# Official Journal C 38E/15 F

| | ISSN 1725-2423 |
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| Official Journal
  of the European Union | C 38E |
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| English edition | Information and Notices | Volume 4815 February 2005 |

ISSN 1725-2423

Official Journal

of the European Union

C 38E

English edition

Information and Notices

Volume 4815 February 2005

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| Notice No | Contents | page |
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| | I   Information |
| | Council |
| 2005/C 038E/1 | Common Position (EC) No 6/2005 of 15 November 2004 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a directive of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (Unfair Commercial Practices Directive) | 1 |
| 2005/C 038E/2 | Common Position (EC) No 7/2005 of 15 November 2004 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a regulation of the European Parliament and of the Council amending Council Regulations (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 | 21 |
| 2005/C 038E/3 | Common Position (EC) No 8/2005 of 29 November 2004 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a regulation of the European Parliament and of the Council amending Council Regulations (EEC) No 2913/92 establishing the Community Customs Code | 36 |
| 2005/C 038E/4 | Common Position (EC) No 9/2005 of 29 November 2004 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a directive of the European Parliament and of the Council establishing a framework for the setting of ecodesign requirements for energy-using products and amending Council Directive 92/42/EEC and Directives 96/57/EC and 2000/55/EC of the European Parliament and of the Council | 45 |

Notice No

Contents

page

I   Information

Council

2005/C 038E/1

Common Position (EC) No 6/2005 of 15 November 2004 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a directive of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (Unfair Commercial Practices Directive)

1

2005/C 038E/2

Common Position (EC) No 7/2005 of 15 November 2004 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a regulation of the European Parliament and of the Council amending Council Regulations (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71

21

2005/C 038E/3

Common Position (EC) No 8/2005 of 29 November 2004 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a regulation of the European Parliament and of the Council amending Council Regulations (EEC) No 2913/92 establishing the Community Customs Code

36

2005/C 038E/4

Common Position (EC) No 9/2005 of 29 November 2004 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a directive of the European Parliament and of the Council establishing a framework for the setting of ecodesign requirements for energy-using products and amending Council Directive 92/42/EEC and Directives 96/57/EC and 2000/55/EC of the European Parliament and of the Council

45

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I Information

Council

| 15.2.2005 | EN | Official Journal of the European Union | CE 38/1 |
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15.2.2005

EN

Official Journal of the European Union

CE 38/1

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COMMON POSITION (EC) No 6/2005

adopted by the Council on 15 November 2004

with a view to adopting Directive 2005/.../EC of the European Parliament and of the Council of ... concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (Unfair Commercial Practices Directive)

(Text with EEA relevance)

(2005/C 38 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission,

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

Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),

Whereas:

| (1) | Article 153(1) and (3)(a) of the Treaty provides that the Community is to contribute to the attainment of a high level of consumer protection by the measures it adopts pursuant to Article 95 thereof. |
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(1)

Article 153(1) and (3)(a) of the Treaty provides that the Community is to contribute to the attainment of a high level of consumer protection by the measures it adopts pursuant to Article 95 thereof.

| (2) | In accordance with Article 14(2) of the Treaty, the internal market comprises an area without internal frontiers in which the free movement of goods and services and freedom of establishment are ensured. The development of fair commercial practices within the area without internal frontiers is vital for the promotion of the development of cross-border activities. |
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(2)

In accordance with Article 14(2) of the Treaty, the internal market comprises an area without internal frontiers in which the free movement of goods and services and freedom of establishment are ensured. The development of fair commercial practices within the area without internal frontiers is vital for the promotion of the development of cross-border activities.

| (3) | The laws of the Member States relating to unfair commercial practices show marked differences which can generate appreciable distortions of competition and obstacles to the smooth functioning of the internal market. In the field of advertising, Council Directive 84/450/EEC of 10 September 1984 concerning misleading and comparative advertising (3) establishes minimum criteria for harmonising legislation on misleading advertising, but does not prevent the Member States from retaining or adopting measures which provide more extensive protection for consumers. As a result, Member States' provisions on misleading advertising diverge significantly. |
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(3)

The laws of the Member States relating to unfair commercial practices show marked differences which can generate appreciable distortions of competition and obstacles to the smooth functioning of the internal market. In the field of advertising, Council Directive 84/450/EEC of 10 September 1984 concerning misleading and comparative advertising (3) establishes minimum criteria for harmonising legislation on misleading advertising, but does not prevent the Member States from retaining or adopting measures which provide more extensive protection for consumers. As a result, Member States' provisions on misleading advertising diverge significantly.

| (4) | These disparities cause uncertainty as to which national rules apply to unfair commercial practices harming consumers' economic interests and create many barriers affecting business and consumers. These barriers increase the cost to business of exercising internal market freedoms, in particular when businesses wish to engage in cross border marketing, advertising campaigns and sales promotions. Such barriers also make consumers uncertain of their rights and undermine their confidence in the internal market. |
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(4)

These disparities cause uncertainty as to which national rules apply to unfair commercial practices harming consumers' economic interests and create many barriers affecting business and consumers. These barriers increase the cost to business of exercising internal market freedoms, in particular when businesses wish to engage in cross border marketing, advertising campaigns and sales promotions. Such barriers also make consumers uncertain of their rights and undermine their confidence in the internal market.

| (5) | In the absence of uniform rules at Community level, obstacles to the free movement of services and goods across borders or the freedom of establishment could be justified in the light of the case-law of the Court of Justice of the European Communities as long as they seek to protect recognised public interest objectives and are proportionate to those objectives. In view of the Community's objectives, as set out in the provisions of the Treaty and in secondary Community law relating to freedom of movement, and in accordance with the Commission's policy on commercial communications as indicated in the Communication from the Commission entitled ‘The follow-up to the Green Paper on Commercial Communications in the Internal Market’, such obstacles should be eliminated. These obstacles can only be eliminated by establishing uniform rules at Community level which establish a high level of consumer protection and by clarifying certain legal concepts at Community level to the extent necessary for the proper functioning of the internal market and to meet the requirement of legal certainty. |
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(5)

In the absence of uniform rules at Community level, obstacles to the free movement of services and goods across borders or the freedom of establishment could be justified in the light of the case-law of the Court of Justice of the European Communities as long as they seek to protect recognised public interest objectives and are proportionate to those objectives. In view of the Community's objectives, as set out in the provisions of the Treaty and in secondary Community law relating to freedom of movement, and in accordance with the Commission's policy on commercial communications as indicated in the Communication from the Commission entitled ‘The follow-up to the Green Paper on Commercial Communications in the Internal Market’, such obstacles should be eliminated. These obstacles can only be eliminated by establishing uniform rules at Community level which establish a high level of consumer protection and by clarifying certain legal concepts at Community level to the extent necessary for the proper functioning of the internal market and to meet the requirement of legal certainty.

| (6) | This Directive therefore approximates the laws of the Member States on unfair commercial practices, including unfair advertising, which directly harm consumers' economic interests and thereby indirectly harm the economic interests of legitimate competitors. In line with the principle of proportionality, this Directive protects consumers from the consequences of such unfair commercial practices where they are material but recognises that in some cases the impact on consumers may be negligible. It neither covers nor affects the national laws on unfair commercial practices which harm only competitors' economic interests or which relate to a transaction between traders; taking full account of the principle of subsidiarity, Member States will continue to be able to regulate such practices, in conformity with Community law, if they choose to do so. Nor does this Directive cover or affect the provisions of Directive 84/450/EEC on advertising which misleads business but which is not misleading for consumers and on comparative advertising. Further, this Directive does not affect accepted advertising and marketing practices, such as legitimate product placement, brand differentiation or the offering of incentives which may legitimately affect consumers' perceptions of products and influence their behaviour without impairing the consumer's ability to make an informed decision. |
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(6)

This Directive therefore approximates the laws of the Member States on unfair commercial practices, including unfair advertising, which directly harm consumers' economic interests and thereby indirectly harm the economic interests of legitimate competitors. In line with the principle of proportionality, this Directive protects consumers from the consequences of such unfair commercial practices where they are material but recognises that in some cases the impact on consumers may be negligible. It neither covers nor affects the national laws on unfair commercial practices which harm only competitors' economic interests or which relate to a transaction between traders; taking full account of the principle of subsidiarity, Member States will continue to be able to regulate such practices, in conformity with Community law, if they choose to do so. Nor does this Directive cover or affect the provisions of Directive 84/450/EEC on advertising which misleads business but which is not misleading for consumers and on comparative advertising. Further, this Directive does not affect accepted advertising and marketing practices, such as legitimate product placement, brand differentiation or the offering of incentives which may legitimately affect consumers' perceptions of products and influence their behaviour without impairing the consumer's ability to make an informed decision.

| (7) | This Directive addresses commercial practices directly related to influencing consumers' transactional decisions in relation to products. It does not address commercial practices carried out primarily for other purposes, including for example commercial communication aimed at investors, such as annual reports and corporate promotional literature. It does not address legal requirements related to taste and decency which vary widely among the Member States. Commercial practices such as, for example, commercial solicitation in the streets, may be undesirable in Member States for cultural reasons. Member States should accordingly be able to continue to ban commercial practices in their territory, in conformity with Community law, for reasons of taste and decency even where such practices do not limit consumers' freedom of choice. |
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(7)

This Directive addresses commercial practices directly related to influencing consumers' transactional decisions in relation to products. It does not address commercial practices carried out primarily for other purposes, including for example commercial communication aimed at investors, such as annual reports and corporate promotional literature. It does not address legal requirements related to taste and decency which vary widely among the Member States. Commercial practices such as, for example, commercial solicitation in the streets, may be undesirable in Member States for cultural reasons. Member States should accordingly be able to continue to ban commercial practices in their territory, in conformity with Community law, for reasons of taste and decency even where such practices do not limit consumers' freedom of choice.

| (8) | This Directive directly protects consumer economic interests from unfair business-to-consumer commercial practices. Thereby, it also indirectly protects legitimate businesses from their competitors who do not play by the rules in this Directive and thus guarantees fair competition in fields coordinated by it. It is understood that there are other commercial practices which, although not harming consumers, may hurt competitors and business customers. The Commission should carefully examine the need for Community action in the field of unfair competition beyond the remit of this Directive and, if necessary, make a legislative proposal to cover these other aspects of unfair competition. |
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(8)

