorities before the adoption of such a decision by Council as proposed in point 55 should be added to Article 10(3).

| 19. | In Article 10(2), the possibility for Europol to ‘process personal data for the purpose of determining whether such data are relevant for its tasks’ seems contrary to the principle of proportionality. This wording is not very precise and encompasses in practice the risk of processing for all kinds of undefined purposes. |
| --- | --- |

19.

In Article 10(2), the possibility for Europol to ‘process personal data for the purpose of determining whether such data are relevant for its tasks’ seems contrary to the principle of proportionality. This wording is not very precise and encompasses in practice the risk of processing for all kinds of undefined purposes.

| 20. | The EDPS understands the need for processing of personal data in a stage when their relevance for the carrying out of a task of Europol has not yet been established. However, it should be ensured that processing of personal data whose relevance have not yet been assessed is strictly limited to the purpose of assessing its relevance, that this assessment is carried out within a reasonable amount of time, and that, insofar as the relevance is not checked, the data are not processed for law enforcement purposes. A different solution would not only impinge on data subjects rights, but would also hinder efficiency of law enforcement.
  Therefore, in order to comply with the principle of proportionality, the EDPS proposes adding a provision to Article 10(2) laying down the obligation to store data in separate databases until the relevance to a specific task of Europol is established. Furthermore, the amount of time for which these data may be processed must be strictly limited and in any event not last longer than 6 months (12). |
| --- | --- |

20.

The EDPS understands the need for processing of personal data in a stage when their relevance for the carrying out of a task of Europol has not yet been established. However, it should be ensured that processing of personal data whose relevance have not yet been assessed is strictly limited to the purpose of assessing its relevance, that this assessment is carried out within a reasonable amount of time, and that, insofar as the relevance is not checked, the data are not processed for law enforcement purposes. A different solution would not only impinge on data subjects rights, but would also hinder efficiency of law enforcement.

Therefore, in order to comply with the principle of proportionality, the EDPS proposes adding a provision to Article 10(2) laying down the obligation to store data in separate databases until the relevance to a specific task of Europol is established. Furthermore, the amount of time for which these data may be processed must be strictly limited and in any event not last longer than 6 months (12).

| 21. | According to Article 10(5) of the proposal, every effort shall be made in order to ensure interoperability with the data processing systems in the Member States and with the systems in use by the Community and Union related bodies. This approach reverses the approach of the Europol Convention (Article 6(2)), which prohibits the linking to other automated processing systems. |
| --- | --- |

21.

According to Article 10(5) of the proposal, every effort shall be made in order to ensure interoperability with the data processing systems in the Member States and with the systems in use by the Community and Union related bodies. This approach reverses the approach of the Europol Convention (Article 6(2)), which prohibits the linking to other automated processing systems.

| 22. | In his comments on the Communication of the Commission on interoperability of European databases (13), the EDPS opposed the view that interoperability is primarily a technical concept. If databases become technically interoperable — which means that access to and exchange of data is possible — there will be pressure to actually use this possibility. This poses specific risks related to the principle of purpose limitation, because data can easily be used for a different purpose than the purpose of collection. The EDPS insists on applying strict conditions and guarantees, when the interlinking with a database is actually put in place. |
| --- | --- |

22.

In his comments on the Communication of the Commission on interoperability of European databases (13), the EDPS opposed the view that interoperability is primarily a technical concept. If databases become technically interoperable — which means that access to and exchange of data is possible — there will be pressure to actually use this possibility. This poses specific risks related to the principle of purpose limitation, because data can easily be used for a different purpose than the purpose of collection. The EDPS insists on applying strict conditions and guarantees, when the interlinking with a database is actually put in place.

| 23. | The EDPS therefore recommends adding a provision to the proposal requiring that interlinking is only allowed after a decision laying down the conditions and guarantees for this interlinking, in particular with regard to the necessity of the interlinking and the purposes for which the personal data will be used. This decision should be adopted after consulting the EDPS and the Joint Supervisory Body. Such a provision could be related to Article 22 of the proposal on relations with other bodies and agencies. |
| --- | --- |

23.

The EDPS therefore recommends adding a provision to the proposal requiring that interlinking is only allowed after a decision laying down the conditions and guarantees for this interlinking, in particular with regard to the necessity of the interlinking and the purposes for which the personal data will be used. This decision should be adopted after consulting the EDPS and the Joint Supervisory Body. Such a provision could be related to Article 22 of the proposal on relations with other bodies and agencies.

Article 11: Europol information system

| 24. | The EDPS notes with respect to Article 11(1) that the existing restriction of access by a national unit to personal data relating to possible criminals who have not (yet) committed a crime has been deleted. This restriction is now laid down in Article 7(1) of the Convention and restricts the direct access to the details of the identity of the persons concerned. |
| --- | --- |

24.

The EDPS notes with respect to Article 11(1) that the existing restriction of access by a national unit to personal data relating to possible criminals who have not (yet) committed a crime has been deleted. This restriction is now laid down in Article 7(1) of the Convention and restricts the direct access to the details of the identity of the persons concerned.

| 25. | In the view of the EDPS there is no justification for this substantive modification. To the contrary, these specific safeguards for this category of persons are fully in line with the approach of the Commission-proposal for a Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters. The EDPS recommends providing more safeguards for the access to the data of these persons who have not (yet) committed a crime and in any event not to weaken the protection given under the Europol Convention. |
| --- | --- |

25.

In the view of the EDPS there is no justification for this substantive modification. To the contrary, these specific safeguards for this category of persons are fully in line with the approach of the Commission-proposal for a Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters. The EDPS recommends providing more safeguards for the access to the data of these persons who have not (yet) committed a crime and in any event not to weaken the protection given under the Europol Convention.

Article 20: Time limits for storage

| 26. | According to the amended text of Article 21(3) of the Europol Convention (14), the need for continued storage of personal data relating to individuals as referred to in Article 10(1) shall be reviewed every year and the review documented. However, Article 20(1) of the proposal only requires review within three years after the input of the data. The EDPS is not convinced that this extra flexibility is needed and therefore recommends inserting an obligation for a yearly review in the proposal. A modification to the proposal is even more important, since the proposal should contain an obligation to review the storage on a regular basis, not only once after three years. |
| --- | --- |

26.

According to the amended text of Article 21(3) of the Europol Convention (14), the need for continued storage of personal data relating to individuals as referred to in Article 10(1) shall be reviewed every year and the review documented. However, Article 20(1) of the proposal only requires review within three years after the input of the data. The EDPS is not convinced that this extra flexibility is needed and therefore recommends inserting an obligation for a yearly review in the proposal. A modification to the proposal is even more important, since the proposal should contain an obligation to review the storage on a regular basis, not only once after three years.

Article 21: Access to national and international databases

| 27. | Article 21 is a general provision allowing Europol to gain computerised access and retrieve data from other national and international information systems. This access should be allowed only on a case by case basis, under strict conditions. However, Article 21 allows for access that is much too wide which is not necessary for the tasks of Europol. In this context, the EDPS refers to his opinion of 20 January 2006 on Access to VIS by authorities responsible for internal security (15). The EDPS recommends modifying the text of the proposal accordingly. |
| --- | --- |

27.

Article 21 is a general provision allowing Europol to gain computerised access and retrieve data from other national and international information systems. This access should be allowed only on a case by case basis, under strict conditions. However, Article 21 allows for access that is much too wide which is not necessary for the tasks of Europol. In this context, the EDPS refers to his opinion of 20 January 2006 on Access to VIS by authorities responsible for internal security (15). The EDPS recommends modifying the text of the proposal accordingly.

| 28. | It is important to keep in mind that the provision, as far as it concerns the access to national databases, is wider than the communication of information between Europol and national units, which is dealt with inter alia in Article 12(4) of the proposal. This access will not only be subject to the provisions of the present Council Decision, but also be governed by national law on access to and usage of the data. The EDPS welcomes the notion included in Article 21 that the stricter rule shall apply. Moreover, the importance of the communication of personal data between Europol and national databases, including the access by Europol to those national databases, is an additional reason for the adoption of a Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters, offering an adequate level of protection. |
| --- | --- |

28.

It is important to keep in mind that the provision, as far as it concerns the access to national databases, is wider than the communication of information between Europol and national units, which is dealt with inter alia in Article 12(4) of the proposal. This access will not only be subject to the provisions of the present Council Decision, but also be governed by national law on access to and usage of the data. The EDPS welcomes the notion included in Article 21 that the stricter rule shall apply. Moreover, the importance of the communication of personal data between Europol and national databases, including the access by Europol to those national databases, is an additional reason for the adoption of a Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters, offering an adequate level of protection.

Article 24: Communication of data to third bodies

| 29. | Article 24(1) lays down two conditions for communication of data to public authorities of third countries and international organisations: (a) communication may only take place if necessary in individual cases for the combat of crime and (b) on the basis of an international agreement assuring that an adequate level of data protection is afforded by the third body. Article 24(2) allows for derogation in exceptional cases, taking the level of data protection of the receiving body into consideration. The EDPS understands the need of these exceptions, and emphasises the need of a strict application of the exceptions, on a case by case basis in very exceptional situations. The text of Article 24(2) reflects these conditions in a satisfactory way. |
| --- | --- |

29.

Article 24(1) lays down two conditions for communication of data to public authorities of third countries and international organisations: (a) communication may only take place if necessary in individual cases for the combat of crime and (b) on the basis of an international agreement assuring that an adequate level of data protection is afforded by the third body. Article 24(2) allows for derogation in exceptional cases, taking the level of data protection of the receiving body into consideration. The EDPS understands the need of these exceptions, and emphasises the need of a strict application of the exceptions, on a case by case basis in very exceptional situations. The text of Article 24(2) reflects these conditions in a satisfactory way.

Article 29: Right of access to personal data

| 30. | Article 29 deals with the right of access to personal data. This is one of the basic rights of the data subject, which is enshrined in Article 8(2) of the Charter of Fundamental Rights for the European Union, and is also guaranteed by the Council of Europe Convention 108 of 28 January 1981 and by Recommendation No R (87) 15 of the Committee of Ministers of the Council of Europe of 17 September 1987. This right is part of the principle of fair and lawful processing of personal data and is designed to protect the essential interests of the data subject. However, the conditions laid down by Article 29 limit this right in a way which is not acceptable in the light of the above. |
| --- | --- |

30.

Article 29 deals with the right of access to personal data. This is one of the basic rights of the data subject, which is enshrined in Article 8(2) of the Charter of Fundamental Rights for the European Union, and is also guaranteed by the Council of Europe Convention 108 of 28 January 1981 and by Recommendation No R (87) 15 of the Committee of Ministers of the Council of Europe of 17 September 1987. This right is part of the principle of fair and lawful processing of personal data and is designed to protect the essential interests of the data subject. However, the conditions laid down by Article 29 limit this right in a way which is not acceptable in the light of the above.

| 31. | First of all, Article 29(3) lays down that the request for access — made in a Member State according to Article 29(2) — will be dealt with in accordance with Article 29 and in accordance with the laws and procedures of the Member State in which a request is made. As a result, national law may limit the scope and the substance of the right of access and may impose procedural constraints. This result could be unsatisfactory. For instance, requests for access to personal data can also be made by persons whose data are not processed by Europol. It is essential that the right of access extends to these requests. It therefore must be ensured that national law entailing a more limited right of access does not apply. |
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31.

First of all, Article 29(3) lays down that the request for access — made in a Member State according to Article 29(2) — will be dealt with in accordance with Article 29 and in accordance with the laws and procedures of the Member State in which a request is made. As a result, national law may limit the scope and the substance of the right of access and may impose procedural constraints. This result could be unsatisfactory. For instance, requests for access to personal data can also be made by persons whose data are not processed by Europol. It is essential that the right of access extends to these requests. It therefore must be ensured that national law entailing a more limited right of access does not apply.

| 32. | According to the EDPS, the reference to national law in Article 29(3) should be deleted and be replaced by harmonised rules on scope, substance and procedure preferably in the Council Framework Decision on the protection of personal data or, where necessary, in the Council Decision. |
| --- | --- |

32.

According to the EDPS, the reference to national law in Article 29(3) should be deleted and be replaced by harmonised rules on scope, substance and procedure preferably in the Council Framework Decision on the protection of personal data or, where necessary, in the Council Decision.

| 33. | Furthermore, Article 29(4) lists the grounds for refusal of access to personal data, in case the data subject wants to exercise his right of access to personal data concerning him that are processed by Europol. According to Article 29(4) access shall be denied if such access ‘might jeopardise’ certain specific interests. This wording is much wider than the wording of Article 19(3) of the Europol Convention, which allows refusal of access only ‘if such refusal is necessary to’. |
| --- | --- |

33.

Furthermore, Article 29(4) lists the grounds for refusal of access to personal data, in case the data subject wants to exercise his right of access to personal data concerning him that are processed by Europol. According to Article 29(4) access shall be denied if such access ‘might jeopardise’ certain specific interests. This wording is much wider than the wording of Article 19(3) of the Europol Convention, which allows refusal of access only ‘if such refusal is necessary to’.

| 34. | The EDPS recommends maintaining the stricter wording of the text of the Europol Convention. It must also be ensured that the data controller is obliged to state the reasons for refusal, in such a way that the use of this exception can be effectively controlled. This principle is expressly laid down in the Recommendation No R (87) 15 of the Committee of Ministers of the Council of Europe. The wording in the Commission proposal is not acceptable since it does not do justice to the fundamental nature of the right of access. Exceptions to this right can only be accepted if this is necessary in order to protect another fundamental interest, if in other words access would undermine this other interest. |
| --- | --- |

34.

The EDPS recommends maintaining the stricter wording of the text of the Europol Convention. It must also be ensured that the data controller is obliged to state the reasons for refusal, in such a way that the use of this exception can be effectively controlled. This principle is expressly laid down in the Recommendation No R (87) 15 of the Committee of Ministers of the Council of Europe. The wording in the Commission proposal is not acceptable since it does not do justice to the fundamental nature of the right of access. Exceptions to this right can only be accepted if this is necessary in order to protect another fundamental interest, if in other words access would undermine this other interest.

| 35. | Last but not least, the right of access is strongly limited by the consultation mechanism laid down in Article 29(5). This mechanism makes the access conditional upon consultation of all competent authorities concerned and, with regard to analysis files, also upon consensus of Europol and all Member States participating in the analysis or directly concerned. This mechanism de facto overturns the fundamental nature of the right of access. Access should be granted as a general principle and may be restricted only under specific circumstances. Instead, according to the text of the proposal, access would be granted only after consultation is carried out and consensus is reached. |
| --- | --- |

35.

Last but not least, the right of access is strongly limited by the consultation mechanism laid down in Article 29(5). This mechanism makes the access conditional upon consultation of all competent authorities concerned and, with regard to analysis files, also upon consensus of Europol and all Member States participating in the analysis or directly concerned. This mechanism de facto overturns the fundamental nature of the right of access. Access should be granted as a general principle and may be restricted only under specific circumstances. Instead, according to the text of the proposal, access would be granted only after consultation is carried out and consensus is reached.

IV.   THE APPLICABILITY OF A GENERAL FRAMEWORK ON DATA PROTECTION

General point

| 36. | Europol will be a body of the European Union, but not a Community institution or body as meant in Article 3 of Regulation (EC) No 45/2001. For this reason, the Regulation does not normally apply to processing of personal data by Europol, apart from specific situations. Chapter V of the proposal therefore introduces a data protection regime sui generis, which also relies on an applicable general legal framework on data protection. |
| --- | --- |

36.

Europol will be a body of the European Union, but not a Community institution or body as meant in Article 3 of Regulation (EC) No 45/2001. For this reason, the Regulation does not normally apply to processing of personal data by Europol, apart from specific situations. Chapter V of the proposal therefore introduces a data protection regime sui generis, which also relies on an applicable general legal framework on data protection.

A general legal framework on data protection in the third pillar

| 37. | The proposal acknowledges the need for a general legal framework on data protection. According to Article 26 of the proposal, as a lex generalis Europol shall apply the principles of the Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters. This reference to the (proposed) Council Framework Decision replaces the reference in Article 14(3) of the Europol Convention to the Council of Europe Convention 108 of 28 January 1981 and Recommendation No R (87) 15 of the Committee of Ministers of the Council of Europe of 17 September 1987. |
| --- | --- |

37.

The proposal acknowledges the need for a general legal framework on data protection. According to Article 26 of the proposal, as a lex generalis Europol shall apply the principles of the Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters. This reference to the (proposed) Council Framework Decision replaces the reference in Article 14(3) of the Europol Convention to the Council of Europe Convention 108 of 28 January 1981 and Recommendation No R (87) 15 of the Committee of Ministers of the Council of Europe of 17 September 1987.

| 38. | The EDPS welcomes Article 26 of the proposal. This provision is crucial for the effectiveness of data protection, as well as for reasons of consistency since it facilitates the exchange of personal data which also benefits law enforcement. However, compatibility between the two instruments should be guaranteed which is not self evident bearing in mind that:






  — | the text of the Council Framework Decision has been discussed in the Council and has been fundamentally changed during the negotiations, finally leading to an impasse in the negotiations at the end of 2006, |
| --- | --- | --- |

38.

The EDPS welcomes Article 26 of the proposal. This provision is crucial for the effectiveness of data protection, as well as for reasons of consistency since it facilitates the exchange of personal data which also benefits law enforcement. However, compatibility between the two instruments should be guaranteed which is not self evident bearing in mind that:

—

the text of the Council Framework Decision has been discussed in the Council and has been fundamentally changed during the negotiations, finally leading to an impasse in the negotiations at the end of 2006,

| — | the German Presidency announced the proposal of a new text, to be issued in March 2007, mainly containing general principles of data protection, |
| --- | --- |

—

the German Presidency announced the proposal of a new text, to be issued in March 2007, mainly containing general principles of data protection,

| — | direct applicability of the Council Framework Decision to processing by Europol is an important issue in the current discussions. |
| --- | --- |

—

direct applicability of the Council Framework Decision to processing by Europol is an important issue in the current discussions.

Depending on the outcome of the negotiations in Council on this framework decision, probably based on the German proposal, additional safeguards might be needed in the present proposal. This point must be assessed at a later stage, when there is more clarity on the outcome of the negotiations on the Council Framework Decision.

| 39. | The EDPS emphasises that the present Council Decision should not be adopted before the adoption by Council of a framework on data protection, guaranteeing an appropriate level of data protection in conformity with the conclusions of the EDPS in his two opinions on the Commission proposal for a Council Framework Decision (16). |
| --- | --- |

39.

The EDPS emphasises that the present Council Decision should not be adopted before the adoption by Council of a framework on data protection, guaranteeing an appropriate level of data protection in conformity with the conclusions of the EDPS in his two opinions on the Commission proposal for a Council Framework Decision (16).

| 40. | In this context, the EDPS underlines two specific elements of the Commission proposal for a Council Framework Decision, which are in particular appropriate in enhancing the protection afforded to data subjects in case of processing of their data by Europol. In the first place, the proposal opens up possibilities for distinguishing the processing of data in accordance with their degree of accuracy and reliability. Data based on opinions are distinguished from data based on facts. Such a clear difference between ‘soft data’ and ‘hard data’ is an important method, in order to comply with the data quality principle. In the second place, the proposal provides for a distinction between data of categories of persons, based on their possible involvement in a criminal offence. |
| --- | --- |

40.

In this context, the EDPS underlines two specific elements of the Commission proposal for a Council Framework Decision, which are in particular appropriate in enhancing the protection afforded to data subjects in case of processing of their data by Europol. In the first place, the proposal opens up possibilities for distinguishing the processing of data in accordance with their degree of accuracy and reliability. Data based on opinions are distinguished from data based on facts. Such a clear difference between ‘soft data’ and ‘hard data’ is an important method, in order to comply with the data quality principle. In the second place, the proposal provides for a distinction between data of categories of persons, based on their possible involvement in a criminal offence.

Regulation (EC) No 45/2001

| 41. | This leads to the applicability of Regulation (EC) No 45/2001 to activities of Europol. This Regulation (EC) No 45/2001 does first of all apply with regard to the Staff of Europol which will be dealt with in point 47. Secondly, and this is the subject of Part IV of this opinion, the Regulation will apply to exchanges of data with Community bodies, at least in so far as data are being sent by these bodies to Europol. Important examples of Community bodies are the bodies mentioned in Article 22(1) of the proposal. |
| --- | --- |

41.

This leads to the applicability of Regulation (EC) No 45/2001 to activities of Europol. This Regulation (EC) No 45/2001 does first of all apply with regard to the Staff of Europol which will be dealt with in point 47. Secondly, and this is the subject of Part IV of this opinion, the Regulation will apply to exchanges of data with Community bodies, at least in so far as data are being sent by these bodies to Europol. Important examples of Community bodies are the bodies mentioned in Article 22(1) of the proposal.

| 42. | One can expect that these bodies will be required to send personal data to Europol quite regularly. In doing so, Community institutions and bodies will be subject to all the obligations laid down by Regulation (EC) No 45/2001, in particular with regard to the lawfulness of processing (Article 5 of the Regulation), prior checking (Article 27) and consultation of the EDPS (Article 28). This raises questions as to the applicability of Articles 7, 8 and 9 of Regulation (EC) No 45/2001. Europol, being ‘other than Community institutions or bodies’ and not subject to Directive 95/46/EC, may well fall under Article 9. In that case, the adequacy of protection afforded by Europol should be assessed under Article 9(2) of Regulation (EC) No 45/2001 in the same way as other international organisations or third countries. This solution would create uncertainty and would moreover not be in conformity with the basic idea in the proposal of bringing the position of Europol more in line with institution and bodies under the EC Treaty. A better solution would be to treat Europol as a Community body as far as it processes data originating from Community bodies. The EDPS suggests adding a paragraph to Article 22 reading as follows: ‘Where personal data are transferred by Community institutions or bodies, Europol shall be regarded as a Community body as meant in Article 7 of Regulation (EC) No 45/2001’. |
| --- | --- |

42.

One can expect that these bodies will be required to send personal data to Europol quite regularly. In doing so, Community institutions and bodies will be subject to all the obligations laid down by Regulation (EC) No 45/2001, in particular with regard to the lawfulness of processing (Article 5 of the Regulation), prior checking (Article 27) and consultation of the EDPS (Article 28). This raises questions as to the applicability of Articles 7, 8 and 9 of Regulation (EC) No 45/2001. Europol, being ‘other than Community institutions or bodies’ and not subject to Directive 95/46/EC, may well fall under Article 9. In that case, the adequacy of protection afforded by Europol should be assessed under Article 9(2) of Regulation (EC) No 45/2001 in the same way as other international organisations or third countries. This solution would create uncertainty and would moreover not be in conformity with the basic idea in the proposal of bringing the position of Europol more in line with institution and bodies under the EC Treaty. A better solution would be to treat Europol as a Community body as far as it processes data originating from Community bodies. The EDPS suggests adding a paragraph to Article 22 reading as follows: ‘Where personal data are transferred by Community institutions or bodies, Europol shall be regarded as a Community body as meant in Article 7 of Regulation (EC) No 45/2001’.

Exchange of data with Olaf

| 43. | Special attention has to be given to the exchange of personal data with the European Anti-fraud office (Olaf). Presently, the exchange of information between Europol and Olaf takes place on the basis of an administrative agreement between the two bodies. This agreement provides for the exchange of strategic and technical information, but excludes the exchange of personal data. |
| --- | --- |

43.