This Directive directly protects consumer economic interests from unfair business-to-consumer commercial practices. Thereby, it also indirectly protects legitimate businesses from their competitors who do not play by the rules in this Directive and thus guarantees fair competition in fields coordinated by it. It is understood that there are other commercial practices which, although not harming consumers, may hurt competitors and business customers. The Commission should carefully examine the need for Community action in the field of unfair competition beyond the remit of this Directive and, if necessary, make a legislative proposal to cover these other aspects of unfair competition.

| (9) | This Directive is without prejudice to individual actions brought by those who have been harmed by an unfair commercial practice. It is also without prejudice to Community and national rules on contract law, on intellectual property rights, on the health and safety aspects of products, on conditions of establishment and authorisation regimes, including those rules which, in conformity with Community law, relate to gambling activities, and to Community competition rules and the national provisions implementing them. The Member States will thus be able to retain or introduce restrictions and prohibitions of commercial practices on grounds of the protection of the health and safety of consumers in their territory wherever the trader is based, for example in relation to alcohol, tobacco or pharmaceuticals. Financial services and immovable property, by reason of their complexity and inherent serious risks, necessitate detailed requirements, including positive obligations on traders. For this reason, in the field of financial services and immovable property, this Directive is without prejudice to the right of Member States to go beyond its provisions to protect the economic interests of consumers. It is not appropriate to regulate here the certification and indication of the standard of fineness of articles of precious metal. |
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(9)

This Directive is without prejudice to individual actions brought by those who have been harmed by an unfair commercial practice. It is also without prejudice to Community and national rules on contract law, on intellectual property rights, on the health and safety aspects of products, on conditions of establishment and authorisation regimes, including those rules which, in conformity with Community law, relate to gambling activities, and to Community competition rules and the national provisions implementing them. The Member States will thus be able to retain or introduce restrictions and prohibitions of commercial practices on grounds of the protection of the health and safety of consumers in their territory wherever the trader is based, for example in relation to alcohol, tobacco or pharmaceuticals. Financial services and immovable property, by reason of their complexity and inherent serious risks, necessitate detailed requirements, including positive obligations on traders. For this reason, in the field of financial services and immovable property, this Directive is without prejudice to the right of Member States to go beyond its provisions to protect the economic interests of consumers. It is not appropriate to regulate here the certification and indication of the standard of fineness of articles of precious metal.

| (10) | It is necessary to ensure that the relationship between this Directive and existing Community law is coherent, particularly where detailed provisions on unfair commercial practices apply to specific sectors. This Directive therefore amends Directive 84/450/EEC, Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (4), Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumers' interests (5) and Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services (6). This Directive accordingly applies only in so far as there are no specific Community law provisions regulating specific aspects of unfair commercial practices, such as information requirements and rules on the way the information is presented to the consumer. It provides protection for consumers where there is no specific sectoral legislation at Community level and prohibits traders from creating a false impression of the nature of products. This is particularly important for complex products with high levels of risk to consumers, such as certain financial services products. This Directive consequently complements the Community acquis, which is applicable to commercial practices harming consumers' economic interests. |
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(10)

It is necessary to ensure that the relationship between this Directive and existing Community law is coherent, particularly where detailed provisions on unfair commercial practices apply to specific sectors. This Directive therefore amends Directive 84/450/EEC, Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (4), Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumers' interests (5) and Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services (6). This Directive accordingly applies only in so far as there are no specific Community law provisions regulating specific aspects of unfair commercial practices, such as information requirements and rules on the way the information is presented to the consumer. It provides protection for consumers where there is no specific sectoral legislation at Community level and prohibits traders from creating a false impression of the nature of products. This is particularly important for complex products with high levels of risk to consumers, such as certain financial services products. This Directive consequently complements the Community acquis, which is applicable to commercial practices harming consumers' economic interests.

| (11) | The high level of convergence achieved by the approximation of national provisions through this Directive creates a high common level of consumer protection. This Directive establishes a single general prohibition of those unfair commercial practices distorting consumers' economic behaviour. It also sets rules on aggressive commercial practices, which are currently not regulated at Community level. |
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(11)

The high level of convergence achieved by the approximation of national provisions through this Directive creates a high common level of consumer protection. This Directive establishes a single general prohibition of those unfair commercial practices distorting consumers' economic behaviour. It also sets rules on aggressive commercial practices, which are currently not regulated at Community level.

| (12) | Harmonisation will considerably increase legal certainty for both consumers and business. Both consumers and business will be able to rely on a single regulatory framework based on clearly defined legal concepts regulating all aspects of unfair commercial practices across the EU. The effect will be to eliminate the barriers stemming from the fragmentation of the rules on unfair commercial practices harming consumer economic interests and to enable the internal market to be achieved in this area. |
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(12)

Harmonisation will considerably increase legal certainty for both consumers and business. Both consumers and business will be able to rely on a single regulatory framework based on clearly defined legal concepts regulating all aspects of unfair commercial practices across the EU. The effect will be to eliminate the barriers stemming from the fragmentation of the rules on unfair commercial practices harming consumer economic interests and to enable the internal market to be achieved in this area.

| (13) | In order to achieve the Community's objectives through the removal of internal market barriers, it is necessary to replace Member States' existing, divergent general clauses and legal principles. The single, common general prohibition established by this Directive therefore covers unfair commercial practices distorting consumers' economic behaviour. In order to support consumer confidence the general prohibition should apply equally to unfair commercial practices which occur outside any contractual relationship between a trader and a consumer or following the conclusion of a contract and during its execution. The general prohibition is elaborated by rules on the two types of commercial practices which are by far the most common, namely misleading commercial practices and aggressive commercial practices. |
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(13)

In order to achieve the Community's objectives through the removal of internal market barriers, it is necessary to replace Member States' existing, divergent general clauses and legal principles. The single, common general prohibition established by this Directive therefore covers unfair commercial practices distorting consumers' economic behaviour. In order to support consumer confidence the general prohibition should apply equally to unfair commercial practices which occur outside any contractual relationship between a trader and a consumer or following the conclusion of a contract and during its execution. The general prohibition is elaborated by rules on the two types of commercial practices which are by far the most common, namely misleading commercial practices and aggressive commercial practices.

| (14) | It is desirable that misleading commercial practices cover those practices, including misleading advertising, which by deceiving the consumer prevent him from making an informed and thus efficient choice. In conformity with the laws and practices of Member States on misleading advertising, this Directive classifies misleading practices into misleading actions and misleading omissions. In respect of omissions, this Directive sets out a limited number of key items of information which the consumer needs to make an informed transactional decision. Such information will not have to be disclosed in all advertisements, but only where the trader makes an invitation to purchase, which is a concept clearly defined in this Directive. The full harmonisation approach adopted in this Directive does not preclude the Member States from specifying in national law the main characteristics of particular products such as, for example, collectors' items or electrical goods, the omission of which would be material when an invitation to purchase is made. It is not the intention of this Directive to reduce consumer choice by prohibiting the promotion of products which look similar to other products unless this similarity confuses consumers as to the commercial origin of the product and is therefore misleading. This Directive should be without prejudice to existing Community law which expressly affords Member States the choice between several regulatory options for the protection of consumers in the field of commercial practices. In particular, this Directive should be without prejudice to Article 13(3) of 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 (7). |
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(14)

It is desirable that misleading commercial practices cover those practices, including misleading advertising, which by deceiving the consumer prevent him from making an informed and thus efficient choice. In conformity with the laws and practices of Member States on misleading advertising, this Directive classifies misleading practices into misleading actions and misleading omissions. In respect of omissions, this Directive sets out a limited number of key items of information which the consumer needs to make an informed transactional decision. Such information will not have to be disclosed in all advertisements, but only where the trader makes an invitation to purchase, which is a concept clearly defined in this Directive. The full harmonisation approach adopted in this Directive does not preclude the Member States from specifying in national law the main characteristics of particular products such as, for example, collectors' items or electrical goods, the omission of which would be material when an invitation to purchase is made. It is not the intention of this Directive to reduce consumer choice by prohibiting the promotion of products which look similar to other products unless this similarity confuses consumers as to the commercial origin of the product and is therefore misleading. This Directive should be without prejudice to existing Community law which expressly affords Member States the choice between several regulatory options for the protection of consumers in the field of commercial practices. In particular, this Directive should be without prejudice to Article 13(3) of 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 (7).

| (15) | Where Community law sets out information requirements in relation to commercial communication, advertising and marketing that information is considered as material under this Directive. Member States will be able to retain or add information requirements relating to contract law and having contract law consequences where this is allowed by the minimum clauses in the existing Community law instruments. A non-exhaustive list of such information requirements in the acquis is contained in Annex II. Given the full harmonisation introduced by this Directive only the information required in Community law is considered as material for the purpose of Article 7(5) thereof. Where Member States have introduced information requirements over and above what is specified in Community law, on the basis of minimum clauses, the omission of that extra information will not constitute a misleading omission under this Directive. By contrast Member States will be able, when allowed by the minimum clauses in Community law, to maintain or introduce more stringent provisions in conformity with Community law so as to ensure a higher level of protection of consumers' individual contractual rights. |
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(15)

Where Community law sets out information requirements in relation to commercial communication, advertising and marketing that information is considered as material under this Directive. Member States will be able to retain or add information requirements relating to contract law and having contract law consequences where this is allowed by the minimum clauses in the existing Community law instruments. A non-exhaustive list of such information requirements in the acquis is contained in Annex II. Given the full harmonisation introduced by this Directive only the information required in Community law is considered as material for the purpose of Article 7(5) thereof. Where Member States have introduced information requirements over and above what is specified in Community law, on the basis of minimum clauses, the omission of that extra information will not constitute a misleading omission under this Directive. By contrast Member States will be able, when allowed by the minimum clauses in Community law, to maintain or introduce more stringent provisions in conformity with Community law so as to ensure a higher level of protection of consumers' individual contractual rights.

| (16) | The provisions on aggressive commercial practices should cover those practices which significantly impair the consumer's freedom of choice. Those are practices using harassment, coercion, including the use of physical force, and undue influence. |
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(16)

The provisions on aggressive commercial practices should cover those practices which significantly impair the consumer's freedom of choice. Those are practices using harassment, coercion, including the use of physical force, and undue influence.

| (17) | It is desirable that those commercial practices which are in all circumstances unfair be identified to provide greater legal certainty. Annex I therefore contains the full list of all such practices. These are the only commercial practices which can be deemed to be unfair without a case-by-case assessment against the provisions of Articles 5 to 9. |
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(17)

It is desirable that those commercial practices which are in all circumstances unfair be identified to provide greater legal certainty. Annex I therefore contains the full list of all such practices. These are the only commercial practices which can be deemed to be unfair without a case-by-case assessment against the provisions of Articles 5 to 9.

| (18) | It is appropriate to protect all consumers from unfair commercial practices; however the Court of Justice has found it necessary in adjudicating on advertising cases since the enactment of Directive 84/450/EEC to examine the effect on a notional, typical consumer. In line with the principle of proportionality, and to permit the effective application of the protections contained in it, this Directive takes as a benchmark the average consumer as interpreted by the Court of Justice but also contains provisions aimed at preventing the exploitation of consumers whose characteristics make them particularly vulnerable to unfair commercial practices. Where a commercial practice is specifically aimed at a particular group of consumers, such as children, it is desirable that the impact of the commercial practice be assessed from the perspective of the average member of that group. The average consumer test is not a statistical test. National courts and authorities will have to exercise their own faculty of judgement, having regard to the case-law of the Court of Justice, to determine the typical reaction of the average consumer in a given case. |
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(18)

It is appropriate to protect all consumers from unfair commercial practices; however the Court of Justice has found it necessary in adjudicating on advertising cases since the enactment of Directive 84/450/EEC to examine the effect on a notional, typical consumer. In line with the principle of proportionality, and to permit the effective application of the protections contained in it, this Directive takes as a benchmark the average consumer as interpreted by the Court of Justice but also contains provisions aimed at preventing the exploitation of consumers whose characteristics make them particularly vulnerable to unfair commercial practices. Where a commercial practice is specifically aimed at a particular group of consumers, such as children, it is desirable that the impact of the commercial practice be assessed from the perspective of the average member of that group. The average consumer test is not a statistical test. National courts and authorities will have to exercise their own faculty of judgement, having regard to the case-law of the Court of Justice, to determine the typical reaction of the average consumer in a given case.

| (19) | Where certain characteristics such as age, physical or mental infirmity or credulity make consumers particularly susceptible to a commercial practice or to the underlying product and the economic behaviour only of such consumers is likely to be distorted by the practice in a way that the trader can reasonably foresee, it is appropriate to ensure that they are adequately protected by assessing the practice from the perspective of the average member of that group. |
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(19)

Where certain characteristics such as age, physical or mental infirmity or credulity make consumers particularly susceptible to a commercial practice or to the underlying product and the economic behaviour only of such consumers is likely to be distorted by the practice in a way that the trader can reasonably foresee, it is appropriate to ensure that they are adequately protected by assessing the practice from the perspective of the average member of that group.

| (20) | It is appropriate to provide a role for codes of conduct, which enable traders to apply the principles of this Directive effectively in specific economic fields. In sectors where there are specific mandatory requirements regulating the behaviour of traders, it is appropriate that these will also provide evidence as to the requirements of professional diligence in that sector. The control exercised by code owners at national or Community level to eliminate unfair commercial practices may avoid the need for recourse to administrative or judicial action and should therefore be encouraged. With the aim of pursuing a high level of consumer protection, consumers' organisations could be informed and involved in the drafting of codes of conduct. |
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(20)

It is appropriate to provide a role for codes of conduct, which enable traders to apply the principles of this Directive effectively in specific economic fields. In sectors where there are specific mandatory requirements regulating the behaviour of traders, it is appropriate that these will also provide evidence as to the requirements of professional diligence in that sector. The control exercised by code owners at national or Community level to eliminate unfair commercial practices may avoid the need for recourse to administrative or judicial action and should therefore be encouraged. With the aim of pursuing a high level of consumer protection, consumers' organisations could be informed and involved in the drafting of codes of conduct.

| (21) | Persons or organisations regarded under national law as having a legitimate interest in the matter must have legal remedies for initiating proceedings against unfair commercial practices, either before a court or before an administrative authority which is competent to decide upon complaints or to initiate appropriate legal proceedings. While it is for national law to determine the burden of proof, it is appropriate to enable courts and administrative authorities to require traders to produce evidence as to the accuracy of factual claims they have made. |
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(21)

Persons or organisations regarded under national law as having a legitimate interest in the matter must have legal remedies for initiating proceedings against unfair commercial practices, either before a court or before an administrative authority which is competent to decide upon complaints or to initiate appropriate legal proceedings. While it is for national law to determine the burden of proof, it is appropriate to enable courts and administrative authorities to require traders to produce evidence as to the accuracy of factual claims they have made.

| (22) | It is necessary that Member States lay down penalties for infringements of the provisions of this Directive and they must ensure that these are enforced. The penalties must be effective, proportionate and dissuasive. |
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(22)

It is necessary that Member States lay down penalties for infringements of the provisions of this Directive and they must ensure that these are enforced. The penalties must be effective, proportionate and dissuasive.

| (23) | Since the objectives of this Directive, namely to eliminate the barriers to the functioning of the internal market represented by national laws on unfair commercial practices and to provide a high common level of consumer protection, by approximating the laws, regulations and administrative provisions of the Member States on unfair commercial practices, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to eliminate the internal market barriers and achieve a high common level of consumer protection. |
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(23)

Since the objectives of this Directive, namely to eliminate the barriers to the functioning of the internal market represented by national laws on unfair commercial practices and to provide a high common level of consumer protection, by approximating the laws, regulations and administrative provisions of the Member States on unfair commercial practices, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to eliminate the internal market barriers and achieve a high common level of consumer protection.

| (24) | It is appropriate to review this Directive to ensure that barriers to the internal market have been addressed and a high level of consumer protection achieved. The review could lead to a Commission proposal to amend this Directive, which may include a limited extension to the derogation in Article 3(5), and/or amendments to other consumer protection legislation reflecting the Commission's Consumer Policy Strategy commitment to review the existing acquis in order to achieve a high, common level of consumer protection. |
| --- | --- |

(24)

It is appropriate to review this Directive to ensure that barriers to the internal market have been addressed and a high level of consumer protection achieved. The review could lead to a Commission proposal to amend this Directive, which may include a limited extension to the derogation in Article 3(5), and/or amendments to other consumer protection legislation reflecting the Commission's Consumer Policy Strategy commitment to review the existing acquis in order to achieve a high, common level of consumer protection.

| (25) | This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, |
| --- | --- |

(25)

This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER 1

GENERAL PROVISIONS

Article 1

Purpose

The purpose of this Directive is to contribute to the proper functioning of the internal market and achieve a high level of consumer protection by approximating the laws, regulations and administrative provisions of the Member States on unfair commercial practices harming consumers' economic interests.

Article 2

Definitions

For the purposes of this Directive:

| (a) | ‘consumer’ means any natural person who, in commercial practices covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession; |
| --- | --- |

(a)

‘consumer’ means any natural person who, in commercial practices covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession;

| (b) | ‘trader’ means any natural or legal person who, in commercial practices covered by this Directive, is acting for purposes relating to his trade, business, craft or profession and anyone acting in the name of or on behalf of a trader; |
| --- | --- |

(b)

‘trader’ means any natural or legal person who, in commercial practices covered by this Directive, is acting for purposes relating to his trade, business, craft or profession and anyone acting in the name of or on behalf of a trader;

| (c) | ‘product’ means any good or service including immovable property, rights and obligations; |
| --- | --- |

(c)

‘product’ means any good or service including immovable property, rights and obligations;

| (d) | ‘business-to-consumer commercial practices’ (hereinafter also referred to as ‘commercial practices’) means any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers; |
| --- | --- |

(d)

‘business-to-consumer commercial practices’ (hereinafter also referred to as ‘commercial practices’) means any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers;

| (e) | ‘to materially distort the economic behaviour of consumers’ means using a commercial practice to appreciably impair the consumer's ability to make an informed decision, thereby causing the consumer to take a transactional decision that he would not have taken otherwise; |
| --- | --- |

(e)

‘to materially distort the economic behaviour of consumers’ means using a commercial practice to appreciably impair the consumer's ability to make an informed decision, thereby causing the consumer to take a transactional decision that he would not have taken otherwise;

| (f) | ‘code of conduct’ means an agreement or set of rules not imposed by law, regulation or administrative provision of a Member State which defines the behaviour of traders who undertake to be bound by the code in relation to one or more particular commercial practices or business sectors; |
| --- | --- |

(f)

‘code of conduct’ means an agreement or set of rules not imposed by law, regulation or administrative provision of a Member State which defines the behaviour of traders who undertake to be bound by the code in relation to one or more particular commercial practices or business sectors;

| (g) | ‘code owner’ means any entity, including a trader or group of traders, which is responsible for the formulation and revision of a code of conduct and/or for monitoring compliance with the code by those who have undertaken to be bound by it; |
| --- | --- |

(g)

‘code owner’ means any entity, including a trader or group of traders, which is responsible for the formulation and revision of a code of conduct and/or for monitoring compliance with the code by those who have undertaken to be bound by it;

| (h) | ‘professional diligence’ means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers, commensurate with honest market practice and/or the general principle of good faith in the trader's field of activity; |
| --- | --- |

(h)

‘professional diligence’ means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers, commensurate with honest market practice and/or the general principle of good faith in the trader's field of activity;

| (i) | ‘invitation to purchase’ means a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase; |
| --- | --- |

(i)

‘invitation to purchase’ means a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase;

| (j) | ‘undue influence’ means exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer's ability to make an informed decision; |
| --- | --- |

(j)

‘undue influence’ means exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer's ability to make an informed decision;

| (k) | ‘transactional decision’ means any decision taken by a consumer concerning whether, how and on what terms to purchase, make payment in whole or in part for, retain or dispose of a product or to exercise a contractual right in relation to the product, whether the consumer decides to act or to refrain from acting; |
| --- | --- |

(k)

‘transactional decision’ means any decision taken by a consumer concerning whether, how and on what terms to purchase, make payment in whole or in part for, retain or dispose of a product or to exercise a contractual right in relation to the product, whether the consumer decides to act or to refrain from acting;

| (l) | ‘regulated profession’ means a professional activity or a group of professional activities, access to which or the pursuit of which, or one of the modes of pursuing which, is conditional, directly or indirectly, upon possession of specific professional qualifications, pursuant to laws, regulations or administrative provisions. |
| --- | --- |

(l)

‘regulated profession’ means a professional activity or a group of professional activities, access to which or the pursuit of which, or one of the modes of pursuing which, is conditional, directly or indirectly, upon possession of specific professional qualifications, pursuant to laws, regulations or administrative provisions.