Special attention has to be given to the exchange of personal data with the European Anti-fraud office (Olaf). Presently, the exchange of information between Europol and Olaf takes place on the basis of an administrative agreement between the two bodies. This agreement provides for the exchange of strategic and technical information, but excludes the exchange of personal data.

| 44. | The proposal for a Council Decision is of a different nature. Article 22(3) provides for the exchange of information, including personal data, in the same way as data are exchanged between Olaf and authorities of the Member States (17). The purpose of this exchange is limited to fraud, active and passive corruption and money laundering. Both Olaf and Europol shall take account, in each specific case, of the requirements of investigation secrecy and data protection. For Olaf this means in any event, ensuring the level of protection as set out in Regulation (EC) No 45/2001. |
| --- | --- |

44.

The proposal for a Council Decision is of a different nature. Article 22(3) provides for the exchange of information, including personal data, in the same way as data are exchanged between Olaf and authorities of the Member States (17). The purpose of this exchange is limited to fraud, active and passive corruption and money laundering. Both Olaf and Europol shall take account, in each specific case, of the requirements of investigation secrecy and data protection. For Olaf this means in any event, ensuring the level of protection as set out in Regulation (EC) No 45/2001.

| 45. | Moreover, Article 48 of the proposal lays down that Regulation (EC) No 1073/1999 (18) applies to Europol. Olaf shall have the power to carry out administrative investigations within Europol and shall to that effect have the right of immediate and unannounced access to any information held by Europol (19). According to the EDPS, the scope of this provision is not clear:






  — | it covers in any event investigations by Olaf on fraud, corruption, money laundering and other irregularities affecting the financial interests of the European Community, within Europol itself, |
| --- | --- | --- |

45.

Moreover, Article 48 of the proposal lays down that Regulation (EC) No 1073/1999 (18) applies to Europol. Olaf shall have the power to carry out administrative investigations within Europol and shall to that effect have the right of immediate and unannounced access to any information held by Europol (19). According to the EDPS, the scope of this provision is not clear:

—

it covers in any event investigations by Olaf on fraud, corruption, money laundering and other irregularities affecting the financial interests of the European Community, within Europol itself,

| — | it also implies that Regulation (EC) No 45/2001 applies to those investigations, including the supervision of the EDPS on the use by Olaf of its powers. |
| --- | --- |

—

it also implies that Regulation (EC) No 45/2001 applies to those investigations, including the supervision of the EDPS on the use by Olaf of its powers.

| 46. | However, the provision does not and should not cover investigations on irregularities outside Europol, on which data processed by Europol could shed additional light. The provisions for the exchange of information, including personal data, under Article 22(3) would be sufficient for those cases. The EDPS recommends clarifying the scope of Article 48 of the proposal in this sense. |
| --- | --- |

46.

However, the provision does not and should not cover investigations on irregularities outside Europol, on which data processed by Europol could shed additional light. The provisions for the exchange of information, including personal data, under Article 22(3) would be sufficient for those cases. The EDPS recommends clarifying the scope of Article 48 of the proposal in this sense.

V.   BRINGING EUROPOL IN LINE WITH OTHER BODIES OF THE EUROPEAN UNION, ESTABLISHED UNDER THE EC TREATY

The Staff of Europol

| 47. | The Staff of Europol will fall within the scope of the Staff Regulations. In case of processing of data relating to Europol Staff, both the substantive and the supervision rules of Regulation (EC) No 45/2001 should apply, for reasons of consistency and non discrimination. The 12th recital of the proposal mentions the applicability of the Regulation on the processing of personal data, notably as regards personal data related to Europol Staff. According to the EDPS, it is not enough to clarify this notion in the recitals. Recitals of a Community Act are of a non binding nature and shall not contain normative provisions (20). In order to fully ensure the application of Regulation (EC) No 45/2001, a paragraph should be added in the text of the decision itself — for instance in Article 38 — stating that Regulation (EC) No 45/2001 shall apply to processing of personal data relating to the Europol Staff. |
| --- | --- |

47.

The Staff of Europol will fall within the scope of the Staff Regulations. In case of processing of data relating to Europol Staff, both the substantive and the supervision rules of Regulation (EC) No 45/2001 should apply, for reasons of consistency and non discrimination. The 12th recital of the proposal mentions the applicability of the Regulation on the processing of personal data, notably as regards personal data related to Europol Staff. According to the EDPS, it is not enough to clarify this notion in the recitals. Recitals of a Community Act are of a non binding nature and shall not contain normative provisions (20). In order to fully ensure the application of Regulation (EC) No 45/2001, a paragraph should be added in the text of the decision itself — for instance in Article 38 — stating that Regulation (EC) No 45/2001 shall apply to processing of personal data relating to the Europol Staff.

Supervision on the data processing by Europol

| 48. | The proposal does not aim at a fundamental change of the system of supervision on Europol with a central role for the joint supervisory body. Under the proposed legal framework, the supervisory body will be established in conformity with Article 33 of the proposal. However, some changes in the status and activities of Europol will lead to a limited involvement of the EDPS, apart from his tasks relating to the Europol Staff. For this reason, Article 33(6) of the proposal lays down that the joint supervisory body must cooperate with the EDPS, as well as with other supervisory authorities. This provision mirrors the obligation for the EDPS to cooperate with the joint supervisory body under Article 46(f)(ii) of Regulation (EC) No 45/2001). The EDPS welcomes this provision as a useful instrument promoting a consistent approach on data on supervision throughout the EU, independently of the pillar. |
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48.

The proposal does not aim at a fundamental change of the system of supervision on Europol with a central role for the joint supervisory body. Under the proposed legal framework, the supervisory body will be established in conformity with Article 33 of the proposal. However, some changes in the status and activities of Europol will lead to a limited involvement of the EDPS, apart from his tasks relating to the Europol Staff. For this reason, Article 33(6) of the proposal lays down that the joint supervisory body must cooperate with the EDPS, as well as with other supervisory authorities. This provision mirrors the obligation for the EDPS to cooperate with the joint supervisory body under Article 46(f)(ii) of Regulation (EC) No 45/2001). The EDPS welcomes this provision as a useful instrument promoting a consistent approach on data on supervision throughout the EU, independently of the pillar.

| 49. | As said before, the present proposal does not foresee any fundamental change of the system of supervision. However, the wider context of this proposal might require more fundamental reflection on the future system of supervision on Europol. Two specific developments can be mentioned. In the first place, Articles 44-47 of Regulation (EC) No 1987/2006 (21) provide for a new structure of supervision on SIS II. In the second place, in the context of the Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters the German Presidency announced that it is considering a new structure for the supervision of European information systems under the third pillar, including Europol. |
| --- | --- |

49.

As said before, the present proposal does not foresee any fundamental change of the system of supervision. However, the wider context of this proposal might require more fundamental reflection on the future system of supervision on Europol. Two specific developments can be mentioned. In the first place, Articles 44-47 of Regulation (EC) No 1987/2006 (21) provide for a new structure of supervision on SIS II. In the second place, in the context of the Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters the German Presidency announced that it is considering a new structure for the supervision of European information systems under the third pillar, including Europol.

| 50. | According to the EDPS, this opinion is not the right occasion to discuss fundamental changes in the system of supervision. The system of supervision on SIS II as a networked system is grounded within the first pillar and would not be appropriate to Europol as a body within the third pillar which entails limited competences of Community institutions, in particular the Commission and the Court of Justice. In the absence of the safeguards under the third pillar, a specific system of supervision will still be needed. For example, Article 31 deals with appeals by individuals. Moreover, the ideas on a new structure for the supervision of European information systems as announced by the German Presidency are still in a very early stage. Finally, the present system functions well. |
| --- | --- |

50.

According to the EDPS, this opinion is not the right occasion to discuss fundamental changes in the system of supervision. The system of supervision on SIS II as a networked system is grounded within the first pillar and would not be appropriate to Europol as a body within the third pillar which entails limited competences of Community institutions, in particular the Commission and the Court of Justice. In the absence of the safeguards under the third pillar, a specific system of supervision will still be needed. For example, Article 31 deals with appeals by individuals. Moreover, the ideas on a new structure for the supervision of European information systems as announced by the German Presidency are still in a very early stage. Finally, the present system functions well.

| 51. | The EDPS will therefore focus his remarks on his role relating to the exchange of personal data between Europol and other bodies on the level of the European Union. Provisions relating to this exchange are an important new element of the proposal. Article 22(1) mentions Frontex, the European Central Bank, the EMCDDA (22) as well as Olaf. All of these bodies fall within the scope of the supervision by the EDPS. Article 22(2) states that Europol may conclude working arrangements with those bodies which may include the exchange of personal data. As far as Olaf is concerned, this exchange can even take place without working arrangements (Article 22(3)). Also, Article 48 of the proposal — discussed in points 45 and 46 — is relevant in this respect. |
| --- | --- |

51.

The EDPS will therefore focus his remarks on his role relating to the exchange of personal data between Europol and other bodies on the level of the European Union. Provisions relating to this exchange are an important new element of the proposal. Article 22(1) mentions Frontex, the European Central Bank, the EMCDDA (22) as well as Olaf. All of these bodies fall within the scope of the supervision by the EDPS. Article 22(2) states that Europol may conclude working arrangements with those bodies which may include the exchange of personal data. As far as Olaf is concerned, this exchange can even take place without working arrangements (Article 22(3)). Also, Article 48 of the proposal — discussed in points 45 and 46 — is relevant in this respect.

| 52. | It should be ensured that the EDPS can exercise the powers conferred to him under Regulation (EC) No 45/2001, with regard to data communicated by Community bodies. This is all the more important in cases of transfer of personal data where Europol will be regarded as a Community body as meant in Article 7 of Regulation (EC) No 45/2001, as proposed before. This makes the close cooperation with the joint supervisory body under Article 33 even more important. |
| --- | --- |

52.

It should be ensured that the EDPS can exercise the powers conferred to him under Regulation (EC) No 45/2001, with regard to data communicated by Community bodies. This is all the more important in cases of transfer of personal data where Europol will be regarded as a Community body as meant in Article 7 of Regulation (EC) No 45/2001, as proposed before. This makes the close cooperation with the joint supervisory body under Article 33 even more important.

| 53. | The EDPS has two additional recommendations to make, with regard to the data subjects' rights relating to those data:






  — | Article 30 of the proposal entails the right of the data subject to correct or delete incorrect data concerning him. Article 30(2) obliges Member States to correct or delete such data if they have been directly transmitted by them to Europol. A similar provision is needed as regards data communicated by a Community body supervised by the EDPS, in order to ensure that Europol and this Community body react similarly, |
| --- | --- | --- |

53.

The EDPS has two additional recommendations to make, with regard to the data subjects' rights relating to those data:

—

Article 30 of the proposal entails the right of the data subject to correct or delete incorrect data concerning him. Article 30(2) obliges Member States to correct or delete such data if they have been directly transmitted by them to Europol. A similar provision is needed as regards data communicated by a Community body supervised by the EDPS, in order to ensure that Europol and this Community body react similarly,

| — | Article 32(2) deals with the right of an individual to check the lawfulness of processing in cases whereby personal data have been communicated or are consulted by a Member State. A similar provision is needed as regards data communicated by a Community body supervised by the EDPS. |
| --- | --- |

—

Article 32(2) deals with the right of an individual to check the lawfulness of processing in cases whereby personal data have been communicated or are consulted by a Member State. A similar provision is needed as regards data communicated by a Community body supervised by the EDPS.

| 54. | By virtue of the aforementioned considerations, the EDPS should closely cooperate with the joint supervisory body, at least once the arrangements to exchange data with Community bodies will be in place. This is one of the main areas where the mutual obligations to cooperate will become effective. |
| --- | --- |

54.

By virtue of the aforementioned considerations, the EDPS should closely cooperate with the joint supervisory body, at least once the arrangements to exchange data with Community bodies will be in place. This is one of the main areas where the mutual obligations to cooperate will become effective.

Consultation of data protection authorities

| 55. | Article 10(3) provides for a Council Decision determining the conditions for the establishment of certain systems for the processing of personal data by Europol. The EDPS recommends adding the obligation to consult the EDPS and the joint supervisory body before the adoption of such a decision. |
| --- | --- |

55.

Article 10(3) provides for a Council Decision determining the conditions for the establishment of certain systems for the processing of personal data by Europol. The EDPS recommends adding the obligation to consult the EDPS and the joint supervisory body before the adoption of such a decision.

| 56. | Article 22 deals with the relations of Europol with other Community or Union related bodies and agencies. The cooperative relations mentioned in this Article may be implemented through working arrangements and may concern the exchange of personal data. For this reason, the EDPS and the joint supervisory body should be consulted upon the adoption of the arrangements under Article 22, as far as these agreements are relevant to the protection of personal data processed by Community institutions and bodies. The EDPS recommends amending the text of the proposal accordingly. |
| --- | --- |

56.

Article 22 deals with the relations of Europol with other Community or Union related bodies and agencies. The cooperative relations mentioned in this Article may be implemented through working arrangements and may concern the exchange of personal data. For this reason, the EDPS and the joint supervisory body should be consulted upon the adoption of the arrangements under Article 22, as far as these agreements are relevant to the protection of personal data processed by Community institutions and bodies. The EDPS recommends amending the text of the proposal accordingly.

| 57. | Article 25(2) states that implementing rules for the exchanges with other Community or Union related bodies and agencies shall be laid down. The EDPS recommends that not only the joint supervisory body, but also the EDPS should be consulted prior to the adoption of such rules, in line with the practice under Community law that Community bodies consult the EDPS under Article 28(1) of Regulation (EC) No 45/2001. |
| --- | --- |

57.

Article 25(2) states that implementing rules for the exchanges with other Community or Union related bodies and agencies shall be laid down. The EDPS recommends that not only the joint supervisory body, but also the EDPS should be consulted prior to the adoption of such rules, in line with the practice under Community law that Community bodies consult the EDPS under Article 28(1) of Regulation (EC) No 45/2001.

Data Protection Officer

| 58. | The EDPS welcomes Article 27 that contains a provision on a Data Protection Officer (DPO) who will inter alia have the task of ensuring, in an independent manner, the lawfulness and compliance with the provisions on the processing of personal data. This function has been successfully introduced on the Community level by Regulation (EC) No 45/2001, within Community institutions and bodies. Within Europol, the function of DPO is also being exercised, however without adequate legal basis to date. |
| --- | --- |

58.

The EDPS welcomes Article 27 that contains a provision on a Data Protection Officer (DPO) who will inter alia have the task of ensuring, in an independent manner, the lawfulness and compliance with the provisions on the processing of personal data. This function has been successfully introduced on the Community level by Regulation (EC) No 45/2001, within Community institutions and bodies. Within Europol, the function of DPO is also being exercised, however without adequate legal basis to date.

| 59. | For the success of the functioning of the DPO it is essential that his independence is effectively guaranteed by law. For this reason, Article 24 of Regulation (EC) No 45/2001 contains several provisions ensuring this objective. The DPO is appointed for a certain period and can only be dismissed under very exceptional circumstances. He will be provided with the necessary staff and budget. He may not receive instructions in the performance of his duties. |
| --- | --- |

59.

For the success of the functioning of the DPO it is essential that his independence is effectively guaranteed by law. For this reason, Article 24 of Regulation (EC) No 45/2001 contains several provisions ensuring this objective. The DPO is appointed for a certain period and can only be dismissed under very exceptional circumstances. He will be provided with the necessary staff and budget. He may not receive instructions in the performance of his duties.

| 60. | Unfortunately, these provisions are not included in the present proposal, except for the provision on taking instructions. The EDPS therefore strongly recommends including the guarantees concerning the independence of the DPO, such as the special safeguards for the appointment and the dismissal of the DPO, and his independence towards the Management Board. These provisions are necessary to ensure the independence of the DPO. Moreover, these provisions would bring the position of the DPO of Europol more in line with the position of the DPOs within Community institutions. Finally, the EDPS emphasises that Article 27(5) of the proposal that urges the Management Board of Europol to adopt implementing rules on certain aspects of the functioning of the DPO is by nature not appropriate as guarantee for the independence of the DPO. It has to be kept in mind that independence is above all needed towards the management of Europol. |
| --- | --- |

60.

Unfortunately, these provisions are not included in the present proposal, except for the provision on taking instructions. The EDPS therefore strongly recommends including the guarantees concerning the independence of the DPO, such as the special safeguards for the appointment and the dismissal of the DPO, and his independence towards the Management Board. These provisions are necessary to ensure the independence of the DPO. Moreover, these provisions would bring the position of the DPO of Europol more in line with the position of the DPOs within Community institutions. Finally, the EDPS emphasises that Article 27(5) of the proposal that urges the Management Board of Europol to adopt implementing rules on certain aspects of the functioning of the DPO is by nature not appropriate as guarantee for the independence of the DPO. It has to be kept in mind that independence is above all needed towards the management of Europol.

| 61. | There is one more reason for harmonising the provision of the DPO in the Council decision with Article 24 of Regulation (EC) No 45/2001. With respect of the personal data of the Staff of Europol (see point 47), this Regulation applies, which means that for these matters the DPO of Europol will fall under this Regulation. In any event, a DPO should be appointed in accordance with the requirements of the Regulation. |
| --- | --- |

61.

There is one more reason for harmonising the provision of the DPO in the Council decision with Article 24 of Regulation (EC) No 45/2001. With respect of the personal data of the Staff of Europol (see point 47), this Regulation applies, which means that for these matters the DPO of Europol will fall under this Regulation. In any event, a DPO should be appointed in accordance with the requirements of the Regulation.

| 62. | Furthermore, the EDPS recommends applying the system of prior checking as provided for in Article 27 of Regulation (EC) No 45/2001 for Community bodies to Europol. The system of prior checking has proved to be an effective instrument and plays an essential role in data protection within the Community institutions and bodies. |
| --- | --- |

62.

Furthermore, the EDPS recommends applying the system of prior checking as provided for in Article 27 of Regulation (EC) No 45/2001 for Community bodies to Europol. The system of prior checking has proved to be an effective instrument and plays an essential role in data protection within the Community institutions and bodies.

| 63. | Finally, it would be useful for the DPO of Europol to participate in the existing DPO-network in the first pillar, even apart of the activities of the DPO in respect of the Staff of Europol. This would further ensure an approach on data protection issues common to the approach taken by the Community bodies and would perfectly conform with the objective formulated in the 16th Recital of the proposal, namely the cooperation with European bodies and agencies ensuring an adequate level of data protection in conformity with Regulation (EC) No 45/2001. The EDPS recommends adding a sentence to the recitals of the proposals in which the objective of this common approach is laid down. Such a sentence could read as follows. ‘In carrying out his tasks, the Data Protection Officer will cooperate with the Data Protection Officers appointed under Community law.’ |
| --- | --- |

63.

Finally, it would be useful for the DPO of Europol to participate in the existing DPO-network in the first pillar, even apart of the activities of the DPO in respect of the Staff of Europol. This would further ensure an approach on data protection issues common to the approach taken by the Community bodies and would perfectly conform with the objective formulated in the 16th Recital of the proposal, namely the cooperation with European bodies and agencies ensuring an adequate level of data protection in conformity with Regulation (EC) No 45/2001. The EDPS recommends adding a sentence to the recitals of the proposals in which the objective of this common approach is laid down. Such a sentence could read as follows. ‘In carrying out his tasks, the Data Protection Officer will cooperate with the Data Protection Officers appointed under Community law.’

VI.   CONCLUSIONS

| 64. | The EDPS understands the need for a new and more flexible legal basis for Europol, but pays specific attention to the substantive changes, the applicable laws on data protection and the growing similarities between Europol and Community bodies. |
| --- | --- |

64.

The EDPS understands the need for a new and more flexible legal basis for Europol, but pays specific attention to the substantive changes, the applicable laws on data protection and the growing similarities between Europol and Community bodies.

| 65. | As to the substantive changes, the EDPS recommends:






  — | including specific conditions and limitations in the text of the decision with respect to information and intelligence coming from private parties, inter alia in order to ensure the accuracy of this information since these are personal data that have been collected for commercial purposes in a commercial environment, |
| --- | --- | --- |

65.

As to the substantive changes, the EDPS recommends:

—

including specific conditions and limitations in the text of the decision with respect to information and intelligence coming from private parties, inter alia in order to ensure the accuracy of this information since these are personal data that have been collected for commercial purposes in a commercial environment,

| — | ensuring that processing of personal data whose relevance have not yet been assessed is strictly limited to the purpose of assessing its relevance. These data should be stored in separate databases until the relevance to a specific task of Europol is established, for no longer than 6 months, |
| --- | --- |

—

ensuring that processing of personal data whose relevance have not yet been assessed is strictly limited to the purpose of assessing its relevance. These data should be stored in separate databases until the relevance to a specific task of Europol is established, for no longer than 6 months,

| — | as to interoperability with other processing systems outside of Europol, applying strict conditions and guarantees, when the interlinking with another database is actually put in place, |
| --- | --- |

—

as to interoperability with other processing systems outside of Europol, applying strict conditions and guarantees, when the interlinking with another database is actually put in place,

| — | including safeguards for the access to the data of persons who have not (yet) committed a crime. The safeguards given under the Europol Convention should not be weakened, |
| --- | --- |

—

including safeguards for the access to the data of persons who have not (yet) committed a crime. The safeguards given under the Europol Convention should not be weakened,

| — | ensuring that the need for continued storage of personal data relating to individuals should be reviewed every year and the review documented, |
| --- | --- |

—

ensuring that the need for continued storage of personal data relating to individuals should be reviewed every year and the review documented,

| — | computerised access and retrieval of data from other national and international information systems should be allowed only on a case by case basis, under strict conditions, |
| --- | --- |

—

computerised access and retrieval of data from other national and international information systems should be allowed only on a case by case basis, under strict conditions,

| — | as to the right of access: the reference to national law in Article 29(3) should be deleted and be replaced by harmonised rules on scope, substance and procedure preferably in the Council Framework Decision on the protection of personal data or, where necessary, in the Council Decision. Article 29(4) should be reworded and only allow refusal of access only ‘if such refusal is necessary to’. The consultation mechanism laid down in Article 29(5) should be deleted. |
| --- | --- |

—

as to the right of access: the reference to national law in Article 29(3) should be deleted and be replaced by harmonised rules on scope, substance and procedure preferably in the Council Framework Decision on the protection of personal data or, where necessary, in the Council Decision. Article 29(4) should be reworded and only allow refusal of access only ‘if such refusal is necessary to’. The consultation mechanism laid down in Article 29(5) should be deleted.

| 66. | The present Council Decision should not be adopted before the adoption by Council of a framework on data protection, guaranteeing an appropriate level of data protection in conformity with the conclusions of the EDPS in his two opinions on the Commission proposal for a Council Framework Decision. Data based on opinions should be distinguished from data based on facts. A distinction should be made between data of categories of persons, based on their possible involvement in a criminal offence. |
| --- | --- |

66.

The present Council Decision should not be adopted before the adoption by Council of a framework on data protection, guaranteeing an appropriate level of data protection in conformity with the conclusions of the EDPS in his two opinions on the Commission proposal for a Council Framework Decision. Data based on opinions should be distinguished from data based on facts. A distinction should be made between data of categories of persons, based on their possible involvement in a criminal offence.

| 67. | The EDPS suggest adding a paragraph to Article 22 reading as follows: ‘Where personal data are transferred by Community institutions or bodies, Europol shall be regarded as a Community body as meant in Article 7 of Regulation (EC) No 45/2001’. |
| --- | --- |

67.