Article 3

Scope

1.   This Directive shall apply to unfair business-to-consumer commercial practices, as laid down in Article 5, before, during and after a commercial transaction in relation to a product.

2.   This Directive is without prejudice to contract law and, in particular, to the rules on the validity, formation or effect of a contract.

3.   This Directive is without prejudice to Community or national rules relating to the health and safety aspects of products.

4.   In the case of conflict between the provisions of this Directive and other Community rules regulating specific aspects of unfair commercial practices, the latter shall prevail and apply to those specific aspects.

5.   For a period of six years from (8), Member States shall be able to apply national provisions within the field approximated by this Directive which are more restrictive or prescriptive than this Directive and which implement directives containing minimum harmonisation clauses. These measures must be essential to ensure that consumers are adequately protected against unfair commercial practices and must be proportionate to the attainment of this objective. The review referred to in Article 18 may, if considered appropriate, include a proposal to prolong this derogation for a further limited period.

6.   Member States shall notify the Commission without delay of any national provisions applied on the basis of paragraph 5.

7.   This Directive is without prejudice to the rules determining the jurisdiction of the courts.

8.   This Directive is without prejudice to any conditions of establishment or of authorisation regimes, or to the deontological codes of conduct or other specific rules governing regulated professions in order to uphold high standards of integrity on the part of the professional, which Member States may, in conformity with Community law, impose on professionals.

9.   In relation to ‘financial services’, as defined in Directive 2002/65/EC, and immovable property, Member States may impose requirements which are more restrictive or prescriptive than this Directive in the field which it approximates.

10.   This Directive shall not apply to the application of the laws, regulations and administrative provisions of Member States relating to the certification and indication of the standard of fineness of articles of precious metal.

Article 4

Internal market

Member States shall neither restrict the freedom to provide services nor restrict the free movement of goods for reasons falling within the field approximated by this Directive.

CHAPTER 2

UNFAIR COMMERCIAL PRACTICES

Article 5

Prohibition of unfair commercial practices

1.   Unfair commercial practices shall be prohibited.

2.   A commercial practice shall be unfair if:

| (a) | it is contrary to the requirements of professional diligence, and |
| --- | --- |

(a)

it is contrary to the requirements of professional diligence, and

| (b) | it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers. |
| --- | --- |

(b)

it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers.

3.   Commercial practices which reach the generality of consumers, but are likely to materially distort the economic behaviour only of a group of consumers who are particularly vulnerable to the practice or the underlying product because of their mental or physical infirmity, age or credulity in a way which the trader could reasonably be expected to foresee, shall be assessed from the perspective of the average member of that group. This is without prejudice to the common and legitimate advertising practice of making exaggerated statements or statements which are not meant to be taken literally.

4.   In particular, commercial practices shall be unfair which:

| (a) | are misleading as set out in Articles 6 and 7, or |
| --- | --- |

(a)

are misleading as set out in Articles 6 and 7, or

| (b) | are aggressive as set out in Articles 8 and 9. |
| --- | --- |

(b)

are aggressive as set out in Articles 8 and 9.

5.   Annex I contains the list of those commercial practices which shall in all circumstances be regarded as unfair.

SECTION 1

MISLEADING COMMERCIAL PRACTICES

Article 6

Misleading actions

1.   A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:

| (a) | the existence or nature of the product; |
| --- | --- |

(a)

the existence or nature of the product;

| (b) | the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product; |
| --- | --- |

(b)

the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product;

| (c) | the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product; |
| --- | --- |

(c)

the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;

| (d) | the price or the manner in which the price is calculated, or the existence of a specific price advantage; |
| --- | --- |

(d)

the price or the manner in which the price is calculated, or the existence of a specific price advantage;

| (e) | the need for a service, part, replacement or repair; |
| --- | --- |

(e)

the need for a service, part, replacement or repair;

| (f) | the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions; |
| --- | --- |

(f)

the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions;

| (g) | the consumer's rights or the risks he may face. |
| --- | --- |

(g)

the consumer's rights or the risks he may face.

2.   A commercial practice shall also be regarded as misleading where, in its factual context, taking account of all its features and circumstances, it thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:

| (a) | any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names and other distinguishing marks of a competitor; |
| --- | --- |

(a)

any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names and other distinguishing marks of a competitor;

| (b) | non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:






  (i) | the commitment is not aspirational but is firm and is capable of being verified, and |
| --- | --- | --- |

(b)

non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:

(i)

the commitment is not aspirational but is firm and is capable of being verified, and

| (ii) | the trader indicates in a commercial practice that he is bound by the code. |
| --- | --- |

(ii)

the trader indicates in a commercial practice that he is bound by the code.

Article 7

Misleading omissions

1.   A commercial practice shall be regarded as misleading which, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.

2.   It shall also be regarded as a misleading omission when a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in paragraph 1 or fails to identify the commercial intent of the commercial practice if not already apparent from the context.

3.   Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted.

4.   In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

| (a) | the main characteristics of the product, to an extent appropriate to the medium and the product; |
| --- | --- |

(a)

the main characteristics of the product, to an extent appropriate to the medium and the product;

| (b) | the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting; |
| --- | --- |

(b)

the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting;

| (c) | the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable; |
| --- | --- |

(c)

the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;

| (d) | the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence; |
| --- | --- |

(d)

the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence;

| (e) | for products and transactions involving a right of withdrawal or cancellation, the existence of such a right. |
| --- | --- |

(e)

for products and transactions involving a right of withdrawal or cancellation, the existence of such a right.

5.   Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material.

SECTION 2

AGGRESSIVE COMMERCIAL PRACTICES

Article 8

Aggressive commercial practices

A commercial practice shall be regarded as aggressive if, in its factual context, taking account of all its features and circumstances, by harassment, coercion, including the use of physical force, or undue influence, it significantly impairs or is likely to significantly impair the average consumer's freedom of choice or conduct with regard to the product and thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise.

Article 9

Use of harassment, coercion and undue influence

In determining whether a commercial practice uses harassment, coercion, including the use of physical force, or undue influence, account shall be taken of:

| (a) | its timing, location, nature or persistence; |
| --- | --- |

(a)

its timing, location, nature or persistence;

| (b) | the use of threatening or abusive language or behaviour; |
| --- | --- |

(b)

the use of threatening or abusive language or behaviour;

| (c) | the exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair the consumer's judgement, of which the trader is aware, to influence the consumer's decision with regard to the product; |
| --- | --- |

(c)

the exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair the consumer's judgement, of which the trader is aware, to influence the consumer's decision with regard to the product;

| (d) | any onerous or disproportionate non-contractual barriers imposed by the trader where a consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader; |
| --- | --- |

(d)

any onerous or disproportionate non-contractual barriers imposed by the trader where a consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader;

| (e) | any threat to take any action that cannot legally be taken. |
| --- | --- |

(e)

any threat to take any action that cannot legally be taken.

CHAPTER 3

CODES OF CONDUCT

Article 10

Codes of conduct

This Directive does not exclude the control, which Member States may encourage, of unfair commercial practices by code owners and recourse to such bodies by the persons or organisations referred to in Article 11 if proceedings before such bodies are in addition to the court or administrative proceedings referred to in that Article.

CHAPTER 4

FINAL PROVISIONS

Article 11

Enforcement

1.   Member States shall ensure that adequate and effective means exist to combat unfair commercial practices and for compliance with the provisions of this Directive in the interest of consumers.

Such means shall include legal provisions under which persons or organisations regarded under national law as having a legitimate interest in combating unfair commercial practices, including competitors, may:

| — | take legal action against such unfair commercial practices; and/or |
| --- | --- |

—

take legal action against such unfair commercial practices; and/or

| — | bring such unfair commercial practices before an administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings. |
| --- | --- |

—

bring such unfair commercial practices before an administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings.

It shall be for each Member State to decide which of these facilities shall be available and whether to enable the courts or administrative authorities to require prior recourse to other established means of dealing with complaints, including those referred to in Article 10. These facilities shall be available regardless of whether the consumers affected are in the territory of the Member State where the trader is located or in another Member State.

It shall be for each Member State to decide:

| — | whether these legal facilities may be directed separately or jointly against a number of traders from the same economic sector; and |
| --- | --- |

—

whether these legal facilities may be directed separately or jointly against a number of traders from the same economic sector; and

| — | whether these legal facilities may be directed against a code owner where the relevant code promotes non-compliance with legal requirements. |
| --- | --- |

—

whether these legal facilities may be directed against a code owner where the relevant code promotes non-compliance with legal requirements.

2.   Under the legal provisions referred to in paragraph 1, Member States shall confer upon the courts or administrative authorities powers enabling them, in cases where they deem such measures to be necessary taking into account all the interests involved and in particular the public interest:

| — | to order the cessation of, or to institute appropriate legal proceedings for an order for the cessation of, unfair commercial practices, or |
| --- | --- |

—

to order the cessation of, or to institute appropriate legal proceedings for an order for the cessation of, unfair commercial practices, or

| — | if the unfair commercial practice has not yet been carried out but is imminent, to order the prohibition of the practice, or to institute appropriate legal proceedings for an order for the prohibition of the practice, |
| --- | --- |

—

if the unfair commercial practice has not yet been carried out but is imminent, to order the prohibition of the practice, or to institute appropriate legal proceedings for an order for the prohibition of the practice,

even without proof of actual loss or damage or of intention or negligence on the part of the trader.

Member States shall also make provision for the measures referred to in the first subparagraph to be taken under an accelerated procedure:

| — | either with interim effect, or |
| --- | --- |

—

either with interim effect, or

| — | with definitive effect, |
| --- | --- |

—

with definitive effect,

on the understanding that it is for each Member State to decide which of the two options to select.

Furthermore, Member States may confer upon the courts or administrative authorities powers enabling them, with a view to eliminating the continuing effects of unfair commercial practices the cessation of which has been ordered by a final decision:

| — | to require publication of that decision in full or in part and in such form as they deem adequate, |
| --- | --- |

—

to require publication of that decision in full or in part and in such form as they deem adequate,

| — | to require in addition the publication of a corrective statement. |
| --- | --- |

—

to require in addition the publication of a corrective statement.