The EDPS suggest adding a paragraph to Article 22 reading as follows: ‘Where personal data are transferred by Community institutions or bodies, Europol shall be regarded as a Community body as meant in Article 7 of Regulation (EC) No 45/2001’.

| 68. | Article 48 of the proposal on investigations by Olaf should not cover investigations on irregularities outside Europol, on which data processed by Europol could shed additional light. The EDPS recommends clarifying the scope of Article 48 of the proposal. |
| --- | --- |

68.

Article 48 of the proposal on investigations by Olaf should not cover investigations on irregularities outside Europol, on which data processed by Europol could shed additional light. The EDPS recommends clarifying the scope of Article 48 of the proposal.

| 69. | In order to fully ensure the application of Regulation (EC) No 45/2001, a paragraph should be added in the text of the decision stating that Regulation (EC) No 45/2001 shall apply to processing of personal data relating to the Europol Staff. |
| --- | --- |

69.

In order to fully ensure the application of Regulation (EC) No 45/2001, a paragraph should be added in the text of the decision stating that Regulation (EC) No 45/2001 shall apply to processing of personal data relating to the Europol Staff.

| 70. | The scope of two provisions on the rights of the data subjects (Article 30(2) and Article 32(2)) should be extended to data communicated by a Community body supervised by the EDPS, in order to ensure that Europol and this Community body react similarly. |
| --- | --- |

70.

The scope of two provisions on the rights of the data subjects (Article 30(2) and Article 32(2)) should be extended to data communicated by a Community body supervised by the EDPS, in order to ensure that Europol and this Community body react similarly.

| 71. | Articles 10(3), 22 and 25(2) should contain (more precise) provision on consultation of data protection authorities. |
| --- | --- |

71.

Articles 10(3), 22 and 25(2) should contain (more precise) provision on consultation of data protection authorities.

| 72. | The EDPS strongly recommends including the guarantees concerning the independence of the DPO, such as the special safeguards for the appointment and the dismissal of the DPO, and his independence towards the Management Board, in conformity with Regulation (EC) No 45/2001. |
| --- | --- |

72.

The EDPS strongly recommends including the guarantees concerning the independence of the DPO, such as the special safeguards for the appointment and the dismissal of the DPO, and his independence towards the Management Board, in conformity with Regulation (EC) No 45/2001.

Done at Brussels, 16 February 2007.

Peter HUSTINX

European Data Protection Supervisor

---

(1)  OJ L 281, 23.11.1995, p. 31.

1

(2)  OJ L 8, 12.1.2001, p. 1.

2

(3)  In accordance with the practice of the Commission in other (recent) cases. See, most recently, the Opinion of the EDPS of 12 December 2006 on proposals for amending the Financial Regulation applicable to the general budget of the European Communities and its Implementing Rules (COM(2006) 213 final and SEC(2006) 866 final), published on: www.edps.europa.eu

3

(4)  OJ C 316, 27.7.1995, p. 1.

4

(5)  The entry into force is foreseen for March/April 2007.

5

(6)  Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union (OJ L 386, 29.12.2006, p. 89).

6

(7)  This is a selection of the main issues mentioned in the EDPS-opinion on SIS II, based on their relevance for the present proposal. See: Opinion of 19 October 2005 on three Proposals regarding the Second Generation Schengen Information System (SIS II), (COM(2005) 230 final, COM(2005) 236 final and COM(2005) 237 final) (OJ C 91, 19.4.2006, p. 38).

7

(8)  This new text can probably be expected by March 2007.

8

(9)  Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ L 190, 18.7.2002, p. 1).

9

(10)  See, in this respect, the Opinion of 26 September 2005 on the Proposal for a Directive of the European Parliament and of the Council on the retention of data processed in connection with the provision of public electronic communication services and amending Directive 2002/58/EC (COM(2005) 438 final) (OJ C 298, 29.11.2005, p. 1).

10

(11)  See also similar recommendations in the Opinion of 19 December 2005 on the Proposal for a Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters (COM(2005) 475 final) (OJ C 47, 25.2.2006, p. 27).

11

(12)  This is the maximum storage period laid down in Article 6a of the Europol Convention after inclusion of the amendments by the three protocols mentioned in point 2.

12

(13)  Comments of 10 March 2006, published on EDPS website.

13

(14)  As laid down in the Europol Convention after inclusion of the amendments by the three protocols mentioned in point 2.

14

(15)  Opinion of 20 January 2006 on the Proposal for a Council Decision concerning access for consultation of the Visa Information System (VIS) by the authorities of Member States responsible for internal security and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences (COM(2005) 600 final) (OJ C 97, 25.4.2006, p. 6).

15

(16)  Opinion of 19 December 2005 (OJ C 47, 25.2.2006, p. 27) and Second Opinion of 29 November 2006, not yet published in OJ (can be found on: www.edps.europa.eu).

16

(17)  Based on Article 7 of the Second Protocol to the Convention on the protection of the European Communities' financial interests (OJ C 221, 19.7.1997, p. 12).

17

(18)  Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (OJ L 136, 31.5.1999, p. 1).

18

(19)  See Articles 1(3) and 4(2) of the Regulation.

19

(20)  See, for instance, Interinstitutional Agreement of 22 December 1998 on common guidelines for the quality of drafting of Community legislation (OJ C 73, 17.3.1999, p. 1), guideline 10.

20

(21)  Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ L 381, 28.12.2006, p. 4).

21

(22)  European Monitoring Centre for Drugs and Drug Addiction.

22

---

II Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

| 27.10.2007 | EN | Official Journal of the European Union | C 255/22 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/22

---

Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty

Cases where the Commission raises no objections

(Text with EEA relevance)

(2007/C 255/03)

| Date of adoption of the decision | 27.6.2007 |
| --- | --- |
| Reference number of the aid | N 558/05 |
| Member State | Poland |
| Region | — |
| Title (and/or name of the beneficiary) | Wsparcie dla zakładów aktywności zawodowej |
| Legal basis | Art. 25, art. 29 ust. 3 i art. 31 ust. 1 ustawy o rehabilitacji z dnia 27 sierpnia 1977 r. o rehabilitacji zawodowej i społecznej oraz zatrudniania osób niepełnosprawnych (Dz.U. nr 123, poz 776 z późn. zm.); art. 7 ust. 2 pkt 4 ustawy z dnia 12 stycznia 1991 r. o podatkach i opłatach lokalnych (Dz.U. z 2002 r. nr 9, poz. 84); art. 7 ust. 2 pkt 4 ustawy z dnia 30 października 2002 r. o podatku leśnym (Dz.U. nr 200, poz. 1682 ze zm.); art. 12 ust.2 pkt 4 ustawy z dnia 15 listopada 1984 r. o podatku rolnym (DzU. nr 94. poz. 431); art..38 ust. 2 ustawy 26 lipca 1991 r. o podatku dochodowym od osób fizycznych (Dz.U. nr 14, poz. 176). |
| Type of measure | — |
| Objective | Social support to individual consumers |
| Form of aid | — |
| Budget | Annual budget: PLN 17 542 636 million |
| Intensity | Measure does not constitute aid |
| Duration | — |
| Economic sectors | — |
| Name and address of the granting authority | — |
| Other information | — |

Date of adoption of the decision

27.6.2007

Reference number of the aid

N 558/05

Member State

Poland

Region

—

Title (and/or name of the beneficiary)

Wsparcie dla zakładów aktywności zawodowej

Legal basis

Art. 25, art. 29 ust. 3 i art. 31 ust. 1 ustawy o rehabilitacji z dnia 27 sierpnia 1977 r. o rehabilitacji zawodowej i społecznej oraz zatrudniania osób niepełnosprawnych (Dz.U. nr 123, poz 776 z późn. zm.); art. 7 ust. 2 pkt 4 ustawy z dnia 12 stycznia 1991 r. o podatkach i opłatach lokalnych (Dz.U. z 2002 r. nr 9, poz. 84); art. 7 ust. 2 pkt 4 ustawy z dnia 30 października 2002 r. o podatku leśnym (Dz.U. nr 200, poz. 1682 ze zm.); art. 12 ust.2 pkt 4 ustawy z dnia 15 listopada 1984 r. o podatku rolnym (DzU. nr 94. poz. 431); art..38 ust. 2 ustawy 26 lipca 1991 r. o podatku dochodowym od osób fizycznych (Dz.U. nr 14, poz. 176).

Type of measure

—

Objective

Social support to individual consumers

Form of aid

—

Budget

Annual budget: PLN 17 542 636 million

Intensity

Measure does not constitute aid

Duration

—

Economic sectors

—

Name and address of the granting authority

—

Other information

—

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 31.8.2007 |
| --- | --- |
| Reference number of the aid | N 79/07 |
| Member State | Spain |
| Region | — |
| Title (and/or name of the beneficiary) | Ayudas a Proyectos de Investigación, Desarrollo e Innovación dirigidos al uso y gestión de los recursos naturales y las conservación de los hábitats y ecosistemas |
| Legal basis | Proyecto de Orden por la que se establecen las bases reguladoras para la concesión de subvenciones en la Acción Estratégica para el uso y gestión de los recursos naturales y la conservación de los hábitats y ecosistemas, correspondientes al Programa Nacional de Ciencias y Tecnologías Medioambientales, en el marco del Plan Nacional de Investigación Científica, Desarrollo e Innovación Tecnológica 2004-2007 |
| Type of measure | Aid scheme |
| Objective | Research and development |
| Form of aid | Direct grant |
| Budget | Annual budget: 2007: EUR 12,5 — 2008: EUR 8,75 — 2009: EUR 7,5 million; Overall budget: EUR 28,75 million |
| Intensity | 50 %-25 % |
| Duration | Until 2009 |
| Economic sectors | — |
| Name and address of the granting authority | Ministerio de Medio Ambiente |
| Plaza de San Juan de la Cruz, s/n |
| E-28071 Madrid |

Date of adoption of the decision

31.8.2007

Reference number of the aid

N 79/07

Member State

Spain

Region

—

Title (and/or name of the beneficiary)

Ayudas a Proyectos de Investigación, Desarrollo e Innovación dirigidos al uso y gestión de los recursos naturales y las conservación de los hábitats y ecosistemas

Legal basis

Proyecto de Orden por la que se establecen las bases reguladoras para la concesión de subvenciones en la Acción Estratégica para el uso y gestión de los recursos naturales y la conservación de los hábitats y ecosistemas, correspondientes al Programa Nacional de Ciencias y Tecnologías Medioambientales, en el marco del Plan Nacional de Investigación Científica, Desarrollo e Innovación Tecnológica 2004-2007

Type of measure

Aid scheme

Objective

Research and development

Form of aid

Direct grant

Budget

Annual budget: 2007: EUR 12,5 — 2008: EUR 8,75 — 2009: EUR 7,5 million; Overall budget: EUR 28,75 million

Intensity

50 %-25 %

Duration

Until 2009

Economic sectors

—

Name and address of the granting authority

Ministerio de Medio Ambiente

Plaza de San Juan de la Cruz, s/n

E-28071 Madrid

Other information

—

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

---

| 27.10.2007 | EN | Official Journal of the European Union | C 255/24 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/24

---

Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty

Cases where the Commission raises no objections

(2007/C 255/04)

| Date of adoption of the decision | 30.7.2007 |
| --- | --- |
| Reference number of the aid | N 21/07 |
| Member State | Spain |
| Region | Murcia |
| Title (and/or name of the beneficiary) | Ayudas para paliar los daños producidos en los cultivos de olivar y viñedos en los municipios de Jumilla y Yecla por las heladas de enero de 2006 |
| Legal basis | Orden de 11 de octubre de 2006 de la Consejería de Agricultura |
| Type of measure | Aid scheme |
| Objective | To compensate losses due to adverse weather conditions |
| Form of aid | Direct grant |
| Budget | EUR 1 800 000 |
| Intensity | 100 % maximum |
| Duration | Ad hoc |
| Economic sectors | Agriculture |
| Name and address of the granting authority | Consejería de Agricultura y Agua
  Comunidad Autónoma de la Región de Murcia |
| Other information | — |

Date of adoption of the decision

30.7.2007

Reference number of the aid

N 21/07

Member State

Spain

Region

Murcia

Title (and/or name of the beneficiary)

Ayudas para paliar los daños producidos en los cultivos de olivar y viñedos en los municipios de Jumilla y Yecla por las heladas de enero de 2006

Legal basis

Orden de 11 de octubre de 2006 de la Consejería de Agricultura

Type of measure

Aid scheme

Objective

To compensate losses due to adverse weather conditions

Form of aid

Direct grant

Budget

EUR 1 800 000

Intensity

100 % maximum

Duration

Ad hoc

Economic sectors

Agriculture

Name and address of the granting authority

Consejería de Agricultura y Agua

Comunidad Autónoma de la Región de Murcia

Other information

—

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 20.8.2007 |
| --- | --- |
| Reference number of the aid | N 62/07 |
| Member State | Spain |
| Region | Galicia |
| Title (and/or name of the beneficiary) | Ayudas para la reparación de daños causados en el sector agrario por las inundaciones acaecidas en octubre y noviembre de 2006 |
| Legal basis | Ordenes de noviembre de 2006 y diciembre de 2006, por las que se dictan disposiciones para el desarrollo en el sector agrario de los Decretos no 180/2006 y 227/2006, de medidas urgentes de ayuda para la reparación de los daños causados por las inundaciones en los meses de octubre y noviembre |
| Type of measure | Aid scheme |
| Objective | To compensate losses resulting from an exceptional occurrence |
| Form of aid | Direct grant |
| Budget | EUR 900 000 |
| Intensity | 100 % maximum |
| Duration | Ad hoc |
| Economic sectors | Agriculture |
| Name and address of the granting authority | Consejería del Medio Rural
  Xunta de Galicia |
| Other information | — |

Date of adoption of the decision

20.8.2007

Reference number of the aid

N 62/07

Member State

Spain

Region

Galicia

Title (and/or name of the beneficiary)

Ayudas para la reparación de daños causados en el sector agrario por las inundaciones acaecidas en octubre y noviembre de 2006

Legal basis

Ordenes de noviembre de 2006 y diciembre de 2006, por las que se dictan disposiciones para el desarrollo en el sector agrario de los Decretos no 180/2006 y 227/2006, de medidas urgentes de ayuda para la reparación de los daños causados por las inundaciones en los meses de octubre y noviembre

Type of measure

Aid scheme

Objective

To compensate losses resulting from an exceptional occurrence

Form of aid

Direct grant

Budget

EUR 900 000

Intensity

100 % maximum

Duration

Ad hoc

Economic sectors

Agriculture

Name and address of the granting authority

Consejería del Medio Rural

Xunta de Galicia

Other information

—

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 25.7.2007 |
| --- | --- |
| Reference number of the aid | N 83/07 |
| Member State | Spain |
| Region | Murcia |
| Title (and/or name of the beneficiary) | Programas de colaboración para la formación y transferencia tecnológica del sector agroalimentario y del medio rural |
| Legal basis | Orden de 19 de diciembre de 2006, de la Consejería de Agricultura y Agua, por la que se establecen las bases reguladoras y la convocatoria para el año 2007 de las líneas de ayuda para programas de colaboración para la formación y transferencia tecnológica del sector agroalimentario y del medio rural |
| Type of measure | Aid scheme |
| Objective | — |
| Form of aid | Direct grant |
| Budget | EUR 961 695 |
| Intensity | 100 %-75 % |
| Duration | 2007 |
| Economic sectors | Agriculture |
| Name and address of the granting authority | Consejería de Agricultura y de Agua
  Comunidad Autónoma de la Región de Murcia |
| Other information | — |

Date of adoption of the decision

25.7.2007

Reference number of the aid

N 83/07

Member State

Spain

Region

Murcia

Title (and/or name of the beneficiary)

Programas de colaboración para la formación y transferencia tecnológica del sector agroalimentario y del medio rural

Legal basis

Orden de 19 de diciembre de 2006, de la Consejería de Agricultura y Agua, por la que se establecen las bases reguladoras y la convocatoria para el año 2007 de las líneas de ayuda para programas de colaboración para la formación y transferencia tecnológica del sector agroalimentario y del medio rural

Type of measure

Aid scheme

Objective

—

Form of aid

Direct grant

Budget

EUR 961 695

Intensity

100 %-75 %

Duration

2007

Economic sectors

Agriculture

Name and address of the granting authority

Consejería de Agricultura y de Agua

Comunidad Autónoma de la Región de Murcia

Other information

—

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 19.7.2007 |
| --- | --- |
| Reference number of the aid | N 143/07 |
| Member State | Italy |
| Region | Marche |
| Title (and/or name of the beneficiary) | Interventi di soccorso nelle zone agricole danneggiate da calamità naturali (piogge alluvionali dal 16 al 26 settembre 2006 nella provincia di Ancona) |
| Legal basis | Decreto legislativo n. 102/2004 |
| Type of measure | Aid scheme |
| Objective | To compensate for damage to farm structures as a result of bad weather |
| Form of aid | Direct grant |
| Budget | See the approved scheme (NN 54/A/04) |
| Intensity | Up to 100 % |
| Duration | Until the final payment is made |
| Economic sectors | Agriculture |
| Name and address of the granting authority | Ministero delle Politiche agricole e forestali |
| Via XX settembre, 20 |
| I-00187 Roma |

Date of adoption of the decision

19.7.2007

Reference number of the aid

N 143/07

Member State

Italy

Region

Marche

Title (and/or name of the beneficiary)

Interventi di soccorso nelle zone agricole danneggiate da calamità naturali (piogge alluvionali dal 16 al 26 settembre 2006 nella provincia di Ancona)

Legal basis

Decreto legislativo n. 102/2004

Type of measure

Aid scheme

Objective

To compensate for damage to farm structures as a result of bad weather

Form of aid

Direct grant

Budget

See the approved scheme (NN 54/A/04)

Intensity

Up to 100 %

Duration

Until the final payment is made

Economic sectors

Agriculture

Name and address of the granting authority

Ministero delle Politiche agricole e forestali

Via XX settembre, 20

I-00187 Roma

Other information

Measure applying the scheme approved by the Commission under State aid NN 54/A/04 (Commission letter C(2005) 1622 final, dated 7 June 2005)

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 19.7.2007 |
| --- | --- |
| Reference number of the aid | N 164/07 |
| Member State | Ireland |
| Region | — |
| Title (and/or name of the beneficiary) | Scheme of Investment Aid for the Development of the Potato Sector 2007-2013 |
| Legal basis | National Development Plan 2007-2013 |
| Type of measure | Scheme |
| Objective | Support for investments in equipment and facilities for the production, storage and marketing of potatoes other than starch potatoes |
| Form of aid | Direct grant |
| Budget | EUR 8 million |
| Intensity | 40 %
  50 % for young farmers |
| Duration | Date of Commission letter until 31.12.2013 |
| Economic sectors | NACE code
  A001 — Agriculture, hunting and related service activities |
| Name and address of the granting authority | Department of Agriculture and Food |
| Agriculture House |
| Kildare Street |
| Dublin 2 |
| Ireland |

Date of adoption of the decision

19.7.2007

Reference number of the aid

N 164/07

Member State

Ireland

Region

—

Title (and/or name of the beneficiary)

Scheme of Investment Aid for the Development of the Potato Sector 2007-2013

Legal basis

National Development Plan 2007-2013

Type of measure

Scheme

Objective

Support for investments in equipment and facilities for the production, storage and marketing of potatoes other than starch potatoes

Form of aid

Direct grant

Budget

EUR 8 million

Intensity

40 %

50 % for young farmers

Duration

Date of Commission letter until 31.12.2013

Economic sectors

NACE code

A001 — Agriculture, hunting and related service activities

Name and address of the granting authority

Department of Agriculture and Food

Agriculture House

Kildare Street

Dublin 2

Ireland

Other information

—

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 19.7.2007 |
| --- | --- |
| Reference number of the aid | N 193/07 |
| Member State | Spain |
| Region | Galicia |
| Title (and/or name of the beneficiary) | Ayudas al sector forestal — Fomento de las frondosas caducifolias |
| Legal basis | Orden de la Conselleria do Medio Rural de la Xunta de Galicia por la que se establecen las bases y se convocan para el año 2007 las ayudas para el fomento de las frondosas caducifolias |
| Type of measure | Aid scheme |
| Objective | — |
| Form of aid | Direct grant |
| Budget | EUR 9 000 000 |
| Intensity | 70 % maximum |
| Duration | 2007-2012 |
| Economic sectors | Agriculture |
| Name and address of the granting authority | Consejería del Medio Rural
  Comunidad Autónoma de Galicia |
| Other information | — |

Date of adoption of the decision

19.7.2007

Reference number of the aid

N 193/07

Member State

Spain

Region

Galicia

Title (and/or name of the beneficiary)

Ayudas al sector forestal — Fomento de las frondosas caducifolias

Legal basis

Orden de la Conselleria do Medio Rural de la Xunta de Galicia por la que se establecen las bases y se convocan para el año 2007 las ayudas para el fomento de las frondosas caducifolias

Type of measure

Aid scheme

Objective

—

Form of aid

Direct grant

Budget

EUR 9 000 000

Intensity

70 % maximum

Duration

2007-2012

Economic sectors

Agriculture

Name and address of the granting authority

Consejería del Medio Rural

Comunidad Autónoma de Galicia

Other information

—

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 27.7.2007 |
| --- | --- |
| Reference number of the aid | N 204/07 |
| Member State | United Kingdom |
| Region | England |
| Title (and/or name of the beneficiary) | The English Woodland Grants Scheme 2005 — Woodland Regeneration Grant |
| Legal basis | The Forestry Act 1979 |
| Type of measure | Scheme |
| Objective | Promoting the ecological, protective and recreational functions of forests |
| Form of aid | Grant |
| Budget | GBP 10 million (EUR 14,8 million) |
| Intensity | Up to 45 % |
| Duration | Date of Commission approval until 31 December 2012 |
| Economic sectors | Forestry and logging |
| Name and address of the granting authority | Forestry Commission England |
| Great Eastern House |
| Tenison Road |
| Cambridge CB1 2DU |
| United Kingdom |

Date of adoption of the decision

27.7.2007

Reference number of the aid

N 204/07

Member State

United Kingdom

Region

England

Title (and/or name of the beneficiary)

The English Woodland Grants Scheme 2005 — Woodland Regeneration Grant

Legal basis

The Forestry Act 1979

Type of measure

Scheme

Objective

Promoting the ecological, protective and recreational functions of forests

Form of aid

Grant

Budget

GBP 10 million (EUR 14,8 million)

Intensity

Up to 45 %

Duration

Date of Commission approval until 31 December 2012

Economic sectors

Forestry and logging

Name and address of the granting authority

Forestry Commission England

Great Eastern House

Tenison Road

Cambridge CB1 2DU

United Kingdom

Other information

—

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 8.8.2007 |
| --- | --- |
| Reference number of the aid | N 219/07 |
| Member State | Ireland |
| Region | — |
| Title (and/or name of the beneficiary) | Conservation of Plant and Animal Genetic Resources Scheme |
| Legal basis | Council Regulation (EC) No 1467/94 on the conservation, characterization, collection and utilization of genetic resources in agriculture. Funding is provided for annually in the National Budgetary Estimates process |
| Type of measure | Aid scheme |
| Objective | Conservation of genetic resources |
| Form of aid | Direct grant |
| Budget | Total budget of EUR 1,05 million |
| Intensity | — |
| Duration | 2007-2013 |
| Economic sectors | Agriculture |
| Name and address of the granting authority | Department of Agriculture and Food |
| Maynooth Business Campus |
| Maynooth |
| Co. Kildare |
| Ireland |