3.   The administrative authorities referred to in paragraph 1 must:

| (a) | be composed so as not to cast doubt on their impartiality; |
| --- | --- |

(a)

be composed so as not to cast doubt on their impartiality;

| (b) | have adequate powers, where they decide on complaints, to monitor and enforce the observance of their decisions effectively; |
| --- | --- |

(b)

have adequate powers, where they decide on complaints, to monitor and enforce the observance of their decisions effectively;

| (c) | normally give reasons for their decisions. |
| --- | --- |

(c)

normally give reasons for their decisions.

Where the powers referred to in paragraph 2 are exercised exclusively by an administrative authority, reasons for its decisions shall always be given. Furthermore, in this case, provision must be made for procedures whereby improper or unreasonable exercise of its powers by the administrative authority or improper or unreasonable failure to exercise the said powers can be the subject of judicial review.

Article 12

Courts and administrative authorities: substantiation of claims

Member States shall confer upon the courts or administrative authorities powers enabling them in the civil or administrative proceedings provided for in Article 11:

| (a) | to require the trader to furnish evidence as to the accuracy of factual claims in relation to a commercial practice if, taking into account the legitimate interest of the trader and any other party to the proceedings, such a requirement appears appropriate on the basis of the circumstances of the particular case; and |
| --- | --- |

(a)

to require the trader to furnish evidence as to the accuracy of factual claims in relation to a commercial practice if, taking into account the legitimate interest of the trader and any other party to the proceedings, such a requirement appears appropriate on the basis of the circumstances of the particular case; and

| (b) | to consider factual claims as inaccurate if the evidence demanded in accordance with (a) is not furnished or is deemed insufficient by the court or administrative authority. |
| --- | --- |

(b)

to consider factual claims as inaccurate if the evidence demanded in accordance with (a) is not furnished or is deemed insufficient by the court or administrative authority.

Article 13

Penalties

Member States shall lay down penalties for infringements of national provisions adopted in application of this Directive and shall take all necessary measures to ensure that these are enforced. These penalties must be effective, proportionate and dissuasive.

Article 14

Amendments to Directive 84/450/EEC

Directive 84/450/EEC is hereby amended as follows:

| (1) | Article 1 shall be replaced by the following:
  ‘Article 1
  The purpose of this Directive is to protect traders against misleading advertising and the unfair consequences thereof and to lay down the conditions under which comparative advertising is permitted’; |
| --- | --- |

(1)

Article 1 shall be replaced by the following:

‘Article 1

The purpose of this Directive is to protect traders against misleading advertising and the unfair consequences thereof and to lay down the conditions under which comparative advertising is permitted’;

| (2) | In Article 2:






  — | Point 3 shall be replaced by the following:







  ‘3. | “trader” means any natural or legal person who is acting for purposes relating to his trade, craft, business or profession and any one acting in the name of or on behalf of a trader.’ |
| --- | --- | --- | --- |

(2)

In Article 2:

—

Point 3 shall be replaced by the following:

‘3.

“trader” means any natural or legal person who is acting for purposes relating to his trade, craft, business or profession and any one acting in the name of or on behalf of a trader.’

| — | The following point shall be added:







  ‘4. | “code owner” means any entity, including a trader or group of traders, which is responsible for the formulation and revision of a code of conduct and/or for monitoring compliance with the code by those who have undertaken to be bound by it.’. |
| --- | --- | --- |

—

The following point shall be added:

‘4.

“code owner” means any entity, including a trader or group of traders, which is responsible for the formulation and revision of a code of conduct and/or for monitoring compliance with the code by those who have undertaken to be bound by it.’.

| (3) | Article 3a shall be replaced by the following:
  ‘Article 3a
  1.   Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met:






  (a) | it is not misleading according to Articles 2(2), 3 and 7(1)of this Directive or Articles 6 and 7 of Directive 2005/.../EC (9) of the European Parliament and of the Council of...... concerning unfair business-to-consumer commercial practices in the internal market (10); |
| --- | --- | --- |

(3)

Article 3a shall be replaced by the following:

‘Article 3a

1.   Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met:

(a)

it is not misleading according to Articles 2(2), 3 and 7(1)of this Directive or Articles 6 and 7 of Directive 2005/.../EC (9) of the European Parliament and of the Council of...... concerning unfair business-to-consumer commercial practices in the internal market (10);

9

10

| (b) | it compares goods or services meeting the same needs or intended for the same purpose; |
| --- | --- |

(b)

it compares goods or services meeting the same needs or intended for the same purpose;

| (c) | it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price; |
| --- | --- |

(c)

it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price;

| (d) | it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor; |
| --- | --- |

(d)

it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor;

| (e) | for products with designation of origin, it relates in each case to products with the same designation; |
| --- | --- |

(e)

for products with designation of origin, it relates in each case to products with the same designation;

| (f) | it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products; |
| --- | --- |

(f)

it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products;

| (g) | it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name; |
| --- | --- |

(g)

it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name;

| (h) | it does not create confusion among traders, between the advertiser and a competitor or between the advertiser's trade marks, trade names, other distinguishing marks, goods or services and those of a competitor. |
| --- | --- |

(h)

it does not create confusion among traders, between the advertiser and a competitor or between the advertiser's trade marks, trade names, other distinguishing marks, goods or services and those of a competitor.

| (4) | Article 4(1) shall be replaced by the following:
  ‘1.   Member States shall ensure that adequate and effective means exist to combat misleading advertising and for compliance with the provisions on comparative advertising in the interest of traders and competitors. Such means shall include legal provisions under which persons or organisations regarded under national law as having a legitimate interest in combating misleading advertising or regulating comparative advertising may:






  (a) | take legal action against such advertising; or |
| --- | --- | --- |

(4)

Article 4(1) shall be replaced by the following:

‘1.   Member States shall ensure that adequate and effective means exist to combat misleading advertising and for compliance with the provisions on comparative advertising in the interest of traders and competitors. Such means shall include legal provisions under which persons or organisations regarded under national law as having a legitimate interest in combating misleading advertising or regulating comparative advertising may:

(a)

take legal action against such advertising; or

| (b) | bring such advertising before an administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings. |
| --- | --- |

(b)

bring such advertising before an administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings.

It shall be for each Member State to decide which of these facilities shall be available and whether to enable the courts or administrative authorities to require prior recourse to other established means of dealing with complaints, including those referred to in Article 5.

It shall be for each Member State to decide:

| (a) | whether these legal facilities may be directed separately or jointly against a number of traders from the same economic sector; and |
| --- | --- |

(a)

whether these legal facilities may be directed separately or jointly against a number of traders from the same economic sector; and

| (b) | whether these legal facilities may be directed against a code owner where the relevant code promotes non-compliance with legal requirements.’ |
| --- | --- |

(b)

whether these legal facilities may be directed against a code owner where the relevant code promotes non-compliance with legal requirements.’

| (5) | Article 7(1) shall be replaced by the following:
  ‘1.   This Directive shall not preclude Member States from retaining or adopting provisions with a view to ensuring more extensive protection, with regard to misleading advertising, for traders and competitors’. |
| --- | --- |

(5)

Article 7(1) shall be replaced by the following:

‘1.   This Directive shall not preclude Member States from retaining or adopting provisions with a view to ensuring more extensive protection, with regard to misleading advertising, for traders and competitors’.

Article 15

Amendments to Directives 97/7/EC and 2002/65/EC

(1)   Article 9 of Directive 97/7/EC shall be replaced by the following:

‘Article 9

Inertia selling

Given the prohibition of inertia selling practices laid down in Directive 2005/.../EC (11) of the European Parliament and of the Council of ...... concerning unfair business-to-consumer commercial practices in the internal market (12), Member States shall take the measures necessary to exempt the consumer from the provision of any consideration in cases of unsolicited supply, the absence of a response not constituting consent.

(2)   Article 9 of Directive 2002/65/EC shall be replaced by the following:

‘Article 9

Given the prohibition of inertia selling practices laid down in Directive 2005/.../EC (11) of the European Parliament and of the Council of ...... concerning unfair business-to-consumer commercial practices in the internal market (13) and without prejudice to the provisions of Member States' legislation on the tacit renewal of distance contracts, when such rules permit tacit renewal, Member States shall take measures to exempt the consumer from any obligation in the event of unsolicited supplies, the absence of a reply not constituting consent.

Article 16

Amendments to Directive 98/27/EC and Regulation (EC) No 2006/2004

(1)   In the Annex to Directive 98/27/EC, point 1 shall be replaced by the following:

| ‘1. | Directive 2005/.../EC (11) of the European Parliament and of the Council of ...... concerning unfair business-to-consumer commercial practices in the internal market (OJ L...)’. |
| --- | --- |

‘1.

Directive 2005/.../EC (11) of the European Parliament and of the Council of ...... concerning unfair business-to-consumer commercial practices in the internal market (OJ L...)’.

(2)   In the Annex to Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of the consumer protection laws (the Regulation on consumer protection cooperation) (14) the following point shall be added:

14

| ‘15. | Directive 2005/..../EC (15) of the European Parliament and of the Council of........... concerning unfair business-to-consumer commercial practices in the internal market (OJ L..., p. )’. |
| --- | --- |

‘15.

Directive 2005/..../EC (15) of the European Parliament and of the Council of........... concerning unfair business-to-consumer commercial practices in the internal market (OJ L..., p. )’.

Article 17

Information

Member States shall take appropriate measures to inform the consumer of the national law transposing this Directive and shall, where appropriate, encourage traders and code owners to inform consumers of their codes of conduct.

Article 18

Review

1.   The Commission shall not later than four years after...... (16) submit to the European Parliament and the Council a comprehensive report on the application of this Directive, in particular of Article 4 and Annex I, on the scope for further harmonisation and simplification of Community law relating to consumer protection, and, having regard to Article 3(5), on any measures that need to be taken at Community level to ensure that appropriate levels of consumer protection are maintained. The report shall be accompanied, if necessary, by a proposal to revise this Directive or other relevant parts of Community law.

16

2.   The European Parliament and the Council shall endeavour to act, in accordance with the Treaty, within two years of the presentation by the Commission of any proposal submitted under paragraph 1.

Article 19

Transposition

Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive by......... (16). They shall forthwith inform the Commission thereof and inform the Commission of any subsequent amendments without delay.

16

They shall apply those measures by.......... (17). When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

17

Article 20

Entry into force

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

Official Journal of the European Union.

Article 21

Addressees

This Directive is addressed to the Member States.

Done at Brussels,...

For the European Parliament

The President

...

For the Council

The President

...

---

(1)  OJ C 108, 30.4.2004, p. 81.

1

(2)  Opinion of the European Parliament of 20 April 2004 (OJ C 104 E, 30.4.2004), Council Common Position of 15 November 2004 and position of the European Parliament of (not yet published in the Official Journal).

2

(3)  OJ L 250, 19.9.1984, p. 17. Directive as amended by Directive 97/55/EC of the European Parliament and of the Council (OJ L 290, 23.10.1997, p. 18).

3

(4)  OJ L 144, 4.6.1997, p. 19. Directive as amended by Directive 2002/65/EC (OJ L 271, 9.10.2002, p. 16.).

4

(5)  OJ L 166, 11.6.1998, p. 51. Directive as last amended by Directive 2002/65/EC.

5

(6)  OJ L 271, 9.10.2002, p. 16.

6

(7)  OJ L 201, 31.7.2002, p. 37.

7

(8)  24 months after the entry into force of this Directive.

8

(9)  This Directive.

9

(10)  OJ L ... ’

10

(11)  This Directive.

11

(12)  OJ L ... ’

12

(13)  OJ L ... ’

13

(14)  OJ L 364, 9.12.2004, p. 1.

14

(15)  This Directive.

15

(16)  24 months after the entry into force of this Directive.

16

(17)  30 months after the entry into force of this Directive.

17

---

ANNEX I

COMMERCIAL PRACTICES WHICH ARE IN ALL CIRCUMSTANCES CONSIDERED UNFAIR

Misleading commercial practices

| (1) | Claiming to be a signatory to a code of conduct when the trader is not. |
| --- | --- |

(1)

Claiming to be a signatory to a code of conduct when the trader is not.

| (2) | Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation. |
| --- | --- |

(2)

Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.

| (3) | Claiming that a code of conduct has an endorsement from a public or other body which it does not have. |
| --- | --- |

(3)

Claiming that a code of conduct has an endorsement from a public or other body which it does not have.

| (4) | Claiming that a product has been approved, endorsed or authorised by a public or private body when it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation. |
| --- | --- |

(4)

Claiming that a product has been approved, endorsed or authorised by a public or private body when it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation.

| (5) | Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising). |
| --- | --- |

(5)

Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).

| (6) | Making an invitation to purchase products at a specified price and then:






  (a) | refusing to show the advertised item to consumers, or |
| --- | --- | --- |

(6)

Making an invitation to purchase products at a specified price and then:

(a)

refusing to show the advertised item to consumers, or

| (b) | refusing to take orders for it or deliver it within a reasonable time, or |
| --- | --- |

(b)

refusing to take orders for it or deliver it within a reasonable time, or

| (c) | demonstrating a defective sample of it, |
| --- | --- |

(c)

demonstrating a defective sample of it,

with the intention of promoting a different product (bait and switch).

| (7) | Falsely stating that the product will only be available for a very limited time in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice. |
| --- | --- |

(7)

Falsely stating that the product will only be available for a very limited time in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice.

| (8) | Undertaking to provide after-sales service to consumers with whom the trader has communicated prior to a transaction in a language which is not an official language of the Member State where the trader is located and then making such service available only in another language without clearly disclosing this to the consumer before the consumer is committed to the transaction. |
| --- | --- |

(8)

Undertaking to provide after-sales service to consumers with whom the trader has communicated prior to a transaction in a language which is not an official language of the Member State where the trader is located and then making such service available only in another language without clearly disclosing this to the consumer before the consumer is committed to the transaction.

| (9) | Stating or otherwise creating the impression that a product can legally be sold when it cannot. |
| --- | --- |

(9)

Stating or otherwise creating the impression that a product can legally be sold when it cannot.

| (10) | Presenting rights given to consumers in law as a distinctive feature of the trader's offer. |
| --- | --- |

(10)

Presenting rights given to consumers in law as a distinctive feature of the trader's offer.

| (11) | Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1). |
| --- | --- |

(11)

Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1).

| (12) | Making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product. |
| --- | --- |

(12)

Making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product.

| (13) | Establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products. |
| --- | --- |

(13)

Establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products.

| (14) | Claiming that the trader is about to cease trading or move premises when he is not. |
| --- | --- |

(14)

Claiming that the trader is about to cease trading or move premises when he is not.

| (15) | Claiming that products are able to facilitate winning in games of chance. |
| --- | --- |

(15)

Claiming that products are able to facilitate winning in games of chance.

| (16) | Falsely claiming that a product is able to cure illnesses, dysfunction or malformations. |
| --- | --- |

(16)

Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.

| (17) | Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions. |
| --- | --- |

(17)

Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions.

| (18) | Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent. |
| --- | --- |

(18)

Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.

| (19) | Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item. |
| --- | --- |

(19)

Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.

| (20) | Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not. |
| --- | --- |

(20)

Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.

Aggressive commercial practices

| (21) | Creating the impression that the consumer cannot leave the premises until a contract is formed. |
| --- | --- |

(21)

Creating the impression that the consumer cannot leave the premises until a contract is formed.

| (22) | Conducting personal visits to the consumer's home ignoring the consumer's request to leave or not to return except in circumstances and to the extent justified, under national law, to enforce a contractual obligation. |
| --- | --- |

(22)

Conducting personal visits to the consumer's home ignoring the consumer's request to leave or not to return except in circumstances and to the extent justified, under national law, to enforce a contractual obligation.

| (23) | Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (2) and 2002/58/EC. |
| --- | --- |

(23)

Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (2) and 2002/58/EC.

| (24) | Requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reasonably be considered relevant as to whether the claim was valid, in order to dissuade the consumer from exercising his contractual rights. |
| --- | --- |

(24)

Requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reasonably be considered relevant as to whether the claim was valid, in order to dissuade the consumer from exercising his contractual rights.

| (25) | Including in an advertisement a direct appeal to children to persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC. |
| --- | --- |

(25)

Including in an advertisement a direct appeal to children to persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC.

| (26) | Demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but not solicited by the consumer except where the product is a substitute supplied in conformity with Article 7(3) of Directive 97/7/EC (inertia selling). |
| --- | --- |

(26)

Demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but not solicited by the consumer except where the product is a substitute supplied in conformity with Article 7(3) of Directive 97/7/EC (inertia selling).

| (27) | Explicitly informing the consumer that if he does not buy the product or service, the trader's job or livelihood will be in jeopardy. |
| --- | --- |

(27)

Explicitly informing the consumer that if he does not buy the product or service, the trader's job or livelihood will be in jeopardy.

| (28) | Creating the impression that the consumer has already won a prize without needing to make a purchase when in fact the opportunity to win the prize or the award of the prize are dependent on the consumer buying a product. |
| --- | --- |

(28)

Creating the impression that the consumer has already won a prize without needing to make a purchase when in fact the opportunity to win the prize or the award of the prize are dependent on the consumer buying a product.

---

(1)  Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ L 298, 17.10.1989, p. 23). Directive as amended by Directive 97/36/EC of the European Parliament and of the Council (OJ L 202, 30.7.1997, p. 60).

(2)  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 (OJ L 281, 23.11.1995, p. 31). Directive as amended by Regulation (EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

---

ANNEX II

COMMUNITY LAW PROVISIONS SETTING OUT RULES FOR ADVERTISING AND COMMERCIAL COMMUNICATION

Articles 4 and 5 of Directive 97/7/EC

Article 3 of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (1)

Article 3(3) of Directive 94/47/EC of the European Parliament and of the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of a right to use immovable properties on a timeshare basis (2)

Article 3(4) of Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers (3)

Articles 86 to 100 of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (4)

Articles 5 and 6 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) (5)

Article 1(d) of Directive 98/7/EC of the European Parliament and of the Council of 16 February 1998 amending Directive 87/102/EEC for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit (6)

Articles 3 and 4 of Directive 2002/65/EC

Article 1(9) of Directive 2001/107/EC of the European Parliament and of the Council of 21 January 2002 amending Council Directive 85/611/EEC on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) with a view to regulating management companies and simplified prospectuses (7)

Articles 12 and 13 of Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on insurance mediation (8)

Article 36 of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance (9)

Article 19 of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments (10)

Articles 31 and 43 of Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance (11) (third non-life insurance Directive)

Articles 5, 7 and 8 of Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading (12).

---

(1)  OJ L 158, 23.6.1990, p. 59.

(2)  OJ L 280, 29.10.1994, p. 83.

(3)  OJ L 80, 18.3.1998, p. 27.

(4)  OJ L 311, 28.11.2001, p. 67. Directive as last amended by Directive 2004/27/EC (OJ L 136, 30.4.2004, p. 34.)

(5)  OJ L 178, 17.7.2000, p. 1.

(6)  OJ L 101, 1.4.1998, p. 17.

(7)  OJ L 41, 13.2.2002, p. 20.

(8)  OJ L 9, 15.1.2003, p. 3.

(9)  OJ L 345, 19.12.2002, p. 1. Directive as amended by Council Directive 2004/66/EC (OJ L 168, 1.5.2004, p. 35).

(10)  OJ L 145, 30.4.2004, p. 1.

(11)  OJ L 228, 11.8.1992, p. 1. Directive as last amended by Directive 2002/87/EC (OJ L 35, 11.2.2003, p. 1).

(12)  OJ L 345, 31.12.2003, p. 64.

---

STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

| 1. | On 24 June 2003, the Commission submitted to the Council a proposal for a Directive of the European Parliament and of the Council, based on Article 95 of the Treaty, concerning unfair business-to-consumer practices in the Internal Market and amending Directives 84/450/EEC, 97/7/EC and 98/27/EC (the Unfair Commercial Practices Directive). |
| --- | --- |

1.

On 24 June 2003, the Commission submitted to the Council a proposal for a Directive of the European Parliament and of the Council, based on Article 95 of the Treaty, concerning unfair business-to-consumer practices in the Internal Market and amending Directives 84/450/EEC, 97/7/EC and 98/27/EC (the Unfair Commercial Practices Directive).

| 2. | The European Parliament gave its opinion (1) in first reading on 20 April 2004.
  The Economic and Social Committee gave its opinion (2) on 29 January 2004. |
| --- | --- |

2.

The European Parliament gave its opinion (1) in first reading on 20 April 2004.