Date of adoption of the decision

8.8.2007

Reference number of the aid

N 219/07

Member State

Ireland

Region

—

Title (and/or name of the beneficiary)

Conservation of Plant and Animal Genetic Resources Scheme

Legal basis

Council Regulation (EC) No 1467/94 on the conservation, characterization, collection and utilization of genetic resources in agriculture. Funding is provided for annually in the National Budgetary Estimates process

Type of measure

Aid scheme

Objective

Conservation of genetic resources

Form of aid

Direct grant

Budget

Total budget of EUR 1,05 million

Intensity

—

Duration

2007-2013

Economic sectors

Agriculture

Name and address of the granting authority

Department of Agriculture and Food

Maynooth Business Campus

Maynooth

Co. Kildare

Ireland

Other information

—

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 20.8.2007 |
| --- | --- |
| Reference number of the aid | N 271/07 |
| Member State | France |
| Region | — |
| Title (and/or name of the beneficiary) | Aides en faveur de la recherche et du développement dans les filières grandes cultures |
| Legal basis | L 611.1 et L 621.1 et suivants du Code Rural |
| Type of measure | Aid scheme |
| Objective | Aid for basic research |
| Form of aid | Direct grant |
| Budget | Annual expenditure: EUR 6 million
  Overall amount: EUR 42 million |
| Intensity | 80 % on average, and 100 % in exceptional cases |
| Duration | 2007-2013 |
| Economic sectors | Agriculture — arable crops (cereals-rice, oilseeds-fats of vegetable origin, protein plants — dried vegetables, dried fodder, textile plants and silkworms, sugar) |
| Name and address of the granting authority | ONIGC |
| 12, rue Rol-Tanguy |
| F-93555 Montreuil sous Bois Cedex |

Date of adoption of the decision

20.8.2007

Reference number of the aid

N 271/07

Member State

France

Region

—

Title (and/or name of the beneficiary)

Aides en faveur de la recherche et du développement dans les filières grandes cultures

Legal basis

L 611.1 et L 621.1 et suivants du Code Rural

Type of measure

Aid scheme

Objective

Aid for basic research

Form of aid

Direct grant

Budget

Annual expenditure: EUR 6 million

Overall amount: EUR 42 million

Intensity

80 % on average, and 100 % in exceptional cases

Duration

2007-2013

Economic sectors

Agriculture — arable crops (cereals-rice, oilseeds-fats of vegetable origin, protein plants — dried vegetables, dried fodder, textile plants and silkworms, sugar)

Name and address of the granting authority

ONIGC

12, rue Rol-Tanguy

F-93555 Montreuil sous Bois Cedex

Other information

Undertaking by France to communicate to the Commission information on aid allocated in the annual reports on State aid

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

| Date of adoption of the decision | 20.8.2007 |
| --- | --- |
| Reference number of the aid | N 273/07 |
| Member State | Spain |
| Region | Andalucía |
| Title (and/or name of the beneficiary) | Ayudas para la lucha contra la mosca mediterránea de la fruta y contra los insectos vectores de los virus de los cultivos hortícolas |
| Legal basis | Orden por la que se modifica la Orden de 13 de marzo de 2006, por la que se declara la existencia oficial de las plagas que se citan, se establecen las medidas de control y las ayudas para su ejecución |
| Type of measure | Aid scheme |
| Objective | — |
| Form of aid | Allocation |
| Budget | EUR 31 884 750 |
| Intensity | 75 %-50 % |
| Duration | 2007-2011 |
| Economic sectors | Agriculture |
| Name and address of the granting authority | Consejería de Agricultura y Pesca
  Comunidad Autónoma de Andalucía |
| Other information | — |

Date of adoption of the decision

20.8.2007

Reference number of the aid

N 273/07

Member State

Spain

Region

Andalucía

Title (and/or name of the beneficiary)

Ayudas para la lucha contra la mosca mediterránea de la fruta y contra los insectos vectores de los virus de los cultivos hortícolas

Legal basis

Orden por la que se modifica la Orden de 13 de marzo de 2006, por la que se declara la existencia oficial de las plagas que se citan, se establecen las medidas de control y las ayudas para su ejecución

Type of measure

Aid scheme

Objective

—

Form of aid

Allocation

Budget

EUR 31 884 750

Intensity

75 %-50 %

Duration

2007-2011

Economic sectors

Agriculture

Name and address of the granting authority

Consejería de Agricultura y Pesca

Comunidad Autónoma de Andalucía

Other information

—

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/

---

| 27.10.2007 | EN | Official Journal of the European Union | C 255/31 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/31

---

Non-opposition to a notified concentration

(Case COMP/M.4889 — Barclays Industrial Investments/Gemeaz/Scapa)

(Text with EEA relevance)

(2007/C 255/05)

On 26 September 2007, the Commission decided not to oppose the above notified concentration and to declare it compatible with the common market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004. The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | from the Europa competition website (http://ec.europa.eu/comm/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

from the Europa competition website (http://ec.europa.eu/comm/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website under document number 32007M4889. EUR-Lex is the on-line access to European law (http://eur-lex.europa.eu). |
| --- | --- |

—

in electronic form on the EUR-Lex website under document number 32007M4889. EUR-Lex is the on-line access to European law (http://eur-lex.europa.eu).

---

| 27.10.2007 | EN | Official Journal of the European Union | C 255/31 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/31

---

Non-opposition to a notified concentration

(Case COMP/M.4885 — Ineos/Nova/JV)

(Text with EEA relevance)

(2007/C 255/06)

On 28 September 2007, the Commission decided not to oppose the above notified concentration and to declare it compatible with the common market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004. The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | from the Europa competition website (http://ec.europa.eu/comm/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

from the Europa competition website (http://ec.europa.eu/comm/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website under document number 32007M4885. EUR-Lex is the on-line access to European law (http://eur-lex.europa.eu). |
| --- | --- |

—

in electronic form on the EUR-Lex website under document number 32007M4885. EUR-Lex is the on-line access to European law (http://eur-lex.europa.eu).

---

| 27.10.2007 | EN | Official Journal of the European Union | C 255/32 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/32

---

Non-opposition to a notified concentration

(Case COMP/M.4836 — CVC/Univar)

(Text with EEA relevance)

(2007/C 255/07)

On 17 September 2007, the Commission decided not to oppose the above notified concentration and to declare it compatible with the common market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004. The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | from the Europa competition website (http://ec.europa.eu/comm/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

from the Europa competition website (http://ec.europa.eu/comm/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website under document number 32007M4836. EUR-Lex is the on-line access to European law (http://eur-lex.europa.eu). |
| --- | --- |

—

in electronic form on the EUR-Lex website under document number 32007M4836. EUR-Lex is the on-line access to European law (http://eur-lex.europa.eu).

---

| 27.10.2007 | EN | Official Journal of the European Union | C 255/32 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/32

---

Non-opposition to a notified concentration

(Case COMP/M.4822 — Advent International/Takko Holding)

(Text with EEA relevance)

(2007/C 255/08)

On 17 August 2007, the Commission decided not to oppose the above notified concentration and to declare it compatible with the common market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004. The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | from the Europa competition website (http://ec.europa.eu/comm/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

from the Europa competition website (http://ec.europa.eu/comm/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website under document number 32007M4822. EUR-Lex is the on-line access to European law (http://eur-lex.europa.eu). |
| --- | --- |

—

in electronic form on the EUR-Lex website under document number 32007M4822. EUR-Lex is the on-line access to European law (http://eur-lex.europa.eu).

---

IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

| 27.10.2007 | EN | Official Journal of the European Union | C 255/33 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/33

---

Euro exchange rates (1)

26 October 2007

(2007/C 255/09)

1 euro=

| | Currency | Exchange rate |
| --- | --- | --- |
| USD | US dollar | 1,4384 |
| JPY | Japanese yen | 164,50 |
| DKK | Danish krone | 7,4549 |
| GBP | Pound sterling | 0,70100 |
| SEK | Swedish krona | 9,1800 |
| CHF | Swiss franc | 1,6732 |
| ISK | Iceland króna | 86,85 |
| NOK | Norwegian krone | 7,7095 |
| BGN | Bulgarian lev | 1,9558 |
| CYP | Cyprus pound | 0,5842 |
| CZK | Czech koruna | 26,962 |
| EEK | Estonian kroon | 15,6466 |
| HUF | Hungarian forint | 252,25 |
| LTL | Lithuanian litas | 3,4528 |
| LVL | Latvian lats | 0,7021 |
| MTL | Maltese lira | 0,4293 |
| PLN | Polish zloty | 3,6309 |
| RON | Romanian leu | 3,3541 |
| SKK | Slovak koruna | 33,291 |
| TRY | Turkish lira | 1,7161 |
| AUD | Australian dollar | 1,5734 |
| CAD | Canadian dollar | 1,3830 |
| HKD | Hong Kong dollar | 11,1488 |
| NZD | New Zealand dollar | 1,8792 |
| SGD | Singapore dollar | 2,0927 |
| KRW | South Korean won | 1 308,94 |
| ZAR | South African rand | 9,3630 |
| CNY | Chinese yuan renminbi | 10,7845 |
| HRK | Croatian kuna | 7,3449 |
| IDR | Indonesian rupiah | 13 121,80 |
| MYR | Malaysian ringgit | 4,8122 |
| PHP | Philippine peso | 63,372 |
| RUB | Russian rouble | 35,5790 |
| THB | Thai baht | 45,626 |

Currency

Exchange rate

USD

US dollar

1,4384

JPY

Japanese yen

164,50

DKK

Danish krone

7,4549

GBP

Pound sterling

0,70100

SEK

Swedish krona

9,1800

CHF

Swiss franc

1,6732

ISK

Iceland króna

86,85

NOK

Norwegian krone

7,7095

BGN

Bulgarian lev

1,9558

CYP

Cyprus pound

0,5842

CZK

Czech koruna

26,962

EEK

Estonian kroon

15,6466

HUF

Hungarian forint

252,25

LTL

Lithuanian litas

3,4528

LVL

Latvian lats

0,7021

MTL

Maltese lira

0,4293

PLN

Polish zloty

3,6309

RON

Romanian leu

3,3541

SKK

Slovak koruna

33,291

TRY

Turkish lira

1,7161

AUD

Australian dollar

1,5734

CAD

Canadian dollar

1,3830

HKD

Hong Kong dollar

11,1488

NZD

New Zealand dollar

1,8792

SGD

Singapore dollar

2,0927

KRW

South Korean won

1 308,94

ZAR

South African rand

9,3630

CNY

Chinese yuan renminbi

10,7845

HRK

Croatian kuna

7,3449

IDR

Indonesian rupiah

13 121,80

MYR

Malaysian ringgit

4,8122

PHP

Philippine peso

63,372

RUB

Russian rouble

35,5790

THB

Thai baht

45,626

---

(1)

Source: reference exchange rate published by the ECB.

---

| 27.10.2007 | EN | Official Journal of the European Union | C 255/34 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/34

---

Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 415th meeting on 11 September 2006 concerning a draft decision relating to Case COMP/C.38.121 — Fittings

(2007/C 255/10)

| 1. | The Advisory Committee agrees with the European Commission's assessment of the product and the geographic area affected by the cartel in the draft decision. |
| --- | --- |

1.

The Advisory Committee agrees with the European Commission's assessment of the product and the geographic area affected by the cartel in the draft decision.

| 2. | The Advisory Committee agrees with the European Commission's assessment of the facts as an agreement and/or concerted practice within the meaning of Article 81 of the Treaty and Article 53 of the EEA Agreement. |
| --- | --- |

2.

The Advisory Committee agrees with the European Commission's assessment of the facts as an agreement and/or concerted practice within the meaning of Article 81 of the Treaty and Article 53 of the EEA Agreement.

| 3. | The Advisory Committee agrees with the European Commission's view that the infringement referred to a single and continuous infringement, especially regarding the period after the inspections in March/April 2001. |
| --- | --- |

3.

The Advisory Committee agrees with the European Commission's view that the infringement referred to a single and continuous infringement, especially regarding the period after the inspections in March/April 2001.

| 4. | The Advisory Committee agrees with the European Commission's draft decision as regards the addressees of the decision, specifically with reference to imputation of liability to parent companies of the groups concerned. |
| --- | --- |

4.

The Advisory Committee agrees with the European Commission's draft decision as regards the addressees of the decision, specifically with reference to imputation of liability to parent companies of the groups concerned.

| 5. | The Advisory Committee agrees with the European Commission as regards the assessment of the leniency applications and their ranking. |
| --- | --- |

5.

The Advisory Committee agrees with the European Commission as regards the assessment of the leniency applications and their ranking.

| 6. | The Advisory Committee agrees to close the proceedings against FNAS. |
| --- | --- |

6.

The Advisory Committee agrees to close the proceedings against FNAS.

| 7. | The Advisory Committee recommends the publication of its opinion in the Official Journal of the European Union. |
| --- | --- |

7.

The Advisory Committee recommends the publication of its opinion in the Official Journal of the European Union.

---

| 27.10.2007 | EN | Official Journal of the European Union | C 255/34 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/34

---

Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 416th meeting on 18 September 2006 concerning a draft decision relating to Case COMP/F/C.38.121 — Fittings

(2007/C 255/11)

| 1. | The Advisory Committee agrees with the Commission on the basic amounts of the fines. |
| --- | --- |

1.

The Advisory Committee agrees with the Commission on the basic amounts of the fines.

| 2. | The Advisory Committee agrees with the Commission on the increase of the basic amount due to aggravating circumstances. |
| --- | --- |

2.

The Advisory Committee agrees with the Commission on the increase of the basic amount due to aggravating circumstances.

| 3. | The Advisory Committee agrees with the Commission on the reduction of the basic amount due to attenuating circumstances. |
| --- | --- |

3.

The Advisory Committee agrees with the Commission on the reduction of the basic amount due to attenuating circumstances.

| 4. | The Advisory Committee agrees with the Commission on the amounts of reduction of the fine based on the 1996 Commission Notice on the non-imposition or reduction of fines in cartel cases. |
| --- | --- |

4.

The Advisory Committee agrees with the Commission on the amounts of reduction of the fine based on the 1996 Commission Notice on the non-imposition or reduction of fines in cartel cases.

| 5. | The Advisory Committee agrees with the Commission on the final amounts of the fines. |
| --- | --- |

5.

The Advisory Committee agrees with the Commission on the final amounts of the fines.

| 6. | The Advisory Committee recommends the publication of its opinion in the Official Journal of the European Union. |
| --- | --- |

6.

The Advisory Committee recommends the publication of its opinion in the Official Journal of the European Union.

---

| 27.10.2007 | EN | Official Journal of the European Union | C 255/35 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/35

---

View of the representatives of the EFTA States concerning a preliminary draft decision relating to Case COMP/C.38.121 — Fittings

(Meeting on 11 September 2006 of the EC Advisory Committee on restrictive practices and dominant positions)

(2007/C 255/12)

| 1. | The representative of the EFTA States agrees with the European Commission's assessment of the product and the geographic area affected by the cartel in the draft decision. |
| --- | --- |

1.

The representative of the EFTA States agrees with the European Commission's assessment of the product and the geographic area affected by the cartel in the draft decision.

| 2. | The representative of the EFTA States agrees with the European Commission's assessment of the facts as an agreement and/or concerted practice within the meaning of Article 81 of the Treaty and Article 53 of the EEA Agreement. |
| --- | --- |

2.

The representative of the EFTA States agrees with the European Commission's assessment of the facts as an agreement and/or concerted practice within the meaning of Article 81 of the Treaty and Article 53 of the EEA Agreement.

| 3. | The representative of the EFTA States agrees with the European Commission's view that the infringement referred to a single and continuous infringement, especially regarding the period after the inspections in March/April 2001. |
| --- | --- |

3.

The representative of the EFTA States agrees with the European Commission's view that the infringement referred to a single and continuous infringement, especially regarding the period after the inspections in March/April 2001.

| 4. | The representative of the EFTA States agrees with the European Commission's draft decision as regards the addressees of the decision, specifically with reference to imputation of liability to parent companies of the groups concerned. |
| --- | --- |

4.

The representative of the EFTA States agrees with the European Commission's draft decision as regards the addressees of the decision, specifically with reference to imputation of liability to parent companies of the groups concerned.

| 5. | The representative of the EFTA States agrees with the European Commission as regards the assessment of the leniency applications and their ranking. |
| --- | --- |

5.

The representative of the EFTA States agrees with the European Commission as regards the assessment of the leniency applications and their ranking.

| 6. | The representative of the EFTA States agrees to close the proceedings against FNAS. |
| --- | --- |

6.

The representative of the EFTA States agrees to close the proceedings against FNAS.

| 7. | The representative of the EFTA States recommends the publication of its view in the Official Journal of the European Union. |
| --- | --- |

7.

The representative of the EFTA States recommends the publication of its view in the Official Journal of the European Union.

---

| 27.10.2007 | EN | Official Journal of the European Union | C 255/36 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/36

---

Final Report of the Hearing Officer on the procedure in the Case COMP/38.121 — Fittings

(Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(2007/C 255/13)

Mueller Industries Inc. submitted an application for leniency under the 1996 Commission Notice on the non-imposition or reduction of fines in cartel cases in January 2001. The other leniency applicants were IMI in September 2003, Delta in March 2004, Frabo in July 2004, and Oystertec in May 2005.

On 22 and 23 March 2001, the Commission carried out inspections concerning both copper tubes and fittings, after which it was decided to separate the case into copper plumbing tubes (38.069), industrial tubes (38.240) and fittings (38.121). On 24 and 25 April 2001, inspections covering only fittings were carried out at the premises of the Delta group. From February/March 2002, the Commission addressed several requests for information under Article 11 of Regulation No 17 and later under Article 18 of Regulation No 1/2003 to all the parties concerned.

This draft decision concerns the last of the three cases, the other two having already been subject of Decisions by the Commission.

Statement of objections and access to file

On 22 September 2005, the Commission issued a Statement of Objections (‘SO’) which was sent to 30 companies and one association, describing a single and continuous infringement on a Europe-wide scale over a period of 13 years. All the parties replied in due time, except for one addressee, Supergrif SL, which was sold by Delta in October 2002 to Supergrif's management, and did not respond to the SO. No third parties were involved in the procedure, as is usually the situation in a cartel case.

By letter of 22 December 2005, Aalberts requested access to the replies of the other parties to the SO, as did IMI by letter of 23 December 2005. These requests were refused by the Commission services, since it is consistent Commission practice for access to the file to be granted upon request and normally on a single occasion, following the notification of the Commission's objections to the parties.

As a general rule, therefore, no access is granted to other parties' replies to the Commission's objections. Further, it is settled law (Judgement of the Court of First Instance of 15 March 2000 in Joined Cases T-25/95 and others, Cimenteries paragraph 380 and subsequent) that the Commission is under no duty to provide the answers to the SO to all the parties.

Oral Hearing

However, at the oral hearing, which took place on 26-27 January 2006, I accepted that it was necessary for their rights of defence for Tomkins and Pegler to exchange their replies to the SO. Given that the Commission took the view that Tomkins is responsible for Pegler, its subsidiary, and would draw on Pegler's reply to support this view, and that Pegler in turn should have been able to know what evidence Tomkins' assertions were based on, they agreed that they should have access to each others' replies, which led to a lively debate between the two companies.

Except for Comap, Flowflex and Supergrif, all the recipients of the SO were present at the hearing.

Draft final decision

The objections relating to FNAS contained in the Statement of Objections are not sustained in the draft Decision. In the light of the explanations supplied in FNAS's written reply to the SO and at the hearing, it was decided not to continue the proceedings against FNAS, because it has not been involved in the infringements.

The draft decision submitted to the Commission only contains objections in respect of which the parties have been afforded the opportunity of making known their views. I consider that the rights of the parties to be heard have been respected.

Brussels, 13 September 2006.

Serge DURANDE

---

V Announcements

ADMINISTRATIVE PROCEDURES

Commission

| 27.10.2007 | EN | Official Journal of the European Union | C 255/38 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/38

---

F-Castres: Operation of scheduled air services

Operation of scheduled air services between Castres (Mazamet) and Paris (Orly)

Notice of a competitive public tender issued by France pursuant to Article 4(1)(d) of Council Regulation (EEC) No 2408/92 for the delegation of a public service

(2007/C 255/14)

1.   Introduction: Pursuant to Article 4(1)(a) of Regulation (EEC) No 2408/92 of 23.7.1992 on access for Community air carriers to intra-Community air routes, France has imposed a public service obligation on scheduled air services between Castres (Mazamet) and Paris (Orly). The standards required by this public service obligation were published in the Official Journal of the European Communities of 22.1.2002 under reference C 18/07.

If on 1.3.2008 no air carrier has commenced or is about to commence operating these scheduled air services in accordance with the public service obligation imposed and without requesting financial compensation, France has decided, in accordance with the procedure laid down in Article 4(1)(d) of the abovementioned Regulation, to limit access to the route to only 1 carrier and to offer the right to operate such services from 1.4.2008 by invitation to tender.

2.   Contracting authority: Chambre de commerce et d'industrie de Castres-Mazamet, 40, allées Alphonse Juin, BP 30217, -81101 Castres Cedex. Tél. (33) 563 51 46 46. Fax (33) 563 51 46 99. E-mail: f.chambert@castres-mazamet.cci.fr.

3.   Subject of the consultation: To provide, from 1.4.2008, scheduled air services in accordance with the public service obligation mentioned in paragraph 1.

4.   Main features of the contract: This is a public service delegation contract concluded between the carrier, the Chamber of Trade and Industry of Castres-Mazamet and the State, in accordance with Article 8 of Decree No 2005-473 of 16.5.2005 relating ‘inter alia’ to the rules governing the allocation of financial compensation by the State.

The delegatee will receive the revenue. The Chamber of Trade and Industry of Castres-Mazamet and the State will pay it a contribution corresponding to the difference between the actual expenditure, excluding taxes (VAT, and aviation taxes), on operating the service and the commercial revenue excluding taxes (VAT, and aviation taxes) received by it, within the limit of the maximum compensation to which it has committed itself, after deduction, where appropriate, of the penalties specified in section 9-4 of this notice.

5.   Duration of the contract: The duration of the contract (public service delegation agreement) is 3 years from 1.4.2008.

6.   Participation in the consultation: Participation is open to all air carriers holding a valid operating licence issued in accordance with Council Regulation (EEC) No 2407/92 of 23.7.1992 on licensing of air carriers.

7.   Award procedure and criteria for selecting applications: This invitation to tender is subject to Article 4(1)(d), (e), (f), (g), (h) and (i) of Regulation (EEC) No 2408/92, Chapter IV, Section 1 of Law No 93-122 of 29.1.1993 on the prevention of corruption and on transparency in economic matters and government procedures, and to the texts implementing them (in particular Decree No 97-638 of 31.5.1997 implementing Law No 97-210 of 11.3.1997 on strengthening the fight against illegal employment), and Decree No 2005-473 of 16.5.2005 relating ‘inter alia’ to the rules governing the allocation of financial compensation by the State and the 3 Orders of 16.5.2005 implementing it.