The Economic and Social Committee gave its opinion (2) on 29 January 2004.

| 3. | On 15 November 2004, the Council adopted its common position in accordance with Article 251 of the Treaty. |
| --- | --- |

3.

On 15 November 2004, the Council adopted its common position in accordance with Article 251 of the Treaty.

II.   OBJECTIVE

The purpose of the Directive is to harmonise the Member States' regulation on unfair business to consumer commercial practices which harm consumers' economic interests with a view to contributing to the proper functioning of the internal market and to achieving a high level of consumer protection.

The text:

| — | defines the conditions which determine whether a commercial practice is unfair; |
| --- | --- |

—

defines the conditions which determine whether a commercial practice is unfair;

| — | contains a general prohibition of such unfair practices, elaborating on two key types of unfair practices (which are either misleading or aggressive). |
| --- | --- |

—

contains a general prohibition of such unfair practices, elaborating on two key types of unfair practices (which are either misleading or aggressive).

III.   ANALYSIS OF THE COMMON POSITION

1.   General remarks

In general, the Council has followed the European Parliament's first reading opinion and the Commission's position on such opinion. It has integrated in its common position 51 out of the 58 Amendments accepted by the Commission, either in whole or partly. It has also endorsed 4 Amendments (43, 64, 91 and 110) which the Commission had initially indicated it was unable to accept.

The common position represents a balance of concerns and interests with the main results of:

| — | maintaining the general prohibition of unfair commercial practices (Article 5), with Annex I containing the list of those commercial practices which shall in all circumstances be regarded as unfair; |
| --- | --- |

—

maintaining the general prohibition of unfair commercial practices (Article 5), with Annex I containing the list of those commercial practices which shall in all circumstances be regarded as unfair;

| — | retaining the proposed average consumer benchmark but with the inclusion of explicit provisions for the protection of the vulnerable consumer (notably in Article 5, paragraph 3); |
| --- | --- |

—

retaining the proposed average consumer benchmark but with the inclusion of explicit provisions for the protection of the vulnerable consumer (notably in Article 5, paragraph 3);

| — | deleting the country of origin clause originally proposed by the Commission; |
| --- | --- |

—

deleting the country of origin clause originally proposed by the Commission;

| — | maintaining the clause of free circulation of services or goods whereby free circulation cannot be restricted for reasons falling within the field approximated by this Directive (Article 4); |
| --- | --- |

—

maintaining the clause of free circulation of services or goods whereby free circulation cannot be restricted for reasons falling within the field approximated by this Directive (Article 4);

| — | temporarily allowing Member States to apply national provisions within the field approximated by this Directive which are more restrictive or prescriptive than this Directive and which implement directives containing minimum harmonisation clauses (Article 3, paragraphs 5 and 6); |
| --- | --- |

—

temporarily allowing Member States to apply national provisions within the field approximated by this Directive which are more restrictive or prescriptive than this Directive and which implement directives containing minimum harmonisation clauses (Article 3, paragraphs 5 and 6);

| — | clarifying the scope of the Directive notably in relation to certain professions, products or activities (Article 3, paragraphs 8, 9 and 10); and |
| --- | --- |

—

clarifying the scope of the Directive notably in relation to certain professions, products or activities (Article 3, paragraphs 8, 9 and 10); and

| — | inserting a review clause (Article 18). |
| --- | --- |

—

inserting a review clause (Article 18).

The Commission has accepted the common position agreed by the Council.

2.   European Parliament Amendments

In its Plenary vote on 20 April 2004, the European Parliament adopted 94 Amendments to the proposal.

The Council:

| (a) | introduced in the common position 7 Amendments without modification as follows:
  Recitals:

  Amendment 1 (on Recital 6 — objective/scope);

  Amendment 5 (on Recital 10 — objective/scope);

  Amendment 10 (on recital 14 — codes of conduct);
  Articles:

  Amendment 19 (on Article 2, point (h) — definition of ‘Community level code’);

  Amendment 23 (on Article 2, point (l) — definition of ‘undue influence’);
  Annexes:

  Amendment 71 (on Annex 1, ‘Misleading commercial practices’, point (5)).

  Amendment 91 (on Annex 1, ‘Aggressive commercial practices’, point (7)). |
| --- | --- |

(a)

introduced in the common position 7 Amendments without modification as follows:

Recitals:

Amendment 1 (on Recital 6 — objective/scope);

Amendment 5 (on Recital 10 — objective/scope);

Amendment 10 (on recital 14 — codes of conduct);

Articles:

Amendment 19 (on Article 2, point (h) — definition of ‘Community level code’);

Amendment 23 (on Article 2, point (l) — definition of ‘undue influence’);

Annexes:

Amendment 71 (on Annex 1, ‘Misleading commercial practices’, point (5)).

Amendment 91 (on Annex 1, ‘Aggressive commercial practices’, point (7)).

| (b) | introduced in the common position 48 Amendments in part and/or with drafting or other modifications as follows:
  Recitals:

  Amendment 112 (on Citation 1 adding Article 153 of the Treaty to the legal base): a new Recital 1 which refers to Article 153 has been inserted;

  Amendment 105 (on Recital 5 — objective/scope): Amendment incorporated through the new wording of Recital 6 which clarifies the relationship with national rules on areas outside the scope of the Directive;

  Amendment 6 (on Recital 11 — ‘look alike products’ and ‘passing off’): the purpose of the Amendment has been taken over in the new wording of Recital 14;

  Amendment 7 (on Recital 11a (new) — status of Annex I on ‘Misleading commercial practices’): the effect sought by the Amendment has been taken over in the new wording of Recital 17;

  Amendment 8 (on Recital 13 — vulnerable consumers): the preoccupation of the Amendment has been taken into consideration in the new wording of Recital 19 which clarifies the concept of vulnerable consumer;

  Amendment 106 (on Recital 13a (new) — vulnerable consumers): the preoccupation of the Amendment has been taken into consideration in the new wording of Recital 19 (see also above on Amendment 8);

  Amendment 9 (on Recital 14 — codes of conduct): the purpose of the Amendment has been taken over in the new wording of Recital 20 with some redrafting, taking account of the existing legislation;
  Articles:

  Amendment 107 (on Article 2, point (b) — definition of ‘average consumer’): the preoccupation of the Amendment has been taken into consideration in the new wording of Recital 18;

  Amendment 13 (on Article 2, point (ba) (new) — definition of ‘particular group of customers’): the preoccupation of the Amendment has been taken into consideration in the new wording of Article 5, paragraph 3 (see also above on Amendment 8);

  Amendment 14 (on Article 2, point (c) — definition of ‘seller or supplier’): the purpose of the Amendment has been taken over in the new wording of point (b), taking into account that the present Directive does not regulate liability;

  Amendment 17 (on Article 2, point (g) — definition of ‘code of conduct’): the preoccupation of the Amendment has been taken into consideration in the new wording of point (f);

  Amendment 104 (on Article 2, point (g) — definition of ‘code of conduct’): the purpose of the Amendment has been taken over in the new wording of Recital 20;

  Amendments 21 and 108 (on Article 2, point (j) — definition of ‘professional diligence’): the concepts contained in those Amendments have been incorporated in the new wording of point (h);

  Amendment 24 (on Article 2, point (la) (new) — definition of ‘firm commitment’): the purpose of the Amendment has been taken over in the new wording of Article 6, paragraph 2, point (b);

  Amendment 25 (on Article 3, paragraph 1 — scope): the first part of the Amendment has been taken over in this paragraph whilst the second part is already captured in Article 2, point (k);

  Amendment 27 (on Article 3, paragraph 6a (new) — scope): the purpose of the Amendment has been taken over in Article 3, paragraphs 8, 9 and 10;

  Amendment 28 (on Article 4, paragraph 2a (new) — scope): the preoccupation of the Amendment has been taken into consideration in the new wording of Recital 9;

  Amendment 109 (on Article 4, paragraphs 2b and 2c (new) — temporary derogation): the effect sought by the Amendment has been taken over in Article 3, paragraphs 5 and 6, with some redrafting;

  Amendment 29 (on Article 5, paragraph 2, indent 1 — good faith): the purpose of the Amendment has been taken over in the new wording of Article 2, point (h) (see also Amendment 108);

  Amendment 110 (on Article 5, paragraph 2, indent 2 — vulnerable consumer): the preoccupation of the Amendment has been taken into consideration in the new wording of Article 5, paragraph 3 (see also above on Amendment 8);

  Amendment 33 (on Article 5, paragraph 4 — status of Annex I): the purpose of the Amendment has been taken over in the new wording of the paragraph as well as in Recital 17;

  Amendment 34 (on Article 6, paragraph 1, introductory part — concept of ‘misleading commercial practice’): the purpose of the Amendment has been taken over in Article 2, point (k);

  Amendment 37 (on Article 6, paragraph 1, point (f) — concept of ‘misleading commercial practice’): the concern motivating the Amendment has been addressed by the deletion of this point;

  Amendment 39 (on Article 6, paragraph 2, introductory sentence — concept of ‘misleading commercial practice’): the purpose of the Amendment has been taken over in Article 2, point (k);

  Amendment 40 (on Article 6, paragraph 2, point (b), indent 3 (new) — concept of ‘misleading commercial practice’): the purpose of the Amendment has been taken over in the new wording of Article 6, paragraph 2, point (b), indent 2;

  Amendments 43, 44 and 45 (on Article 7, paragraph 1 — concept of ‘misleading omissions’): the preoccupation of the Amendments has been taken over in the new wording of Article 7, paragraphs 1 and 3;

  Amendment 47 (on Article 7, paragraph 2 — concept of ‘misleading omissions’): the second part of the Amendment has been taken over in the new wording of the paragraph whereas the first part is covered by Article 7, paragraphs 1 and 3;

  Amendments 111 and 59 (on Article 9, point (c) — exploitation of specific misfortunes or circumstances): the effect sought by the Amendment has been taken over in the new wording of the point;

  Amendment 103 (on Article 10 — enforcement of codes of conduct): the purpose of the Amendment has been taken over in the new wording of the Article;

  Amendment 61 (on Article 10, paragraph 1 (new) — content and drafting of codes of conduct): the purpose of the Amendment has been taken over in the new wording of Recital 20 (see also Amendment 9);

  Amendments 64 and 65 (on Article 11, paragraph 1, subparagraph 4 — non liability of a code owner): the concern underlying the Amendments has been addressed by the new wording of Article 11, paragraph 1, subparagraph 4, indent 2;