7-1.   Application file: The application file must be drawn up in French. Where necessary, tenderers must have documents issued by public authorities in an official language of the European Union translated into French. Along with the French version, tenderers may enclose a version drafted in another official language of the European Union; this version will not be authentic.

The application file must contain the following:

an application letter, signed by the manager or his or her representative, together with documents giving the power to sign;

a memorandum presenting the undertaking and vouching for the applicant's professional capability and financial standing in the field of air transport, together with any relevant references. This memorandum must make it possible to assess the applicant's ability to ensure the continuity of the public service and guarantee equality of treatment for users; if they so wish, applicants may base their application on the model form DC5 used in connection with the award of public contracts;

the overall turnover and the turnover relating to the supply of relevant services over the last 3 years or, if the applicant so wishes, the balance sheets and outturn accounts for the last 3 years. If it cannot provide this information, the applicant must explain the reasons;

a methodology note explaining how the applicant proposes to respond to the consultation file if it is allowed by the Chamber of Trade and Industry of Castres-Mazamet to submit a tender, setting out, in particular:

| — | the technical and human resources that the applicant will assign to the operation of the route, |
| --- | --- |

—

the technical and human resources that the applicant will assign to the operation of the route,

| — | the number, qualifications and assignment of personnel and any recruitments that the applicant proposes to make, |
| --- | --- |

—

the number, qualifications and assignment of personnel and any recruitments that the applicant proposes to make,

| — | the types of aircraft used and, where appropriate, their registration, |
| --- | --- |

—

the types of aircraft used and, where appropriate, their registration,

| — | a copy of the tenderer's air carrier operating licence, |
| --- | --- |

—

a copy of the tenderer's air carrier operating licence,

| — | if the operating licence was issued by a European Union Member State other than France, the tenderer must also provide the following information:






  — | the country in which the pilots' licences were issued, |
| --- | --- | --- |

—

if the operating licence was issued by a European Union Member State other than France, the tenderer must also provide the following information:

—

the country in which the pilots' licences were issued,

| — | the law applicable to the employment contracts, |
| --- | --- |

—

the law applicable to the employment contracts,

| — | details of membership of social insurance bodies, |
| --- | --- |

—

details of membership of social insurance bodies,

| — | the steps taken to comply with Articles L. 341-5 and Articles D. 341-5 ‘et seq.’ of the Labour Code relating to the temporary secondment of wage-earners for the purpose of supplying services on the national territory; |
| --- | --- |

—

the steps taken to comply with Articles L. 341-5 and Articles D. 341-5 ‘et seq.’ of the Labour Code relating to the temporary secondment of wage-earners for the purpose of supplying services on the national territory;

| — | certificates or statements issued on honour, as provided for in Article 8 of Decree No 97-638 of 31.5.1997 and the Order of 31.1.2003 implementing Article 8 of the aforementioned Decree, vouching that the applicant has discharged its obligations with regard to taxation and social insurance, in particular covering:






  — | corporation tax, |
| --- | --- | --- |

—

certificates or statements issued on honour, as provided for in Article 8 of Decree No 97-638 of 31.5.1997 and the Order of 31.1.2003 implementing Article 8 of the aforementioned Decree, vouching that the applicant has discharged its obligations with regard to taxation and social insurance, in particular covering:

—

corporation tax,

| — | value-added tax, |
| --- | --- |

—

value-added tax,

| — | contributions in respect of social insurance, work accidents, occupational illnesses and family allowances, |
| --- | --- |

—

contributions in respect of social insurance, work accidents, occupational illnesses and family allowances,

| — | civil aviation tax, |
| --- | --- |

—

civil aviation tax,

| — | airport tax, |
| --- | --- |

—

airport tax,

| — | tax on noise pollution from aircraft, |
| --- | --- |

—

tax on noise pollution from aircraft,

| — | solidarity levy; |
| --- | --- |

—

solidarity levy;

in the case of applications from a European Union Member State other than France, equivalent certificates or statements must be drawn up by the administrations and bodies of the country of origin;

a statement issued on honour relating to the absence of conviction recorded in bulletin No 2 for offences referred to in Articles L. 324-9, L. 324-10, L. 341-6, L. 125-1 and L. 125-3 of the Labour Code;

a statement issued on honour and/or proof of compliance with the obligation to employ handicapped workers provided for in Article L. 323-1 of the Labour Code;

extract ‘K bis’ of the entry in the Companies Register, or an equivalent document;

pursuant to Article 7 of Regulation (EEC) No 2407/92 of 23.7.1992, an insurance certificate less than 3 months old covering civil liability in the event of accidents, in particular in respect of passengers, baggage, cargo, mail and third parties and conforming to Regulation (EC) No 785/2004 of 21.4.2004, and in particular Article 4 thereof;

in the event of a safeguard or collective procedure measure, a copy of any judgment to this effect (if the judgment is not drawn up in French, it must be accompanied by a certified translation).

7-2.   Procedures for the examination of applications: Applications will be selected with reference to the following criteria:

the professional and financial guarantees offered by the applicants,

their ability to ensure the continuity of the public service and guarantee equality of treatment for users with regard to that service,

their compliance with the obligation to employ handicapped workers provided for in Article L. 323-1 of the Labour Code.

8.   Criteria for the award of the contract: The carriers whose applications are allowed and accepted will subsequently be invited to submit their tenders in accordance with the procedures laid down in the specific rules for the invitation to tender, which will then be supplied to them.

Tenders submitted in this way will be negotiated freely by the authority responsible in the Chamber of Trade and Industry of Castres-Mazamet.

In accordance with Article 4(1)(f) of Regulation (EEC) No 2408/92, the selection among the submissions will be made taking into consideration the adequacy of the service, including the prices and conditions which can be quoted to users, and the cost of the compensation required.

9.   Essential additional information:

9-1.   Financial compensation: The tenders submitted by the carriers whose applications are accepted must specify the maximum amount required by way of compensation for operating the route for 3 years from 1.4.2008, with an annual breakdown. The exact amount of compensation finally granted will be determined annually ex post on the basis of the costs and revenue actually generated by the service, within the limits of the amount stated in the tender. This maximum limit may be revised only in the event of unforeseen changes in the operating conditions.

The annual payments will be made in the form of advance payments and an adjustment balance. The balance will be paid only after approval of the carrier's accounts for the route in question and verification that the service has been operated in accordance with the conditions laid down in section 9-2 below.

In the event of termination of the contract before its normal expiry date, section 9-2 will be applied as soon as possible to allow payment to the carrier of the balance due, the maximum amount referred to in the first subparagraph being reduced, where appropriate, in proportion to the actual duration of the service.

9-2.   Verification of the performance of the service and of the carrier's accounts: The performance of the service and the carrier's cost accounting for the route in question will be examined at least once a year in cooperation with the carrier.

9-3.   Contract amendment and termination: Where the carrier believes that unforeseen changes in the operating conditions justify revision of the maximum amount of financial compensation, it must present a reasoned request to the other signatory parties, which must reach a decision within 2 months. The contract may then be amended by means of an additional agreement.

The contract may be terminated by either of the signatory parties before the normal end of the validity of the contract provided that a 6-month period of notice is observed. In the event of serious breaches of its contractual obligations, the carrier will be deemed to have terminated the contract without notice if it does not resume the service in accordance with those obligations within 1 month of the serving of formal notice.

9-4.   Penalties or other deductions provided for in the contract: Failure by the carrier to observe the period of notice referred to in section 9-3 will be subject either to an administrative fine pursuant to Article R.330-20 of the Civil Aviation Code, or to a penalty calculated on the basis of the number of months of default and the actual operating loss of the route during the year in question, but not exceeding the maximum financial compensation provided for in section 9-1.

In the event of minor breaches of the public service obligation, the maximum financial compensation provided for in section 9-1 will be reduced, without prejudice to the application of Article R.330-20 of the Civil Aviation Code.

Such reductions will take account, as appropriate, of the number of flights cancelled for reasons directly attributable to the carrier, the number of flights made with less than the required capacity, and the number of flights not complying with the public service obligation in terms of stopovers and fares charged.

10.   Submission of applications: Application files must be enclosed in a sealed envelope marked: ‘Réponse à l'appel de candidatures Ligne aérienne Castres (Mazamet) / Paris (Orly) – À n'ouvrir que par le destinataire’. They must be sent by registered letter with acknowledgement of receipt (the date on the latter serving as proof of the date of receipt) or delivered by hand (in which case a receipt must be obtained) to reach the following address by no later than 4.12.2007 (12:00), local time:

Chambre de commerce et d'industrie de Castres-Mazamet, 40, allées Alphonse Juin, BP 30217, F-81101 Castres Cedex.

11.   Subsequent procedure: No later than 7.12.2007, the Chamber of Trade and Commerce of Castres-Mazamet will send the selected applicants a consultation file containing, ‘inter alia’, consultation rules and a draft agreement.

The applicants selected must submit their bids by no later than 4.1.2008 (12:00), local time.

The tender will be binding on the tenderer for a period of 280 days from its submission.

12.   Validity of the invitation to tender: The validity of this invitation to tender is subject to the condition that no Community carrier presents by 1.3.2008 a programme for operating the route in question from 1.4.2008 in accordance with the public service obligation imposed and without receiving any financial compensation.

13.   Requests for additional information: To obtain any information they may need, applicants may contact the President of the Chamber of Trade and Industry of Castres-Mazamet, exclusively by letter or fax, at the address/fax number indicated in paragraph 2 above.

---

| 27.10.2007 | EN | Official Journal of the European Union | C 255/42 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/42

---

F-Castres: Operation of scheduled air services

Operation of scheduled air services between Castres (Mazamet) and Lyons (Saint-Exupéry), and between Rodez (Marcillac) and Lyons (Saint-Exupéry)

Notice of a competitive public tender issued by France pursuant to Article 4(1)(d) of Council Regulation (EEC) No 2408/92 for the delegation of a public service

(2007/C 255/15)

1.   Introduction: Pursuant to Article 4(1)(a) of Regulation (EEC) No 2408/92 of 23.7.1992 on access for Community air carriers to intra-Community air routes, France has imposed a public service obligation on scheduled air services between Castres (Mazamet) and Lyons (Saint-Exupéry) and between Rodez (Marcillac) and Lyons (Saint-Exupéry). The standards required by this public service obligation were published in the Official Journal of the European Communities of 22.1.2002 under the reference C 18/06.

If on 1.5.2008 no air carrier has commenced or is about to commence operating scheduled air services between Castres and Rodez, on the one hand, and Lyons, on the other, in accordance with the public service obligation imposed and without requesting financial compensation, France has decided, in accordance with the procedure laid down in Article 4(1)(d) of the abovementioned Regulation, to limit access to the route to only one carrier and to offer the right to operate such services from 1.6.2008 by invitation to tender.

2.   Contracting authority: Chambre de commerce et d'industrie de Castres-Mazamet, BP 30217, 40, allées Alphonse Juin, -81101 Castres Cedex. Tél. (33) 563 51 46 46. Fax (33) 563 51 46 99. E-mail: f.chambert@castres-mazamet.cci.fr.

and

Société anonyme d'économie mixte locale (SAEML) Air 12, Aéroport de Rodez-Marcillac, route de Décazeville, F-12330 Salles-la-Source. Tél. (33) 565 76 02 00. Fax (33) 565 42 99 97. E-mail: aeroport-rodez-marcillac@wanadoo.fr.

3.   Subject of the consultation: To provide, from 1.6.2008, scheduled air services in accordance with the public service obligation specified in paragraph 1.

4.   Main features of the contract: This is a public service delegation contract concluded between the carrier, the Chamber of Trade and Industry of Castres-Mazamet, the company Société anonyme d'économie mixte locale Air 12 and the State, in accordance with Article 8 of Decree No 2005-473 of 16.5.2005 relating inter alia to the rules governing the allocation of financial compensation by the State.

The delegatee will receive the revenue. The Chamber of Trade and Industry of Castres-Mazamet, the company Société anonyme d'économie mixte locale Air 12, and the State will pay it a contribution corresponding to the difference between the actual expenditure, excluding taxes (VAT, and aviation-specific taxes), on operating the service and the commercial revenue excluding taxes (VAT, and aviation-specific taxes) received by it, within the limit of the maximum compensation to which it has committed itself, after deduction, where appropriate, of the penalties referred to in point 9.4 of this notice.

5.   Duration of the contract: The duration of the contract (public service delegation agreement) is 3 years from 1.6.2008.

6.   Participation in the consultation: Participation is open to all air carriers holding a valid operating licence issued in accordance with Council Regulation (EEC) No 2407/92 of 23.7.1992 on licensing of air carriers.

7.   Award procedure and criteria for selecting applications: This invitation to tender is subject to Article 4(1)(d), (e), (f), (g), (h) and (i) of Regulation (EEC) No 2408/92, Chapter IV, Section 1 of Law No 93-122 of 29.1.1993 on the prevention of corruption and on transparency in economic matters and government procedures, and to the texts implementing them (in particular Decree No 97-638 of 31.5.1997 implementing Law No 97-210 of 11.3.1997 on strengthening the fight against illegal employment), and Decree No 2005-473 of 16.5.2005 relating inter alia to the rules governing the allocation of financial compensation by the State and the three Orders of 16.5.2005 implementing it.

7-1.   Application file: The application file must be drawn up in French. Where necessary, tenderers must have documents issued by public authorities in an official language of the European Union translated into French. Along with the French version, tenderers may enclose a version drafted in another official language of the European Union; this version will not be authentic.

The application file must contain the following:

an application letter, signed by the manager or his or her representative, together with documents giving the power to sign;

a memorandum presenting the undertaking and vouching for the applicant's professional capability and financial standing in the field of air transport, together with any relevant references. This memorandum must make it possible to assess the applicant's ability to ensure the continuity of the public service and guarantee equality of treatment for users; if they so wish, applicants may base their application on the model form DC5 used in connection with the award of public contracts;

the overall turnover and the turnover relating to the supply of relevant services over the last 3 years or, if the applicant so wishes, the balance sheets and outturn accounts for the last 3 years. If it cannot cannot provide this information, the applicant must explain the reasons;

a methodology note explaining how the applicant proposes to respond to the consultation file if it is allowed by the Chamber of Trade and Industry of Castres-Mazamet and the company Société anonyme d'économie mixte locale Air 12 to submit a tender, setting out, in particular:

| — | the technical and human resources that the applicant will assign to the operation of the route, |
| --- | --- |

—

the technical and human resources that the applicant will assign to the operation of the route,

| — | the number, qualifications and assignment of personnel and any recruitments that the applicant proposes to make, |
| --- | --- |

—

the number, qualifications and assignment of personnel and any recruitments that the applicant proposes to make,

| — | the types of aircraft used and, where appropriate, their registration, |
| --- | --- |

—

the types of aircraft used and, where appropriate, their registration,

| — | a copy of the tenderer's air carrier operating licence, |
| --- | --- |

—

a copy of the tenderer's air carrier operating licence,

| — | if the operating licence was issued by a European Union Member State other than France, the tenderer must also provide the following information:






  — | the country in which the pilots' licences were issued, |
| --- | --- | --- |

—

if the operating licence was issued by a European Union Member State other than France, the tenderer must also provide the following information:

—

the country in which the pilots' licences were issued,

| — | the law applicable to the employment contracts, |
| --- | --- |

—

the law applicable to the employment contracts,

| — | details of membership of social insurance bodies, |
| --- | --- |

—

details of membership of social insurance bodies,

| — | the steps taken to comply with Articles L. 341-5 and Articles D. 341-5 et seq. of the Labour Code relating to the temporary secondment of wage-earners for the purpose of supplying services on the national territory; |
| --- | --- |

—

the steps taken to comply with Articles L. 341-5 and Articles D. 341-5 et seq. of the Labour Code relating to the temporary secondment of wage-earners for the purpose of supplying services on the national territory;

| — | certificates or statements issued on honour, as provided for in Article 8 of Decree No 97-638 of 31.5.1997 and the Order of 31.1.2003 implementing Article 8 of the aforementioned Decree, vouching that the applicant has discharged its obligations with regard to taxation and social insurance, in particular covering:






  — | corporation tax, |
| --- | --- | --- |

—

certificates or statements issued on honour, as provided for in Article 8 of Decree No 97-638 of 31.5.1997 and the Order of 31.1.2003 implementing Article 8 of the aforementioned Decree, vouching that the applicant has discharged its obligations with regard to taxation and social insurance, in particular covering:

—

corporation tax,

| — | value added tax, |
| --- | --- |

—

value added tax,

| — | contributions in respect of social insurance, work accidents, occupational illnesses and family allowances, |
| --- | --- |

—

contributions in respect of social insurance, work accidents, occupational illnesses and family allowances,

| — | civil aviation tax, |
| --- | --- |

—

civil aviation tax,

| — | airport tax, |
| --- | --- |

—

airport tax,

| — | tax on noise pollution from aircraft, |
| --- | --- |

—

tax on noise pollution from aircraft,

| — | solidarity levy; |
| --- | --- |

—

solidarity levy;

in the case of applications from a European Union Member State other than France, equivalent certificates or statements must be drawn up by the administrations and bodies of the country of origin;

a statement issued on honour relating to the absence of conviction recorded in bulletin No 2 for offences referred to in Articles L. 324-9, L. 324-10, L. 341-6, L. 125-1 and L. 125-3 of the Labour Code;

a statement issued on honour and/or proof of compliance with the obligation to employ handicapped workers provided for in Article L. 323-1 of the Labour Code;

extract ‘K bis’ of the entry in the Companies Register, or an equivalent document;

pursuant to Article 7 of Regulation (EEC) No 2407/92 of 23.7.1992, an insurance certificate less than 3 months old covering civil liability in the event of accidents, in particular in respect of passengers, baggage, cargo, mail and third parties and conforming to Regulation (EC) No 785/2004 of 21.4.2004, and in particular Article 4 thereof;

in the event of a safeguard or collective procedure measure, a copy of any judgment to this effect (if the judgment is not drawn up in French, it must be accompanied by a certified translation).

7-2.   Procedures for the examination of applications: Applications will be selected with reference to the following criteria:

the professional and financial guarantees offered by the applicants,

their ability to ensure the continuity of the public service and guarantee equality of treatment for users with regard to that service,

their compliance with the obligation to employ handicapped workers provided for in Article L. 323-1 of the Labour Code.

8.   Criteria for the award of the contract: The carriers whose applications are allowed and accepted will subsequently be invited to submit their tenders in accordance with the procedures laid down in the specific rules for the invitation to tender, which will then be supplied to them.

Tenders submitted in this way will be negotiated freely by the authorities responsible in the Chamber of Trade and Industry of Castres-Mazamet and the company Société anonyme d'économie mixte locale Air 12.

In accordance with Article 4(1)(f) of Regulation (EEC) No 2408/92, the selection among the submissions will be made taking into consideration the adequacy of the service, including the prices and conditions which can be quoted to users, and the cost of the compensation required.

9.   Essential additional information:

9-1.   Financial compensation: The tenders submitted by the carriers whose applications are accepted must specify the maximum amount required by way of compensation for operating the route for 3 years from 1.6.2008, with an annual breakdown. The exact amount of compensation finally granted will be determined annually ex post on the basis of the costs and revenue actually generated by the service, within the limits of the amount stated in the tender. This maximum limit may be revised only in the event of unforeseen changes in the operating conditions.

The annual payments will be made in the form of advance payments and an adjustment balance. The balance will be paid only after approval of the carrier's accounts for the route in question and verification that the service has been operated in accordance with the conditions laid down in section 9-2 below.

In the event of termination of the contract before its normal expiry date, section 9-2 will be applied as soon as possible to allow payment to the carrier of the balance due, the maximum amount referred to in the first subparagraph being reduced, where appropriate, in proportion to the actual duration of the service.

9-2.   Verification of the performance of the service and of the carrier's accounts: The performance of the service and the carrier's cost accounting for the route in question will be examined at least once a year in cooperation with the carrier.

9-3.   Contract amendment and termination: Where the carrier believes that unforeseen changes in the operating conditions justify revision of the maximum amount of financial compensation, it must present a reasoned request to the other signatory parties, which must reach a decision within 2 months. The contract may then be amended by means of an additional agreement.

The contract may be terminated by either of the signatory parties before the normal end of the validity of the contract provided that a 6-month period of notice is observed. In the event of serious breaches of its contractual obligations, the carrier will be deemed to have terminated the contract without notice if it does not resume the service in accordance with those obligations within 1 month of the serving of formal notice.

9-4.   Penalties or other deductions provided for in the contract: Failure by the carrier to observe the period of notice referred to in section 9.3 will be subject either to an administrative fine pursuant to Article R.330-20 of the Civil Aviation Code, or to a penalty calculated on the basis of the number of months of default and the actual operating loss of the route during the year in question, but not exceeding the maximum financial compensation provided for in section 9.1.

In the event of minor breaches of the public service obligation, the maximum financial compensation provided for in section 9.1 will be reduced, without prejudice to the application of Article R.330-20 of the Civil Aviation Code.

Such reductions will take account, as appropriate, of the number of flights cancelled for reasons directly attributable to the carrier, the number of flights made with less than the required capacity, and the number of flights not complying with the public service obligation in terms of stopovers and fares charged.

10.   Submission of applications: Application files must be enclosed in a sealed envelope marked: ‘Réponse à l'appel de candidatures Ligne aérienne Castres (Mazamet) / Rodez (Marcillac) / Lyon (Saint Exupéry) – À n'ouvrir que par le destinataire’. They must be sent by registered letter with acknowledgement of receipt (the date on the latter serving as proof of the date of receipt) or delivered by hand (in which case a receipt must be obtained) to reach the following address by no later than 4.12.2007 (12:00) local time:

Chambre de commerce et d'industrie de Castres-Mazamet, 40, allées Alphonse Juin, BP 30217, F-81101 Castres Cedex.

11.   Subsequent procedure: No later than 7.12.2007, the Chamber of Trade and Industry of Castres-Mazamet will send the selected applicants a consultation file containing, inter alia, consultation rules and a draft agreement.

The selected applicants must submit their tender by 4.1.2008 (12:00) local time.

The bid will be binding on the tenderer for a period of 280 days from its submission.

12.   Validity of the invitation to tender: The validity of this invitation to tender is subject to the condition that no Community carrier presents by 1.5.2008 a programme for operating the route in question from 1.6.2008 in accordance with the public service obligation imposed and without receiving any financial compensation.

13.   Requests for additional information: To obtain any information they may need, applicants may contact the President of the Chamber of Trade and Industry of Castres-Mazamet, exclusively by letter or fax, at the address/fax number indicated in paragraph 2 above.

---

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMPETITION POLICY

Commission

| 27.10.2007 | EN | Official Journal of the European Union | C 255/45 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/45

---

Prior notification of a concentration

(Case COMP/M.4911 — Goldman Sachs/LOMO)

Candidate case for simplified procedure

(Text with EEA relevance)

(2007/C 255/16)

| 1. | On 19 October 2007, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking The Goldman Sachs Group, Inc. (‘Goldman Sachs’, USA) acquires within the meaning of Article 3(1)(b) of the Council Regulation control of the whole of the undertaking LOMO Group (‘LOMO’, Germany) by way of purchase of securities. |
| --- | --- |

1.

On 19 October 2007, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking The Goldman Sachs Group, Inc. (‘Goldman Sachs’, USA) acquires within the meaning of Article 3(1)(b) of the Council Regulation control of the whole of the undertaking LOMO Group (‘LOMO’, Germany) by way of purchase of securities.

| 2. | The business activities of the undertakings concerned are:






  — | for Goldman Sachs: investment banking, trading and principal investment, asset management, and investment services, |
| --- | --- | --- |

2.

The business activities of the undertakings concerned are:

—

for Goldman Sachs: investment banking, trading and principal investment, asset management, and investment services,

| — | for LOMO: operation of petrol stations and motorways service areas. |
| --- | --- |

—

for LOMO: operation of petrol stations and motorways service areas.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.

| 4. | The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
  Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax ((32-2) 296 43 01 or 296 72 44) or by post, under reference number COMP/M.4911 — Goldman Sachs/LOMO, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Merger Registry |
| J-70 |
| B-1049 Bruxelles/Brussel |

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax ((32-2) 296 43 01 or 296 72 44) or by post, under reference number COMP/M.4911 — Goldman Sachs/LOMO, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

J-70

B-1049 Bruxelles/Brussel

---

(1)  OJ L 24, 29.1.2004, p. 1.

(2)  OJ C 56, 5.3.2005, p. 32.

---

| 27.10.2007 | EN | Official Journal of the European Union | C 255/46 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/46

---

Prior notification of a concentration

(Case COMP/M.4944 — SAP/Business Objects)

(Text with EEA relevance)

(2007/C 255/17)

| 1. | On 22 October 2007, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking SAP AG (‘SAP’, Germany) acquires within the meaning of Article 3(1)(b) of the Council Regulation control of the whole of the undertaking Business Objects S.A. (‘BO’, France/USA) by way of purchase of shares. |
| --- | --- |

1.

On 22 October 2007, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking SAP AG (‘SAP’, Germany) acquires within the meaning of Article 3(1)(b) of the Council Regulation control of the whole of the undertaking Business Objects S.A. (‘BO’, France/USA) by way of purchase of shares.

| 2. | The business activities of the undertakings concerned are:






  — | for undertaking SAP: enterprise application software solutions, |
| --- | --- | --- |

2.

The business activities of the undertakings concerned are:

—

for undertaking SAP: enterprise application software solutions,

| — | for undertaking BO: business analytics software solutions, training and related services. |
| --- | --- |

—

for undertaking BO: business analytics software solutions, training and related services.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved.

| 4. | The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
  Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax ((32-2) 296 43 01 or 296 72 44) or by post, under reference number COMP/M.4944 — SAP/Business Objects, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Merger Registry |
| J-70 |
| B-1049 Bruxelles/Brussel |

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax ((32-2) 296 43 01 or 296 72 44) or by post, under reference number COMP/M.4944 — SAP/Business Objects, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

J-70

B-1049 Bruxelles/Brussel

---

(1)  OJ L 24, 29.1.2004, p. 1.

---

| 27.10.2007 | EN | Official Journal of the European Union | C 255/47 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/47

---

Prior notification of a concentration

(Case COMP/M.4899 — SCB/Süd-Chemie)

Candidate case for simplified procedure

(Text with EEA relevance)

(2007/C 255/18)

| 1. | On 19 October 2007, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking SC-Beteiligungsgesellschaft mbH (SCB, Germany), finally controlled by JP Morgan Chase & Co. (JPMorgan Chase, USA) acquires within the meaning of Article 3(1)(b) of the Council Regulation control of the whole of the undertaking Süd-Chemie AG (Süd-Chemie, Germany) by way of purchase of shares. |
| --- | --- |

1.

On 19 October 2007, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking SC-Beteiligungsgesellschaft mbH (SCB, Germany), finally controlled by JP Morgan Chase & Co. (JPMorgan Chase, USA) acquires within the meaning of Article 3(1)(b) of the Council Regulation control of the whole of the undertaking Süd-Chemie AG (Süd-Chemie, Germany) by way of purchase of shares.

| 2. | The business activities of the undertakings concerned are:






  — | for SCB: special purpose vehicle of JPMorgan Chase, |
| --- | --- | --- |

2.

The business activities of the undertakings concerned are:

—

for SCB: special purpose vehicle of JPMorgan Chase,

| — | for JPMorgan Chase: financial services, |
| --- | --- |

—

for JPMorgan Chase: financial services,

| — | for Süd-Chemie: specialty chemicals. |
| --- | --- |

—

for Süd-Chemie: specialty chemicals.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.

| 4. | The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
  Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax ((32-2) 296 43 01 or 296 72 44) or by post, under reference number COMP/M.4899 — SCB/Süd-Chemie, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Merger Registry |
| J-70 |
| B-1049 Bruxelles/Brussel |

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax ((32-2) 296 43 01 or 296 72 44) or by post, under reference number COMP/M.4899 — SCB/Süd-Chemie, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

J-70

B-1049 Bruxelles/Brussel

---

(1)  OJ L 24, 29.1.2004, p. 1.

(2)  OJ C 56, 5.3.2005, p. 32.

---

| 27.10.2007 | EN | Official Journal of the European Union | C 255/48 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/48

---

PROPOSAL FOR A COMMISSION REGULATION (EC) No .../...

of [...]

amending Regulation (EC) No 773/2004, as regards the conduct of settlement procedures in cartel cases

(Text with EEA relevance)

(2007/C 255/19)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to the Agreement on the European Economic Area,

Having regard to Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (1), and in particular Article 33 thereof,

Having published a draft of this Regulation (2),

After consulting the Advisory Committee on Restrictive Practices and Dominant Positions,

Whereas:

| (1) | Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (3) lays down rules concerning the participation of the parties concerned in such proceedings. |
| --- | --- |

(1)

Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (3) lays down rules concerning the participation of the parties concerned in such proceedings.

| (2) | Parties to the proceedings may be prepared to acknowledge their participation in a cartel violating Article 81 of the Treaty and their liability in respect of such participation, if they can reasonably anticipate the Commission's envisaged findings as regards their participation in the infringement and the level of potential fines and agree with those findings. It should be possible for the Commission to disclose to those parties, where appropriate, the objections which it intends to raise against them on the basis of the evidence in the file and the fines that they are likely to incur. Such early disclosure should enable the parties concerned to put forward their views on the objections which the Commission intends to raise against them as well as on their potential liability. |
| --- | --- |

(2)

Parties to the proceedings may be prepared to acknowledge their participation in a cartel violating Article 81 of the Treaty and their liability in respect of such participation, if they can reasonably anticipate the Commission's envisaged findings as regards their participation in the infringement and the level of potential fines and agree with those findings. It should be possible for the Commission to disclose to those parties, where appropriate, the objections which it intends to raise against them on the basis of the evidence in the file and the fines that they are likely to incur. Such early disclosure should enable the parties concerned to put forward their views on the objections which the Commission intends to raise against them as well as on their potential liability.

| (3) | When the Commission endorses the parties' written settlement submissions in the statement of objections and, in their replies, the parties confirm that the statement of objections corresponds to the contents of their written submissions, the Commission should be able to proceed immediately to the adoption of a decision pursuant to Article 7 and Article 23 of Regulation (EC) No 1/2003 after consultation of the Advisory Committee on Restrictive Practices and Dominant Positions pursuant to Article 14 of Regulation (EC) No 1/2003. |
| --- | --- |

(3)

When the Commission endorses the parties' written settlement submissions in the statement of objections and, in their replies, the parties confirm that the statement of objections corresponds to the contents of their written submissions, the Commission should be able to proceed immediately to the adoption of a decision pursuant to Article 7 and Article 23 of Regulation (EC) No 1/2003 after consultation of the Advisory Committee on Restrictive Practices and Dominant Positions pursuant to Article 14 of Regulation (EC) No 1/2003.

| (4) | A settlement procedure should therefore be established in order to enable the Commission to handle cartel cases faster by reaching an agreement with the parties. |
| --- | --- |

(4)

A settlement procedure should therefore be established in order to enable the Commission to handle cartel cases faster by reaching an agreement with the parties.

| (5) | Experience has shown that systematically providing complainants with a non-confidential version of the statement of objections can have negative consequences as regards the willingness of the parties to the proceedings to cooperate with the Commission. While complainants should continue to be closely associated with the proceedings and be informed of and able to provide their views on the nature and subject matter of the procedure in writing, it should be for the Commission to determine how such written information should be given in a particular case. |
| --- | --- |

(5)

Experience has shown that systematically providing complainants with a non-confidential version of the statement of objections can have negative consequences as regards the willingness of the parties to the proceedings to cooperate with the Commission. While complainants should continue to be closely associated with the proceedings and be informed of and able to provide their views on the nature and subject matter of the procedure in writing, it should be for the Commission to determine how such written information should be given in a particular case.

| (6) | Regulation (EC) No 773/2004 should therefore be amended accordingly, |
| --- | --- |

(6)

Regulation (EC) No 773/2004 should therefore be amended accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 773/2004 is amended as follows:

| 1. | Article 2, paragraph 1 is replaced by the following
  ‘1.   The Commission may decide to initiate proceedings with a view to adopting a decision pursuant to Chapter III of Regulation (EC) No 1/2003 at any point in time, but no later than the date on which it issues a preliminary assessment as referred to in Article 9(1) of that Regulation, a statement of objections or a request for the parties to express their interest in engaging in settlement discussions, or the date on which a notice pursuant to Article 27(4) of that Regulation is published, whichever is the earlier.’ |
| --- | --- |

1.

Article 2, paragraph 1 is replaced by the following

‘1.   The Commission may decide to initiate proceedings with a view to adopting a decision pursuant to Chapter III of Regulation (EC) No 1/2003 at any point in time, but no later than the date on which it issues a preliminary assessment as referred to in Article 9(1) of that Regulation, a statement of objections or a request for the parties to express their interest in engaging in settlement discussions, or the date on which a notice pursuant to Article 27(4) of that Regulation is published, whichever is the earlier.’

| 2. | In Article 6, paragraph 1 is replaced by the following:
  ‘1.   Where the Commission issues a statement of objections relating to a matter in respect of which it has received a complaint, it shall inform the complainant in writing of the nature and subject matter of the procedure and set a time-limit within which the complainant may make known its views in writing. The Commission may also provide the complainant with a copy of the non-confidential version of the statement of objections.’ |
| --- | --- |

2.

In Article 6, paragraph 1 is replaced by the following:

‘1.   Where the Commission issues a statement of objections relating to a matter in respect of which it has received a complaint, it shall inform the complainant in writing of the nature and subject matter of the procedure and set a time-limit within which the complainant may make known its views in writing. The Commission may also provide the complainant with a copy of the non-confidential version of the statement of objections.’

| 3. | In Article 10, paragraph 1 is replaced by the following:
  ‘1.   The Commission shall inform the parties concerned of the objections raised against them. The statement of objections shall be notified in writing to each of the parties against whom objections are raised.’ |
| --- | --- |

3.

In Article 10, paragraph 1 is replaced by the following:

‘1.   The Commission shall inform the parties concerned of the objections raised against them. The statement of objections shall be notified in writing to each of the parties against whom objections are raised.’

| 4. | The following Article 10a is inserted:
  ‘Article 10a
  Settlement procedure in cartel cases
  1.   After the initiation of proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003, the Commission may set a time-limit within which the parties may indicate in writing that they are prepared to engage in settlement discussions with a view to possibly introducing settlement submissions. The Commission shall not be obliged to take into account replies received after the expiry of that time-limit.
  If two or more parties belonging to the same undertaking indicate that they are willing to engage in settlement discussions pursuant to the first subparagraph, those parties shall appoint a joint representation to engage in discussions with the Commission on their behalf.
  2.   The Commission may inform the parties willing to introduce settlement submissions of:






  (a) | the objections it envisages to raise against them; |
| --- | --- | --- |

4.

The following Article 10a is inserted:

‘Article 10a

Settlement procedure in cartel cases

1.   After the initiation of proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003, the Commission may set a time-limit within which the parties may indicate in writing that they are prepared to engage in settlement discussions with a view to possibly introducing settlement submissions. The Commission shall not be obliged to take into account replies received after the expiry of that time-limit.

If two or more parties belonging to the same undertaking indicate that they are willing to engage in settlement discussions pursuant to the first subparagraph, those parties shall appoint a joint representation to engage in discussions with the Commission on their behalf.

2.   The Commission may inform the parties willing to introduce settlement submissions of:

(a)

the objections it envisages to raise against them;

| (b) | the evidence supporting them, and |
| --- | --- |

(b)

the evidence supporting them, and

| (c) | the potential fines. |
| --- | --- |

(c)

the potential fines.

Should settlement discussions progress to a stage in which the above mentioned information has been disclosed upon request or made available to the parties otherwise, the Commission may set a time-limit within which the parties may commit to follow the settlement procedure by introducing written settlement submissions reflecting the results of the settlement discussions and acknowledging their participation in an infringement of Article 81 of the Treaty as well as their liability. The Commission shall not be obliged to take into account written settlement submissions received after the expiry of that time-limit.

3.   When the statement of objections notified to the parties endorses the contents of their written settlement submissions, the written reply to the statement of objections by the parties concerned shall, within a time-limit set by the Commission, confirm that the statement of objections addressed to them corresponds to the contents of their written settlement submissions. The Commission may then proceed immediately to the adoption of a decision pursuant to Article 7 and Article 23 of Regulation (EC) No 1/2003 after consultation of the Advisory Committee on Restrictive Practices and Dominant Positions pursuant to Article 14 of Regulation (EC) No 1/2003.’

| 5. | Article 11(1) is replaced by the following:
  ‘1.   The Commission shall give the parties to whom it addresses a statement of objections the opportunity to be heard before consulting the Advisory Committee referred to in Article 14(1) of Regulation (EC) No 1/2003’ |
| --- | --- |

5.

Article 11(1) is replaced by the following:

‘1.   The Commission shall give the parties to whom it addresses a statement of objections the opportunity to be heard before consulting the Advisory Committee referred to in Article 14(1) of Regulation (EC) No 1/2003’

| 6. | Article 12 is replaced by the following:
  ‘1.   The Commission shall give the parties to whom it addresses a statement of objections the opportunity to develop their arguments at an oral hearing, if they so request in their written submissions.’
  ‘2.   However, when introducing their written settlement submissions the parties shall confirm to the Commission that they would only require having the opportunity to develop their arguments at an oral hearing, if the statement of objections does not endorse the contents of their written settlement submissions.’ |
| --- | --- |

6.

Article 12 is replaced by the following:

‘1.   The Commission shall give the parties to whom it addresses a statement of objections the opportunity to develop their arguments at an oral hearing, if they so request in their written submissions.’

‘2.   However, when introducing their written settlement submissions the parties shall confirm to the Commission that they would only require having the opportunity to develop their arguments at an oral hearing, if the statement of objections does not endorse the contents of their written settlement submissions.’

| 7. | In Article 15, the following paragraph 1a is added:
  ‘1a.   After the initiation of proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003, the Commission shall disclose, where appropriate, the evidence supporting the envisaged objections to parties willing to introduce settlement submissions in order to enable them to do so. In view thereof, when introducing their settlement submissions the parties shall confirm to the Commission that they will only require access to the file after the receipt of the statement of objections, if the statement of objections does not endorse the contents of their written settlement submissions.’ |
| --- | --- |

7.

In Article 15, the following paragraph 1a is added:

‘1a.   After the initiation of proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003, the Commission shall disclose, where appropriate, the evidence supporting the envisaged objections to parties willing to introduce settlement submissions in order to enable them to do so. In view thereof, when introducing their settlement submissions the parties shall confirm to the Commission that they will only require access to the file after the receipt of the statement of objections, if the statement of objections does not endorse the contents of their written settlement submissions.’

| 8. | Article 17(1) and Article 17(3) are replaced by the following:
  ‘1.   In setting the time-limits provided for in Article 3(3), Article 4(3), Article 6(1), Article 7(1), Article 10(2), Article 10a(1), Article 10a(2), Article 10a(3) and Article 16(3), the Commission shall have regard both to the time required for preparation of the submission and to the urgency of the case.’
  ‘3.   The time-limits referred to in Article 3(3), Article 4(3), Article 10a(1), Article 10a(2) and Article 16(3) shall be at least two weeks. The time-limit referred to in Article 10a(3) shall be at least one week.’ |
| --- | --- |

8.

Article 17(1) and Article 17(3) are replaced by the following:

‘1.   In setting the time-limits provided for in Article 3(3), Article 4(3), Article 6(1), Article 7(1), Article 10(2), Article 10a(1), Article 10a(2), Article 10a(3) and Article 16(3), the Commission shall have regard both to the time required for preparation of the submission and to the urgency of the case.’

‘3.   The time-limits referred to in Article 3(3), Article 4(3), Article 10a(1), Article 10a(2) and Article 16(3) shall be at least two weeks. The time-limit referred to in Article 10a(3) shall be at least one week.’

Article 2

This Regulation shall enter into force on [date].

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

Done at Brussels, [...]

For the Commission

Neelie KROES

Member of the Commission

---

(1)  OJ L 1, 4.1.2003, p. 1. Regulation as last amended by Regulation (EC) No 1419/2006 (OJ L 269, 28.9.2006, p. 1).

1

(2)  OJ C 255, 30.10.2007, p. 48.

2

(3)  OJ L 123, 27.4.2004, p. 18. Regulation as amended by Regulation (EC) No 1792/2006 (OJ L 362, 20.12.2006, p. 1).

3

---

| 27.10.2007 | EN | Official Journal of the European Union | C 255/51 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/51

---

Draft Commission Notice

of [...]

on the conduct of settlement proceedings in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases

(Text with EEA relevance)

(2007/C 255/20)

1.   INTRODUCTION

| 1. | This Notice sets out the framework for rewarding cooperation in the conduct of proceedings commenced in view of the application of Article 81 of the EC Treaty (1) to cartel cases. The settlement procedure may allow the Commission to handle more cases with the same resources, thereby fostering the public interest in the Commission's delivery of effective and timely punishment, while increasing overall deterrence. The cooperation covered by this Notice is different from the voluntary production of evidence to trigger or advance the Commission's investigation, which is covered by the Commission Notice on Immunity from fines and reduction of fines in cartel cases (2) (the Leniency Notice). Provided that the cooperation offered by an undertaking qualifies under both Commission Notices, it can be cumulatively rewarded accordingly (3). |
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1.

This Notice sets out the framework for rewarding cooperation in the conduct of proceedings commenced in view of the application of Article 81 of the EC Treaty (1) to cartel cases. The settlement procedure may allow the Commission to handle more cases with the same resources, thereby fostering the public interest in the Commission's delivery of effective and timely punishment, while increasing overall deterrence. The cooperation covered by this Notice is different from the voluntary production of evidence to trigger or advance the Commission's investigation, which is covered by the Commission Notice on Immunity from fines and reduction of fines in cartel cases (2) (the Leniency Notice). Provided that the cooperation offered by an undertaking qualifies under both Commission Notices, it can be cumulatively rewarded accordingly (3).

| 2. | When parties to the proceedings are prepared to acknowledge their participation in a cartel violating Article 81 of the EC Treaty and their liability therefore, they may also contribute to expediting the proceedings leading to the adoption of the corresponding decision pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (4) in the way and with the safeguards specified in this Notice. Whilst the Commission, as the investigative authority and the guardian of the Treaty empowered to adopt enforcement decisions subject to judicial control by the Community Courts, does not negotiate the question of the existence of an infringement of Community law and the appropriate sanction, it can reward the cooperation described in this Notice. |
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2.

When parties to the proceedings are prepared to acknowledge their participation in a cartel violating Article 81 of the EC Treaty and their liability therefore, they may also contribute to expediting the proceedings leading to the adoption of the corresponding decision pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (4) in the way and with the safeguards specified in this Notice. Whilst the Commission, as the investigative authority and the guardian of the Treaty empowered to adopt enforcement decisions subject to judicial control by the Community Courts, does not negotiate the question of the existence of an infringement of Community law and the appropriate sanction, it can reward the cooperation described in this Notice.

| 3. | Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (5) lays down the core practical rules concerning the conduct of proceedings in antitrust cases including those applicable in the variant for settlement. In this regard, Regulation (EC) No 773/2004 bestows on the Commission the discretion whether to explore the settlement procedure or not in cartel cases, while ensuring that the choice of the settlement procedure cannot be imposed on the parties. |
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3.

Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (5) lays down the core practical rules concerning the conduct of proceedings in antitrust cases including those applicable in the variant for settlement. In this regard, Regulation (EC) No 773/2004 bestows on the Commission the discretion whether to explore the settlement procedure or not in cartel cases, while ensuring that the choice of the settlement procedure cannot be imposed on the parties.

| 4. | Effective enforcement of Community competition law is compatible with full respect of the parties' rights of defence, which constitutes a fundamental principle of Community law to be respected in all circumstances, and in particular in antitrust procedures which may give rise to penalties. It follows that the rules established to conduct the Commission proceedings to enforce Article 81 of the EC Treaty should ensure that the undertakings and associations of undertakings concerned are afforded the opportunity effectively to make known their views on the truth and relevance of the facts, objections and circumstances put forward by the Commission (6), throughout the administrative procedure. |
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4.

Effective enforcement of Community competition law is compatible with full respect of the parties' rights of defence, which constitutes a fundamental principle of Community law to be respected in all circumstances, and in particular in antitrust procedures which may give rise to penalties. It follows that the rules established to conduct the Commission proceedings to enforce Article 81 of the EC Treaty should ensure that the undertakings and associations of undertakings concerned are afforded the opportunity effectively to make known their views on the truth and relevance of the facts, objections and circumstances put forward by the Commission (6), throughout the administrative procedure.

2.   PROCEDURE

| 5. | The Commission retains a broad margin of discretion to determine which cases may be suitable to explore the parties' interest to engage in settlement discussions, as well as to decide to engage in them or discontinue them or to definitely settle. In this regard, account may be taken of the probability of reaching a common understanding regarding the scope of the potential objections with the parties involved within a reasonable timeframe, in view of factors such as number of parties involved, foreseeable conflicting positions on the attribution of liability, extent of contestation of the facts. Additionally, the prospect of achieving procedural efficiencies in view of the progress made overall in the settlement procedure will be considered. Other concerns such as setting a possible precedent might apply. The Commission may only engage in settlement discussions upon the written request of the parties concerned. |
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5.

The Commission retains a broad margin of discretion to determine which cases may be suitable to explore the parties' interest to engage in settlement discussions, as well as to decide to engage in them or discontinue them or to definitely settle. In this regard, account may be taken of the probability of reaching a common understanding regarding the scope of the potential objections with the parties involved within a reasonable timeframe, in view of factors such as number of parties involved, foreseeable conflicting positions on the attribution of liability, extent of contestation of the facts. Additionally, the prospect of achieving procedural efficiencies in view of the progress made overall in the settlement procedure will be considered. Other concerns such as setting a possible precedent might apply. The Commission may only engage in settlement discussions upon the written request of the parties concerned.

| 6. | While parties to the proceedings do not have a right to settle, should the Commission consider that a case may, in principle, be suitable for settlement, it will explore the interest in settlement of all parties to the same proceedings. |
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6.

While parties to the proceedings do not have a right to settle, should the Commission consider that a case may, in principle, be suitable for settlement, it will explore the interest in settlement of all parties to the same proceedings.

| 7. | The parties to the proceedings and their legal representatives may not disclose to any other undertaking or third party in any jurisdiction the content of the discussions or of the documents which they have had access to in view of settlement, unless they have a prior explicit authorization by the Commission. Any breach in this regard may lead the Commission to disregard the undertaking's request to follow the settlement procedure and may constitute an aggravating circumstance within the meaning of point 28 of the Commission Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (7) (the Guidelines on fines). |
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7.

The parties to the proceedings and their legal representatives may not disclose to any other undertaking or third party in any jurisdiction the content of the discussions or of the documents which they have had access to in view of settlement, unless they have a prior explicit authorization by the Commission. Any breach in this regard may lead the Commission to disregard the undertaking's request to follow the settlement procedure and may constitute an aggravating circumstance within the meaning of point 28 of the Commission Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (7) (the Guidelines on fines).

2.1.   Initiation of proceedings and exploratory steps regarding settlement

| 8. | Where the Commission contemplates the adoption of a decision pursuant to Article 7 and/or Article 23 of Regulation (EC) No 1/2003, it is required in advance to identify and recognize as parties to the proceedings the legal persons on whom a penalty may be imposed for an infringement of Article 81 of the EC Treaty. |
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8.

Where the Commission contemplates the adoption of a decision pursuant to Article 7 and/or Article 23 of Regulation (EC) No 1/2003, it is required in advance to identify and recognize as parties to the proceedings the legal persons on whom a penalty may be imposed for an infringement of Article 81 of the EC Treaty.

| 9. | To this end, the initiation of proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003 in view of adopting such a decision can take place at any point in time, but no later than the date on which the Commission issues a statement of objections against the parties concerned. Article 2(1) of Regulation (EC) No 773/2004 further specifies that, should the Commission consider it suitable to explore the parties' interest in engaging in settlement discussions, it will initiate proceedings no later than the date on which it either issues a statement of objections or requests the parties to express in writing their interest to engage in settlement discussions, whichever is the earlier. |
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9.

To this end, the initiation of proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003 in view of adopting such a decision can take place at any point in time, but no later than the date on which the Commission issues a statement of objections against the parties concerned. Article 2(1) of Regulation (EC) No 773/2004 further specifies that, should the Commission consider it suitable to explore the parties' interest in engaging in settlement discussions, it will initiate proceedings no later than the date on which it either issues a statement of objections or requests the parties to express in writing their interest to engage in settlement discussions, whichever is the earlier.

| 10. | After the initiation of proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003, the Commission is solely competent to apply Article 81 of the EC Treaty to the case in point (8). |
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10.

After the initiation of proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003, the Commission is solely competent to apply Article 81 of the EC Treaty to the case in point (8).

| 11. | Should the Commission consider it suitable to explore the parties' interest to engage in settlement discussions, it will set a time-limit of no less than two weeks pursuant to Articles 10a(1) and 17(3) of Regulation (EC) No 773/2004 within which parties to the same proceedings should declare in writing whether they envisage engaging in settlement discussions in view of possibly introducing settlement submissions at a later stage. |
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11.

Should the Commission consider it suitable to explore the parties' interest to engage in settlement discussions, it will set a time-limit of no less than two weeks pursuant to Articles 10a(1) and 17(3) of Regulation (EC) No 773/2004 within which parties to the same proceedings should declare in writing whether they envisage engaging in settlement discussions in view of possibly introducing settlement submissions at a later stage.

| 12. | All parties to the proceedings which belong to the same undertaking and envisage the possibility of introducing a settlement submission and requesting to engage in settlement discussions may appoint joint representatives duly empowered to act on their behalf at any point in time, but must do it no later than the end of the time-limit referred to in point 11. |
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12.

All parties to the proceedings which belong to the same undertaking and envisage the possibility of introducing a settlement submission and requesting to engage in settlement discussions may appoint joint representatives duly empowered to act on their behalf at any point in time, but must do it no later than the end of the time-limit referred to in point 11.

| 13. | The Commission may disregard any application for immunity from fines or reduction of fines under the Leniency Notice on the ground that it has been submitted after the expiry of the time-limit referred to in point11. |
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13.

The Commission may disregard any application for immunity from fines or reduction of fines under the Leniency Notice on the ground that it has been submitted after the expiry of the time-limit referred to in point11.

2.2.   Commencing the settlement procedure: settlement discussions

| 14. | Should some of the parties to the proceedings request settlement discussions and comply with the requirements referred to in points 11 and 12, the Commission may decide to pursue the settlement procedure by means of bilateral contacts between the Commission Directorate General for Competition and the settlement candidates. |
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14.

Should some of the parties to the proceedings request settlement discussions and comply with the requirements referred to in points 11 and 12, the Commission may decide to pursue the settlement procedure by means of bilateral contacts between the Commission Directorate General for Competition and the settlement candidates.

| 15. | The Commission retains discretion to determine throughout the procedure on the appropriateness and the pace of the bilateral settlement discussions with each undertaking. In line with Article 10a(2) of Regulation (EC) No 773/2004 (9), this includes determining, in view of the progress made overall in the settlement procedure, the order and sequence of the bilateral settlement discussions as well as the timing of the disclosure of information, including the evidence in the Commission file used to establish the envisaged objections and the potential fine (10). Information will be disclosed in a timely manner as settlement discussions progress |
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15.

The Commission retains discretion to determine throughout the procedure on the appropriateness and the pace of the bilateral settlement discussions with each undertaking. In line with Article 10a(2) of Regulation (EC) No 773/2004 (9), this includes determining, in view of the progress made overall in the settlement procedure, the order and sequence of the bilateral settlement discussions as well as the timing of the disclosure of information, including the evidence in the Commission file used to establish the envisaged objections and the potential fine (10). Information will be disclosed in a timely manner as settlement discussions progress

| 16. | Such an early disclosure in the context of settlement discussions pursuant to Article 10a(2) and Article 15(1a) of Regulation (EC) No 773/2004 will allow the parties to be informed of the essential elements taken into consideration so far, such as the facts alleged, the classification of those facts, the gravity and duration of the alleged cartel, the attribution of liability, an estimation of the range of likely fines (11), as well as the evidence used to establish the potential objections (12). This will enable the parties effectively to assert their views on the potential objections against them and will allow them to make an informed decision on whether or not to settle. |
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16.

Such an early disclosure in the context of settlement discussions pursuant to Article 10a(2) and Article 15(1a) of Regulation (EC) No 773/2004 will allow the parties to be informed of the essential elements taken into consideration so far, such as the facts alleged, the classification of those facts, the gravity and duration of the alleged cartel, the attribution of liability, an estimation of the range of likely fines (11), as well as the evidence used to establish the potential objections (12). This will enable the parties effectively to assert their views on the potential objections against them and will allow them to make an informed decision on whether or not to settle.

| 17. | When the progress made during the settlement discussions leads to a common understanding regarding the scope of the potential objections and the estimation of the range of likely fines to be imposed by the Commission, the Commission may grant a final time-limit of at least XXX working days for an undertaking to introduce a final written settlement submission pursuant to Articles 10a(2) and 17(3) of Regulation (EC) No 773/2004. The time-limit can be extended following a reasoned request. Before granting such time-limit, the parties will be entitled to have the information specified in point 16 disclosed to them upon request. Upon reasoned request by a party, the Commission services will also grant it access to non-confidential versions of any accessible document listed in the case file at that point in time, in so far as they consider it justified for the purpose of enabling the party to ascertain its position regarding any other aspect of the cartel and provided that the procedural efficiencies referred to in point 5 are not jeopardized (13). |
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17.

When the progress made during the settlement discussions leads to a common understanding regarding the scope of the potential objections and the estimation of the range of likely fines to be imposed by the Commission, the Commission may grant a final time-limit of at least XXX working days for an undertaking to introduce a final written settlement submission pursuant to Articles 10a(2) and 17(3) of Regulation (EC) No 773/2004. The time-limit can be extended following a reasoned request. Before granting such time-limit, the parties will be entitled to have the information specified in point 16 disclosed to them upon request. Upon reasoned request by a party, the Commission services will also grant it access to non-confidential versions of any accessible document listed in the case file at that point in time, in so far as they consider it justified for the purpose of enabling the party to ascertain its position regarding any other aspect of the cartel and provided that the procedural efficiencies referred to in point 5 are not jeopardized (13).

| 18. | The parties may call upon the Hearing Officer at any time during the settlement procedure in relation to issues that might arise relating to due process. The Hearing Officer's duty is to ensure that the effective exercise of the rights of defence is respected in competition proceedings. |
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18.

The parties may call upon the Hearing Officer at any time during the settlement procedure in relation to issues that might arise relating to due process. The Hearing Officer's duty is to ensure that the effective exercise of the rights of defence is respected in competition proceedings.

| 19. | Should the parties concerned fail to introduce a settlement submission, then the procedure leading to the final decision in their regard will follow the general provisions in Articles 10(2), 12(1) and 15(1) of Regulation (EC) No 773/2004, instead of those regulating the settlement procedure. |
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19.

Should the parties concerned fail to introduce a settlement submission, then the procedure leading to the final decision in their regard will follow the general provisions in Articles 10(2), 12(1) and 15(1) of Regulation (EC) No 773/2004, instead of those regulating the settlement procedure.

2.3.   Settlement submissions

| 20. | Parties opting for a settlement procedure must introduce a formal request to settle in the form of a written settlement submission. The written settlement submission provided for in Article 10a(2) of Regulation (EC) No 773/2004 should contain:






  (a) | an acknowledgement in unequivocal terms of the parties' liability for the infringement summarily described as regards the main facts, their legal qualification, and the duration of their participation in the infringement in accordance with the results of the settlement discussions; |
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20.

Parties opting for a settlement procedure must introduce a formal request to settle in the form of a written settlement submission. The written settlement submission provided for in Article 10a(2) of Regulation (EC) No 773/2004 should contain:

(a)

an acknowledgement in unequivocal terms of the parties' liability for the infringement summarily described as regards the main facts, their legal qualification, and the duration of their participation in the infringement in accordance with the results of the settlement discussions;

| (b) | an indication (14) of the maximum amount of the fine the parties foresee to be imposed by the Commission and which the parties accept in the framework of a settlement procedure; |
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(b)

an indication (14) of the maximum amount of the fine the parties foresee to be imposed by the Commission and which the parties accept in the framework of a settlement procedure;

| (c) | the parties' confirmation that, they have been sufficiently informed of the objections the Commission envisages raising against them and have been given sufficient opportunity to make their views known to the Commission; |
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(c)

the parties' confirmation that, they have been sufficiently informed of the objections the Commission envisages raising against them and have been given sufficient opportunity to make their views known to the Commission;

| (d) | the parties' confirmation that, in view of the above, they do not envisage requesting access to the file or requesting to be heard again in an oral hearing, unless the Commission does not endorse their settlement submission; |
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(d)

the parties' confirmation that, in view of the above, they do not envisage requesting access to the file or requesting to be heard again in an oral hearing, unless the Commission does not endorse their settlement submission;

| (e) | the parties' agreement to receive the statement of objections and the final decision pursuant to Article 7 and 23 of Regulation (EC) No 1/2003 in a given official language of the European Community. |
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(e)

the parties' agreement to receive the statement of objections and the final decision pursuant to Article 7 and 23 of Regulation (EC) No 1/2003 in a given official language of the European Community.

| 21. | The acknowledgments and confirmations provided by the parties in view of settlement constitute the expression of their commitment to cooperate in the expeditious handling of the case following the settlement procedure. However, those acknowledgments and confirmations are conditional upon the Commission meeting their settlement request, including the anticipated maximum amount of the fine. |
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21.

The acknowledgments and confirmations provided by the parties in view of settlement constitute the expression of their commitment to cooperate in the expeditious handling of the case following the settlement procedure. However, those acknowledgments and confirmations are conditional upon the Commission meeting their settlement request, including the anticipated maximum amount of the fine.

| 22. | Therefore, written settlement requests cannot be revoked unilaterally by the parties who have provided them unless the Commission does not meet the settlement requests by endorsing the written settlement submissions first in a statement of objections and ultimately, in a final decision (see in this regard points 27 and 29). The statement of objections would be deemed to have endorsed the written settlement submissions if it reflects their contents as regards the description of the cartel and the undertaking's involvement therein and the legal qualification thereof. Additionally, for a final decision to be deemed to have endorsed the written settlement submissions, it should also impose a fine which does not exceed the maximum amount indicated therein. |
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22.

Therefore, written settlement requests cannot be revoked unilaterally by the parties who have provided them unless the Commission does not meet the settlement requests by endorsing the written settlement submissions first in a statement of objections and ultimately, in a final decision (see in this regard points 27 and 29). The statement of objections would be deemed to have endorsed the written settlement submissions if it reflects their contents as regards the description of the cartel and the undertaking's involvement therein and the legal qualification thereof. Additionally, for a final decision to be deemed to have endorsed the written settlement submissions, it should also impose a fine which does not exceed the maximum amount indicated therein.

2.4.   Statement of objections and reply

| 23. | Pursuant to Article 10(1) of Regulation (EC) No 773/2004, the notification of a written statement of objections to each of the parties against whom objections are raised is a mandatory preparatory step before adopting any final decision (15). Therefore, the Commission will issue a statement of objections also in a settlement procedure (16). |
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23.

Pursuant to Article 10(1) of Regulation (EC) No 773/2004, the notification of a written statement of objections to each of the parties against whom objections are raised is a mandatory preparatory step before adopting any final decision (15). Therefore, the Commission will issue a statement of objections also in a settlement procedure (16).

| 24. | For the parties' rights of defence to be exercised effectively, the Commission should hear their views on the objections against them and supporting evidence before adopting a final decision and take them into account by amending its preliminary analysis, where appropriate (17). The Commission must be able not only to accept or reject the parties' relevant arguments expressed during the administrative procedure, but also to make its own analysis of the matters put forward by them in order to either abandon such objections as have been shown to be unfounded or to supplement and reassess its arguments both in fact and in law in support of the objections which it maintains (18). |
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24.

For the parties' rights of defence to be exercised effectively, the Commission should hear their views on the objections against them and supporting evidence before adopting a final decision and take them into account by amending its preliminary analysis, where appropriate (17). The Commission must be able not only to accept or reject the parties' relevant arguments expressed during the administrative procedure, but also to make its own analysis of the matters put forward by them in order to either abandon such objections as have been shown to be unfounded or to supplement and reassess its arguments both in fact and in law in support of the objections which it maintains (18).

| 25. | By introducing a formal settlement request in the form of a written settlement submission prior to the notification of the statement of objections, the parties concerned enable the Commission to effectively take their views into account (19) already when drafting the statement of objections, rather than only before the consultation of the Advisory Committee on Restrictive Practices and Dominant Positions (hereinafter the ‘Advisory Committee’) or before the adoption of the final decision (20). Accordingly, the statement of objections notified to the parties may draw on the contents of the settlement submissions, where appropriate, and the amount of the potential fine may be reviewed downwards in light thereof (21). |
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25.

By introducing a formal settlement request in the form of a written settlement submission prior to the notification of the statement of objections, the parties concerned enable the Commission to effectively take their views into account (19) already when drafting the statement of objections, rather than only before the consultation of the Advisory Committee on Restrictive Practices and Dominant Positions (hereinafter the ‘Advisory Committee’) or before the adoption of the final decision (20). Accordingly, the statement of objections notified to the parties may draw on the contents of the settlement submissions, where appropriate, and the amount of the potential fine may be reviewed downwards in light thereof (21).

| 26. | Should the statement of objections endorse the parties' settlement submissions, the parties concerned should within a time-limit of at least one week set by the Commission in accordance with Articles 10a(3) and 17(3) of Regulation (EC) No 773/2004, reply to it by simply confirming (in unequivocal terms) that the statement of objections corresponds to the contents of their settlement submissions and that they therefore remain committed to follow the settlement procedure. In the absence of such a reply, the Commission may disregard the undertaking's request to follow the settlement procedure. |
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26.

Should the statement of objections endorse the parties' settlement submissions, the parties concerned should within a time-limit of at least one week set by the Commission in accordance with Articles 10a(3) and 17(3) of Regulation (EC) No 773/2004, reply to it by simply confirming (in unequivocal terms) that the statement of objections corresponds to the contents of their settlement submissions and that they therefore remain committed to follow the settlement procedure. In the absence of such a reply, the Commission may disregard the undertaking's request to follow the settlement procedure.

| 27. | The Commission may legitimately adopt a statement of objections which does not endorse the parties' settlement submission. If so, the general provisions in Articles 10(2), 12(1) and 15(1) of Regulation (EC) No 773/2004 will apply. The acknowledgements provided by the parties in the settlement submission would be deemed to be withdrawn and could not be used against any of the parties to the proceedings. Hence, the parties concerned would no longer be bound by their settlement submissions and would be granted a time-limit allowing them to present their defence anew, including the possibility to request an oral hearing and access to the file, if they so wish. |
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27.

The Commission may legitimately adopt a statement of objections which does not endorse the parties' settlement submission. If so, the general provisions in Articles 10(2), 12(1) and 15(1) of Regulation (EC) No 773/2004 will apply. The acknowledgements provided by the parties in the settlement submission would be deemed to be withdrawn and could not be used against any of the parties to the proceedings. Hence, the parties concerned would no longer be bound by their settlement submissions and would be granted a time-limit allowing them to present their defence anew, including the possibility to request an oral hearing and access to the file, if they so wish.

2.5.   Commission decision and settlement reward

| 28. | Upon the parties' replies to the statement of objections confirming their commitment to settle, Regulation (EC) No 773/2004 allows the Commission to proceed, without any other procedural step, to the adoption of the subsequent final decision pursuant to Articles 7 and/or 23 of Regulation (EC) No 1/2003, after consultation of the Advisory Committee pursuant to Article 14 of Regulation (EC) No 1/2003. In particular, this implies that no oral hearing or access to the file may be requested by those parties once their settlement submissions have been endorsed by the statement of objections (22), in line with Articles 12(2) (23) and 15(1a) (24) of Regulation (EC) No 773/2004. |
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28.

Upon the parties' replies to the statement of objections confirming their commitment to settle, Regulation (EC) No 773/2004 allows the Commission to proceed, without any other procedural step, to the adoption of the subsequent final decision pursuant to Articles 7 and/or 23 of Regulation (EC) No 1/2003, after consultation of the Advisory Committee pursuant to Article 14 of Regulation (EC) No 1/2003. In particular, this implies that no oral hearing or access to the file may be requested by those parties once their settlement submissions have been endorsed by the statement of objections (22), in line with Articles 12(2) (23) and 15(1a) (24) of Regulation (EC) No 773/2004.

| 29. | The Commission may legitimately adopt a final position which departs from its preliminary position expressed in a statement of objections endorsing the parties' written settlement submissions, either in view of the arguments provided by the Advisory Committee or for other considerations in view of the ultimate autonomy of the Commission College to this effect (25). However, should the Commission intend to follow that course, it will inform the parties of this intention and notify to them a new statement of objections in order to allow for their defence in accordance with the general rules of procedure (26). It follows that the parties would then be entitled to have access to the file, to request an oral hearing and to reply to the statement of objections. The acknowledgments provided by the parties in the settlement submissions would be deemed to have been withdrawn and could not be used against any of the parties to the proceedings. |
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29.

The Commission may legitimately adopt a final position which departs from its preliminary position expressed in a statement of objections endorsing the parties' written settlement submissions, either in view of the arguments provided by the Advisory Committee or for other considerations in view of the ultimate autonomy of the Commission College to this effect (25). However, should the Commission intend to follow that course, it will inform the parties of this intention and notify to them a new statement of objections in order to allow for their defence in accordance with the general rules of procedure (26). It follows that the parties would then be entitled to have access to the file, to request an oral hearing and to reply to the statement of objections. The acknowledgments provided by the parties in the settlement submissions would be deemed to have been withdrawn and could not be used against any of the parties to the proceedings.

| 30. | The final amount of the fine in a particular case is determined in the decision finding an infringement and imposing a sanction pursuant to Article 7 and Article 23 of Regulation (EC) No 1/2003. |
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30.

The final amount of the fine in a particular case is determined in the decision finding an infringement and imposing a sanction pursuant to Article 7 and Article 23 of Regulation (EC) No 1/2003.

| 31. | In line with the Commission's practice, the fact that an undertaking cooperated with the Commission under this Notice during the administrative procedure will be indicated in any decision, so as to explain the reason for the level of the fine. |
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31.

In line with the Commission's practice, the fact that an undertaking cooperated with the Commission under this Notice during the administrative procedure will be indicated in any decision, so as to explain the reason for the level of the fine.

| 32. | Should the Commission decide to reward a party for settlement in the framework of this Notice, it will reduce by XX % the amount of the fine after the 10 % cap has been applied having regard to the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (27) and any specific increase for deterrence (28) used in their regard will not exceed a multiplication by two. |
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32.

Should the Commission decide to reward a party for settlement in the framework of this Notice, it will reduce by XX % the amount of the fine after the 10 % cap has been applied having regard to the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (27) and any specific increase for deterrence (28) used in their regard will not exceed a multiplication by two.

| 33. | In cases settled with leniency applicants, the reduction of the fine granted to them will be the sum of the leniency reward and the settlement reward. |
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33.

In cases settled with leniency applicants, the reduction of the fine granted to them will be the sum of the leniency reward and the settlement reward.

3.   GENERAL CONSIDERATIONS

| 34. | This Notice applies to any case pending before the Commission at the time of or after its publication in the Official Journal. |
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34.

This Notice applies to any case pending before the Commission at the time of or after its publication in the Official Journal.

| 35. | The Commission considers that normally public disclosure of documents and written or recorded statements received in the context of this Notice would undermine certain public or private interests, for example the protection of the purpose of inspections and investigations, within the meaning of Article 4 of 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 (29), even after the decision has been taken |
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35.

The Commission considers that normally public disclosure of documents and written or recorded statements received in the context of this Notice would undermine certain public or private interests, for example the protection of the purpose of inspections and investigations, within the meaning of Article 4 of 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 (29), even after the decision has been taken

| 36. | Final decisions taken by the Commission under Regulation (EC) No 1/2003 are subject to judicial review in accordance with Article 230 of the EC Treaty. Moreover, as provided in Article 229 of the EC Treaty and Article 31 of Regulation (EC) No 1/2003, the Court of Justice has unlimited jurisdiction to review decisions on sanctions adopted pursuant to Article 23 of Regulation (EC) No 1/2003. |
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36.

Final decisions taken by the Commission under Regulation (EC) No 1/2003 are subject to judicial review in accordance with Article 230 of the EC Treaty. Moreover, as provided in Article 229 of the EC Treaty and Article 31 of Regulation (EC) No 1/2003, the Court of Justice has unlimited jurisdiction to review decisions on sanctions adopted pursuant to Article 23 of Regulation (EC) No 1/2003.

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(1)  References in this text to Article 81 also cover Article 53 EEA when applied by the Commission according to the rules laid down in Article 56 of the EEA Agreement.

(2)  OJ C 298, 8.12.2006, p. 17.

(3)  See point 33 below.

(4)  OJ L 1, 4.1.2003, p. 1. Regulation as last amended by Regulation (EC) No 1419/2006 (OJ L 269, 28.9.2006, p. 1.

(5)  OJ L 123, 27.4.2004, p. 18. Regulation as last amended by Regulation No XXX/200Y (OJ L ..., p. ...).

(6)  Cfr. Case 85/76, Hoffmann-La Roche v Commission [1979] ECR 461, at paragraphs 9 and 11; Case T-11/89, Shell v Commission [1992] ECR II-757, paragraph 39; Joined Cases T-10/92, T-11/92, T-12/92 and T-15/92, [1992] ECR II-2667, Cimenteries CBR, at paragraph 39; Joined Cases T-191/98, T 212/98 to T-214/98, Atlantic Container Line and Others v Commission [2003] ECR II-3275, at paragraph 138; Judgement of the Court of Justice of 2 October 2003 in Case C-176/99 P, ARBED SA v Commission, at paragraph 19; Judgement of the Court of First Instance in Case T-15/02, BASF AG v Commission, of 15 March 2006, at paragraph 44; Judgement of the Court of First Instance of 27 September 2006 in Case T-329/01, Archer Daniels Midland Co. v Commission (sodium gluconate) at paragraph 358.

(7)  OJ C 210, 1.9.2006, p. 2.

(8)  Article 11(6) of Regulation (EC) No 1/2003 reads: ‘The initiation by the Commission of proceedings for the adoption of a decision under Chapter III shall relieve the competition authorities of the Member States of their competence to apply Articles 81 and 82 of the Treaty. If a competition authority of a Member State is already acting on a case, the Commission shall only initiate proceedings after consulting with that national competition authority.’

(9)  ‘The Commission may inform the parties willing to introduce settlement submissions of: (a) the objections it envisages to raise against them, (b) of the evidence supporting them, and (c) potential fines. (...)’ (Article 10a(2) of Regulation (EC) No 773/2004).

(10)  Reference to the ‘potential fine’ in Article 10a(2) of Regulation (EC) No 773/2004 affords the Commission services the possibility to inform the parties concerned by settlement discussions of an estimate of their potential fine in view of the guidance contained in the Guidelines on fines, the provisions of this Notice and the Leniency Notice, where applicable.

(11)  Judgment of the Court of Justice in Joined Cases 100/80 to 103/80, Musique diffusion française and Others v Commission [1983] ECR 1825, paragraph 21, and Judgment of the Court of First Instance in Case T-16/99, Lögstör Rör v Commission [2002] ECR II-1633, paragraph 193, upheld on appeal by judgment of the Court of Justice in Joined Cases C-189/02 P, C-202/02 P, C-205/02 P, C-208/02 P and C-213/02 P, Dansk Rørindustri and Others v Commission [2005] ECR I-0000, in particular paragraph 428; Judgements of the Court of First Instance of 15 March 2006, in Case T-15/02, BASF AG v Commission, at paragraph 48; and of 27 September 2006 in Case T-329/01, Archer Daniels Midland Co. v European Commission (sodium gluconate), at paragraph 361.

(12)  Article 15(1a) of Regulation (EC) No 773/2004 allows the Commission to exercise its discretion as to the timing of the disclosure of the evidentiary basis in the file supporting the envisaged objections to parties who envisage introducing settlement submissions after the initiation of proceedings.

(13)  For that purpose, the parties will be provided with a list of all accessible documents in the case file at that point in time.

(14)  This would result from the discussions as set out in points 16 and 17.

(15)  Pursuant to Article 10(1) of Regulation (EC) No 773/2004: ‘The Commission shall inform the parties concerned of the objections raised against them. The statement of objections shall be notified in writing to each of the parties against whom objections are raised’. Pursuant to Article 11(2) of Regulation (EC) No 773/2004 and Article 27(1) of Regulation (EC) No 1/2003, the Commission shall base its decisions only on objections on which the addressees of the statement of objections concerned by them have been able to comment.

(16)  As stated by the Court of First Instance in its judgment of 15 March 2006 in Case T-15/02, BASF AG v Commission, at paragraph 58, ‘(...) however much an undertaking cooperates, the function of the statement of objections is still to give undertakings and associations of undertakings all the information necessary to enable them to defend themselves properly, before the Commission adopts a final decision’ (Ahlström Osakeyhtiöand Others v Commission, paragraph 46 above, paragraph 42, and Case C-283/98 P Mo och Domsjö v Commission, paragraph 46 above, paragraph 63). ‘From that point of view, the fact that the applicant cooperated with the Commission, acknowledging that it had committed unlawful acts and describing those acts, did not mean that it no longer had any right or interest in obtaining a document from the Commission setting out precisely all the objections that the Commission raised against it, including those that might be based on statements or evidence supplied by other undertakings involved(...)’. In the context of settlements, statements of objections should contain information enabling the parties to corroborate that it subscribes their settlement submissions.

(17)  In line with settled case-law, the Commission shall base its decisions only on objections on which the parties concerned have been able to comment and, to this end, they shall be entitled to have access to the Commission's file, subject to the legitimate interest of undertakings in the protection of their business secrets (Cfr. Joined Cases T-39/92 and T-40/92, CB and Europay v Commission [1994] ECR II-49, at paragraph 47; Joined Cases T-191/98, T 212/98 to T-214/98, Atlantic Container Line and Others v Commission [2003] ECR II-3275, at paragraph 138).

(18)  See Judgments of the Court of Justice, in Cases 41/69, ACF Chemiefarma v Commission [1970] ECR 661, at paragraphs 47, 91 and 92; Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, Suiker Unie and Others v Commission [1975] ECR 1663, at paragraphs 80, 437 and 438; and Joined Cases 209/78 to 215/78 and 218/78, Van Landewyck and Others v Commission [1980] ECR 3125, paragraph 68; and judgments of the Court of First Instance in Case T-44/00 Mannesmannröhren-Werke v Commission [2004] ECR II-0000, paragraphs 98 to 100; and in Case T-15/02, BASF AG v Commission, of 15 March 2006, at paragraphs 93 and 95.

(19)  In this regard, recital 2 of Commission Regulation (EC) No XXX/2008 reads: ‘(...) Such early disclosure should enable the parties concerned to put forward their views on the objections which the Commission intends to raise against them as well as on their potential liability.’.

(20)  As required by Article 11(1) of Regulation (EC) No 773/2004 and Article 27(1) of Regulation (EC) No 1/2003 respectively:

| — | ‘The Commission shall give the parties to whom it addresses a statement of objections the opportunity to be heard before consulting the Advisory Committee referred to in Article 14(1) of Regulation (EC) No 1/2003’ (Article 11(1) of Regulation (EC) No 773/2004). |
| --- | --- |

—

‘The Commission shall give the parties to whom it addresses a statement of objections the opportunity to be heard before consulting the Advisory Committee referred to in Article 14(1) of Regulation (EC) No 1/2003’ (Article 11(1) of Regulation (EC) No 773/2004).

| — | ‘Before taking decisions as provided for in Articles 7, 8, 23 and Article 24(2), the Commission shall give the undertakings or associations of undertakings which are the subject of the proceedings conducted by the Commission the opportunity of being heard on the matters to which the Commission has taken objection. The Commission shall base its decisions only on objections on which the parties concerned have been able to comment. Complainants shall be associated closely with the proceedings’ (Article 27(1) of Regulation (EC) No 1/2003). |
| --- | --- |

—

‘Before taking decisions as provided for in Articles 7, 8, 23 and Article 24(2), the Commission shall give the undertakings or associations of undertakings which are the subject of the proceedings conducted by the Commission the opportunity of being heard on the matters to which the Commission has taken objection. The Commission shall base its decisions only on objections on which the parties concerned have been able to comment. Complainants shall be associated closely with the proceedings’ (Article 27(1) of Regulation (EC) No 1/2003).

(21)  See in this regard the judgments of the Court of Justice in Cases Musique diffusion française and Others v Commission, above, at paragraph 21; Case 322/81, Michelin v Commission [1983] ECR 3461, at paragraph 19; and Lögstör Rör v Commission, above, at paragraph 200; and the Judgement of the Court of First Instance in Case T-15/02, BASF AG v Commission, of 15 March 2006, at paragraph 62.

(22)  In principle, oral hearings and access to the file are held upon parties' request, to ensure that they can exercise their rights of defence.

(23)  Pursuant to Article 12(2) of Regulation (EC) No 773/2004: ‘2. However, when introducing their written settlement submissions the parties shall confirm to the Commission that they would only require having the opportunity to develop their arguments at an oral hearing, if the statement of objections does not endorse the contents of their written settlement submissions.’

(24)  Pursuant to Article 15(1a) of Regulation (EC) No 773/2004: ‘After the initiation of proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003, the Commission shall disclose, where appropriate, the evidentiary basis supporting the envisaged objections to parties willing to introduce settlement submissions in order to enable them to do so. In view thereof, when introducing their written settlement submissions parties shall confirm to the Commission that they will only require access to the file after the receipt of the statement of objections, if the statement of objections does not endorse the contents of their written settlement submissions.’

(25)  See in this regard Joined Cases T-129/95, T-2/96 and T-97/96, Neue Maxhütte Stahlwerke and Lech-Stahlwerke v Commission [1999] ECR II-17, paragraph 231, and Case T-16/02, Audi v OHIM [2003] ECR II 5167, paragraph 75; Judgement of the Court of First Instance in Case T-15/02, BASF AG v Commission, of 15 March 2006, at paragraph 94.

(26)  In accordance with the case law: ‘Thus, first, the rights of the defence are infringed as a result of a discrepancy between the statement of objections and the final decision only where an objection stated in the decision was not set out in the statement of objections in a manner sufficient to enable the addressees to defend their interests. Second, the legal classification of the facts made in the statement of objections can, by definition, be only provisional, and a subsequent Commission decision cannot be annulled on the sole ground that the definitive conclusions drawn from those facts do not correspond precisely with that provisional, intermediate classification. The Commission is required to hear the addressees of a statement of objections and, where relevant, to take account of any observations made in response to the objections by amending its analysis specifically in order to respect their rights of defence.’ (Case T-44/00, Mannesmannröhren-Werke v Commission [2004] ECR II-0000, at paragraphs 98 to 100; Case T-15/02, BASF AG v Commission, at paragraph 95).

(27)  OJ C 210, 1.9.2006, p. 2.

(28)  Point 30 of the Guidelines on fines.

(29)  OJ L 145, 31.5.2001, p. 43.

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OTHER ACTS

Commission

| 27.10.2007 | EN | Official Journal of the European Union | C 255/58 |
| --- | --- | --- | --- |

27.10.2007

EN

Official Journal of the European Union

C 255/58

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Publication of an application pursuant to Article 6(2) of Council Regulation (EC) No 510/2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs

(2007/C 255/21)

This publication confers the right to object to the application pursuant to Article 7 of Council Regulation (EC) No 510/2006 (1). Statements of objection must reach the Commission within six months from the date of this publication.

APPLICATION FOR AN AMENDMENT

COUNCIL REGULATION (EC) No 510/2006

Application for an amendment pursuant to Articles 9 and 17(2)

‘CARNALENTEJANA’

EC No: PT/PDO/117/0209/08.04.2002

PDO ( X ) PGI ( )

Amendment(s) requested

Specification heading:

| | Name of product |
| --- | --- |
| | Description |
| | Geographical area |
| | Proof of origin |
| | Method of production |
| | Link |
| | Labelling |
| | National requirements |

Image

Name of product

Image

Description

Image

Geographical area

Image

Proof of origin

Image

Method of production

Image

Link

Image

Labelling

Image

National requirements

Amendment(s):

1.   Description of product

The Producer Group has, with a view to bringing the product into conformity with the existing national legislation, in particular the amendments to the grading scale for carcasses of light bovine animals (Portaria (Order in Council) No 363/2001 of 9 April 2001), submitted a duly substantiated request for an amendment to this section.

Moreover, in the light of recent market trends and with a view to bringing the product more into line with consumer behaviour and preferences, the Group has decided to diversify the commercial presentation of the product. Thus CARNALENTEJANA will henceforth be marketed as minced, moulded or rolled meat pieces, cubes, strips, etc., packaged in cuvettes or other appropriate materials, in a controlled atmosphere, in vacuum or blastfrozen, with CARNALENTEJANA representing, as a rule, at least 95 % by weight of the final product. As the entire production process takes place in the region of origin, complete traceability is ensured, along with strict control of the use of the protected designation of origin, the utilisation of a genuine form of presentation and the maintenance of the traditional quality of the product, i.e. without misleading or disappointing consumers. For all these reasons, the Group has submitted to the Portuguese authorities a duly substantiated request for changes in the presentation of the product.

2.   Geographical area

Producers in some municipalities adjoining the geographical production area of ‘Carnalentejana’ applied to the Producer Group in charge of the designation of origin for an extension of the area, on the ground that they met all the conditions required for the production of the product, in particular as regards feed, husbandry techniques, stock density and farming system and the breed and traditionality associated with it. This request was investigated by the Producer Group and documented by a survey/study which was presented to and endorsed by the Portuguese authorities.

The definition of the geographical production area was exclusively based on an administrative criterion when the dossier was first drawn up, and it is now recognised that consideration was not given to certain adjoining areas which, since they feature the same conditions with regard to soil and climate, husbandry techniques, stocking density, predominant vegetation, breed and farming system and practices, produce a product with physical, chemical and organoleptic characteristics that are identical to those of ‘Carnalentejana’. As a result, producers in those areas are suffering considerable economic losses, since they cannot market their products under the same designation as their neighbours.

3.   Method of production

The amendments applied for concern the possibility of presenting the meat products, suitably packaged, in a controlled atmosphere, in vacuum or blastfrozen. In order to guarantee the product's authenticity and quality, satisfy consumer protection requirements, facilitate monitoring and allow complete traceability of both the product and the process, all the meat cutting, processing and packaging operations must take place within the specified geographical area, together with the birth, rearing, fattening and slaughtering of the animals and the cutting of the carcasses. However, some of the processing/packaging operations may take place outside the geographical area so long as there exists no local processing structure able to meet the Group's requirements in terms of food hygiene and safety and control of operations. In such cases, the inspection system is intensified, traceability ensured and a maximum range of 500 km established for the transportation of the meat so as to avoid quality deterioration and facilitate checks.

4.   Labelling

The Producer Group has requested amendments to this section in order to conform to the new national and Community legislation in force. Irrespective of the commercial presentation and without prejudice to compliance with labelling requirements laid down in the general legislation, it is mandatory to use the term ‘CARNALENTEJANA — PDO’, the certification mark, the CARNALENTEJANA logo and the Community logo. Where the product is used as an ingredient in processed products, only the words ‘Elaborado a partir de CARNALENTEJANA — DOP’ (‘Made from CARNALENTEJANA — PDO’) may be used on the labelling, subject to certain licensing and monitoring requirements being complied with, and the use of the words ‘CARNALENTEJANA — PDO’, the Community logo or any other misleading term or indication liable to damage the PDO's reputation is expressly prohibited.

SUMMARY

COUNCIL REGULATION (EC) No 510/2006

‘CARNALENTEJANA’

EC No: PT/PDO/117/0209/08.04.2002

PDO ( X ) PGI ( )

This summary sets out the main elements of the product specification for information purposes.

1.   Responsible department in the Member State:

| Name: | Instituto de Desenvolvimento Rural e Hidráulica |
| --- | --- |
| Address: | Av. Afonso Costa, 3 |
| P-1949-002 Lisboa |

Name:

Instituto de Desenvolvimento Rural e Hidráulica

Address:

Av. Afonso Costa, 3

P-1949-002 Lisboa

Tel.

(351) 21 844 22 00

Fax

(351) 21 844 22 02

E-mail:

idrha@idrha.min-agricultura.pt

2.   Group:

| Name: | CARNALENTEJANA — Agrupamento de Produtores de Bovinos de Raça Alentejana, SA |
| --- | --- |
| Address: | Estrada do Moinho Vento |
| P-7350-230 Elvas |

Name:

CARNALENTEJANA — Agrupamento de Produtores de Bovinos de Raça Alentejana, SA

Address:

Estrada do Moinho Vento

P-7350-230 Elvas

Tel.

(351) 268 639480

Fax

(351) 268 622455

E-mail:

caalentejo@mail.telepac.pt

Composition:

Producers/processors ( X ) Other ( )

3.   Type of product:

Class 1.1: Fresh meat (and offal)

4.   Specification:

(Summary of requirements under Article 4(2) of Regulation (EC) No 510/2006)

4.1.   Name: ‘Carnalentejana’

4.2.   Description: Half-carcasses, quarter-carcasses, vacuum wrapped meat or meat wrapped in a controlled atmosphere, as well as preparations thereof, either chilled or frozen, from animals recorded in the Livro de Nascimentos da Raça Bovina Alentejana (Register of Births of Animals of the Alentejana Cattle Breed) and having the following characteristics:

In addition to the traditional forms — carcasses, complete pieces and sliced pieces —, CARNALENTEJANA can be marketed as minced, moulded or rolled meat pieces, cubes, strips, etc., packaged in cuvettes or other appropriate materials, in a controlled atmosphere, in vacuum or blastfrozen, with CARNALENTEJANA representing, as a rule, at least 95 % by weight of the final product. For preparations in which CARNALENTEJANA is used as an ingredient, it must be the only element in the ‘meat’ product group and must represent at least 60 % by weight of the final product.

4.3.   Geographical area: Taking into account: the geographical distribution of the montado (ecosystem featuring cork and holm oak trees) and the Alentejana cattle breed, the location of the agricultural holdings, that are consequently able to implement the required rearing and husbandry regime, the know-how associated with the rearing and husbandry of the animals, the rules governing the slaughter, cutting and production of carcasses, half-carcasses, pieces and processed products of bovine meat generally, the general requirements governing the inspection and traceability of bovine meat, the specific inspection and traceability requirements adopted by the producers of CARNALENTEJANA on their own initiative, the need not to defraud traditional consumers of CARNALENTEJANA, the overriding need to demonstrate the geographical and animal origin of each piece or package, and the need to offer consumers an authentic and reliable product, the geographical area of birth, rearing, fattening and slaughtering of animals, cutting of carcasses, half-carcasses and quarter-carcasses, cutting and slicing into bigger or smaller pieces, including fine-cutting, transforming certain pieces into minced and processed products and packaging of pieces, sliced products and processed products — is naturally limited to the following:

the municipalities belonging to the Distritos of Beja, Évora and Portalegre,

the municipalities of Alcácer do Sal, Alcochete, Grândola, Montijo, Moita, Palmela, Setúbal, Santiago do Cacém and Sines in the Distrito of Setúbal,

the municipalities of Abrantes, Almeirim, Alpiarça, Benavente, Chamusca, Constância, Coruche, Golegã, Mação, Salvaterra de Magos, Santarém, Sardoal and Vila Nova da Barquinha in the Distrito of Santarém,

the municipalities of Castelo Branco, Idanha-a-Nova, Proença-a-Nova and Vila Velha de Ródão in the Distrito of Castelo Branco.

4.4.   Proof of origin: The origin of the Alentejana cattle breed is established by custom. Work has been going on for over 40 years in the field of breed selection and improvement. There exist a studbook and a breeders' association.

The meat must come from animals of the Alentejana breed recorded in the breed's Register of Births, born, reared and fattened in holdings within the defined geographical area and having the required characteristics registered by the Group. The entire production line, including slaughtering, cutting, processing and packaging, must be carried out under the control of the competent entity. Monitoring covers all stages in the production line, notably since the birth of the animals and their entry in the Register, including feed and husbandry, through to the slaughtering, cutting, processing and packaging stages. A complete traceability system has been implemented, allowing to establish at any time the link between the product and the animal at the product's origin, by means of a numbered certification mark.

4.5.   Method of production: From animals of the Alentejana cattle breed recorded in the Register of Births, of parents inscribed in the studbook, reared extensively, with stocking densities lower than 1,4 animals per hectare, according to local traditional practices. Calves are milked by their mothers until they are 6-9 months of age, whereupon their feed is gradually supplemented by grazing and concentrated feedingstuffs authorised by the Group. Age brackets for slaughtering are defined and typified, as well as rules for feed and husbandry. CARNALENTEJANA can be marketed under the various forms stipulated in the specifications: carcasses, complete pieces and sliced pieces, simple processed products or preparations, with or without vegetables, adequately packaged, in a controlled atmosphere, in vacuum or blastfrozen. In order to guarantee the product's authenticity and quality, ensure the protection of consumer interests, enable monitoring and allow complete traceability of the product and the process, all the meat cutting, processing and packaging operations must take place within the specified geographical area, together with the birth, rearing, fattening and slaughtering of the animals and the cutting of the carcasses. However, some of the processing/packaging operations may take place outside the geographical area so long as there exists no local processing structure able to meet the Group's requirements in terms of food hygiene and safety and control of operations. In these circumstances, the inspection system is intensified, traceability is ensured and a maximum range of 500 km is established for the transportation of the meat so as to avoid quality deterioration and enable control.

4.6.   Link: The Alentejana cattle breed is reared on livestock farms in the Alentejo and neighbouring regions of Portugal with markedly Mediterranean agricultural and climatic conditions, hot dry summers and typically Mediterranean spontaneous pastures that give the meat special organoleptic characteristics. Production units normally consist of herds of a few tens of breeding cows, reared extensively in holdings where livestock production is normally symbiotic with cereals production. The complementarity of both productions has been a constant over time. The use of cereal straw and stubble for cattle feeding in Alentejo is normal and essential for the keeping of the herds as soon as natural pastures begin to be scarce, that is, during the period from early summer through winter. Grazing takes place normally in the subcoberto (herb layer) of the montados de azinho e sobro (holm and cork oak groves), where from the autumn onwards acorns provide a food reserve and an excellent supplement to grass, the nutritional value of the latter still being low at that time of the year.

4.7.   Inspection body:

| Name: | CERTIALENTEJO — Certificação de Produtos Agrícolas, Lda |
| --- | --- |
| Address: | Rua Diana de Liz — Horta do Bispo |
| Apartado 320 |
| P-7006-804 Évora |

Name:

CERTIALENTEJO — Certificação de Produtos Agrícolas, Lda

Address:

Rua Diana de Liz — Horta do Bispo

Apartado 320

P-7006-804 Évora

Tel.

(351) 26 676  95 64/5

Fax

(351) 26 676  95 66

E-mail:

geral@certialentejo.pt

CERTIALENTEJO — Certificação de Produtos Agrícolas, Lda has been recognised as meeting the requirements of 45011:2001.

4.8.   Labelling: Along with particulars imposed by general legislation, the following are also mandatory:

the term ‘CARNALENTEJANA — Denominação de Origem Protegida’,

the certification mark bearing the name of the product, the name of the monitoring and certification body and a serial number allowing product traceability,

the CARNALENTEJANA and the Community PDO logos, as reproduced below:

Under no circumstances may the name or company name and address of the producer be replaced by the name of any other organisation, even if it takes responsibility for the product, or packages or sells it.

The marketing name — Carnalentejana DOP — may not be supplemented by any other reference or mention, not even by the trademarks of distributors or others.

Foodstuffs containing CARNALENTEJANA may be marketed in packages bearing the reference ‘Elaborado a partir de CARNALENTEJANA — DOP’ (‘Made from CARNALENTEJANA — PDO’), provided:

Carnalentejana (certified as such) is the sole component of the product group ‘meat’ in the final product, and

Carnalentejana (certified as such) is the main component by weight in the final product, and

users of the product bearing this protected designation are authorised by the managing Producer Group.

The Group is also responsible for entering these users in specific records, which, once authorisation has been granted, must be inspected by the certification and control body regarding the correct use of the protected designation on the labelling and the quantities used. In such cases the use of the Community logo or any other logos or indications liable to damage the PDO's reputation is prohibited.

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(1)  OJ L 93, 31.3.2006, p. 12.

(2)  Carcasses of young bulls, heifers, bulls and cows classified as P are permitted if intended for cutting.

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