  Amendment 67 (on Article 14, paragraph 5 — non liability of a code owner): the purpose of the Amendment has been taken over in the new wording of Article 14, paragraph 4, subparagraph 2, point (b) (see Amendments 64 and 65);

  Amendment 68 (on Article 17 — transposition of the future directive): the effect sought by the Amendment has been taken over in the new wording of the point;

  Amendment 69 (on Article 17a (new) revision): the purpose of the Amendment has been taken over in Article 18, with modifications in the wording;
  Annexes:

  Amendment 99 (on Annex 1, ‘Misleading commercial practices’, point (3)): the effect sought by the Amendment has been taken over in the wording of point (5);

  Amendment 73 (on Annex 1, ‘Misleading commercial practices’, point (9)): the purpose of the Amendment has been taken over in the wording of point (12);

  Amendment 76 (on Annex 1, ‘Misleading commercial practices’, point (12): the purpose of the Amendment has been taken over in the wording of new point (14);

  Amendment 84 (on Annex 1, ‘Misleading commercial practices’, point (12h) (new)): the purpose of the Amendment has been taken over in the wording of new point (18), with some modifications in order to clarify its application;

  Amendment 85 (on Annex 1, ‘Aggressive commercial practices’, point (2)): the purpose of the Amendment has been taken over in the wording of new point (22), with some modifications in order to clarify its application;

  Amendment 87 (on Annex 1, ‘Aggressive commercial practices’, point (3), subparagraph 1a (new)): the purpose of the Amendment has been taken over in the wording of new point (23), with a view to clarify its application;

  Amendment 88 (on Annex 1, ‘Aggressive commercial practices’, point (4)): the purpose of the Amendment has been addressed by the deletion of this point;

  Amendment 90 (on Annex 1, ‘Aggressive commercial practices’, point (6)): the purpose of the Amendment has been taken over in the wording of new point (25), with some modifications in order to clarify its application;

  Amendment 92 (on Annex 1, ‘Aggressive commercial practices’, point (7)): the purpose of the Amendment has been taken over in the wording of new point (26), with some modifications in order to clarify its application; |
| --- | --- |

(b)

introduced in the common position 48 Amendments in part and/or with drafting or other modifications as follows:

Recitals:

Amendment 112 (on Citation 1 adding Article 153 of the Treaty to the legal base): a new Recital 1 which refers to Article 153 has been inserted;

Amendment 105 (on Recital 5 — objective/scope): Amendment incorporated through the new wording of Recital 6 which clarifies the relationship with national rules on areas outside the scope of the Directive;

Amendment 6 (on Recital 11 — ‘look alike products’ and ‘passing off’): the purpose of the Amendment has been taken over in the new wording of Recital 14;

Amendment 7 (on Recital 11a (new) — status of Annex I on ‘Misleading commercial practices’): the effect sought by the Amendment has been taken over in the new wording of Recital 17;

Amendment 8 (on Recital 13 — vulnerable consumers): the preoccupation of the Amendment has been taken into consideration in the new wording of Recital 19 which clarifies the concept of vulnerable consumer;

Amendment 106 (on Recital 13a (new) — vulnerable consumers): the preoccupation of the Amendment has been taken into consideration in the new wording of Recital 19 (see also above on Amendment 8);

Amendment 9 (on Recital 14 — codes of conduct): the purpose of the Amendment has been taken over in the new wording of Recital 20 with some redrafting, taking account of the existing legislation;

Articles:

Amendment 107 (on Article 2, point (b) — definition of ‘average consumer’): the preoccupation of the Amendment has been taken into consideration in the new wording of Recital 18;

Amendment 13 (on Article 2, point (ba) (new) — definition of ‘particular group of customers’): the preoccupation of the Amendment has been taken into consideration in the new wording of Article 5, paragraph 3 (see also above on Amendment 8);

Amendment 14 (on Article 2, point (c) — definition of ‘seller or supplier’): the purpose of the Amendment has been taken over in the new wording of point (b), taking into account that the present Directive does not regulate liability;

Amendment 17 (on Article 2, point (g) — definition of ‘code of conduct’): the preoccupation of the Amendment has been taken into consideration in the new wording of point (f);

Amendment 104 (on Article 2, point (g) — definition of ‘code of conduct’): the purpose of the Amendment has been taken over in the new wording of Recital 20;

Amendments 21 and 108 (on Article 2, point (j) — definition of ‘professional diligence’): the concepts contained in those Amendments have been incorporated in the new wording of point (h);

Amendment 24 (on Article 2, point (la) (new) — definition of ‘firm commitment’): the purpose of the Amendment has been taken over in the new wording of Article 6, paragraph 2, point (b);

Amendment 25 (on Article 3, paragraph 1 — scope): the first part of the Amendment has been taken over in this paragraph whilst the second part is already captured in Article 2, point (k);

Amendment 27 (on Article 3, paragraph 6a (new) — scope): the purpose of the Amendment has been taken over in Article 3, paragraphs 8, 9 and 10;

Amendment 28 (on Article 4, paragraph 2a (new) — scope): the preoccupation of the Amendment has been taken into consideration in the new wording of Recital 9;

Amendment 109 (on Article 4, paragraphs 2b and 2c (new) — temporary derogation): the effect sought by the Amendment has been taken over in Article 3, paragraphs 5 and 6, with some redrafting;

Amendment 29 (on Article 5, paragraph 2, indent 1 — good faith): the purpose of the Amendment has been taken over in the new wording of Article 2, point (h) (see also Amendment 108);

Amendment 110 (on Article 5, paragraph 2, indent 2 — vulnerable consumer): the preoccupation of the Amendment has been taken into consideration in the new wording of Article 5, paragraph 3 (see also above on Amendment 8);

Amendment 33 (on Article 5, paragraph 4 — status of Annex I): the purpose of the Amendment has been taken over in the new wording of the paragraph as well as in Recital 17;

Amendment 34 (on Article 6, paragraph 1, introductory part — concept of ‘misleading commercial practice’): the purpose of the Amendment has been taken over in Article 2, point (k);

Amendment 37 (on Article 6, paragraph 1, point (f) — concept of ‘misleading commercial practice’): the concern motivating the Amendment has been addressed by the deletion of this point;

Amendment 39 (on Article 6, paragraph 2, introductory sentence — concept of ‘misleading commercial practice’): the purpose of the Amendment has been taken over in Article 2, point (k);

Amendment 40 (on Article 6, paragraph 2, point (b), indent 3 (new) — concept of ‘misleading commercial practice’): the purpose of the Amendment has been taken over in the new wording of Article 6, paragraph 2, point (b), indent 2;

Amendments 43, 44 and 45 (on Article 7, paragraph 1 — concept of ‘misleading omissions’): the preoccupation of the Amendments has been taken over in the new wording of Article 7, paragraphs 1 and 3;

Amendment 47 (on Article 7, paragraph 2 — concept of ‘misleading omissions’): the second part of the Amendment has been taken over in the new wording of the paragraph whereas the first part is covered by Article 7, paragraphs 1 and 3;

Amendments 111 and 59 (on Article 9, point (c) — exploitation of specific misfortunes or circumstances): the effect sought by the Amendment has been taken over in the new wording of the point;

Amendment 103 (on Article 10 — enforcement of codes of conduct): the purpose of the Amendment has been taken over in the new wording of the Article;

Amendment 61 (on Article 10, paragraph 1 (new) — content and drafting of codes of conduct): the purpose of the Amendment has been taken over in the new wording of Recital 20 (see also Amendment 9);

Amendments 64 and 65 (on Article 11, paragraph 1, subparagraph 4 — non liability of a code owner): the concern underlying the Amendments has been addressed by the new wording of Article 11, paragraph 1, subparagraph 4, indent 2;

Amendment 67 (on Article 14, paragraph 5 — non liability of a code owner): the purpose of the Amendment has been taken over in the new wording of Article 14, paragraph 4, subparagraph 2, point (b) (see Amendments 64 and 65);

Amendment 68 (on Article 17 — transposition of the future directive): the effect sought by the Amendment has been taken over in the new wording of the point;

Amendment 69 (on Article 17a (new) revision): the purpose of the Amendment has been taken over in Article 18, with modifications in the wording;

Annexes:

Amendment 99 (on Annex 1, ‘Misleading commercial practices’, point (3)): the effect sought by the Amendment has been taken over in the wording of point (5);

Amendment 73 (on Annex 1, ‘Misleading commercial practices’, point (9)): the purpose of the Amendment has been taken over in the wording of point (12);

Amendment 76 (on Annex 1, ‘Misleading commercial practices’, point (12): the purpose of the Amendment has been taken over in the wording of new point (14);

Amendment 84 (on Annex 1, ‘Misleading commercial practices’, point (12h) (new)): the purpose of the Amendment has been taken over in the wording of new point (18), with some modifications in order to clarify its application;

Amendment 85 (on Annex 1, ‘Aggressive commercial practices’, point (2)): the purpose of the Amendment has been taken over in the wording of new point (22), with some modifications in order to clarify its application;

Amendment 87 (on Annex 1, ‘Aggressive commercial practices’, point (3), subparagraph 1a (new)): the purpose of the Amendment has been taken over in the wording of new point (23), with a view to clarify its application;

Amendment 88 (on Annex 1, ‘Aggressive commercial practices’, point (4)): the purpose of the Amendment has been addressed by the deletion of this point;

Amendment 90 (on Annex 1, ‘Aggressive commercial practices’, point (6)): the purpose of the Amendment has been taken over in the wording of new point (25), with some modifications in order to clarify its application;

Amendment 92 (on Annex 1, ‘Aggressive commercial practices’, point (7)): the purpose of the Amendment has been taken over in the wording of new point (26), with some modifications in order to clarify its application;

| (c) | did not include 39 Amendments (2, 3, 4, 15, 18, 20, 22, 26, 32, 36, 46, 48, 49, 50, 51, 52, 53, 54, 55, 57, 60, 62, 63, 66, 70, 97, 72, 74, 75, 77, 78, 79, 80, 81, 82, 83, 86, 89 and 94) in the common position.
  With respect to Amendments 3, 15, 18, 20, 22, 26, 32, 36, 46, 48, 49, 50, 51, 52, 53, 54, 55, 57, 63, 66, 70, 97, 74, 75, 77, 78, 79, 81, 82, 83, 86 and 94, the Council followed the position expressed by the Commission.
  In relation to Amendments 2, 4, 60, 62, 72, 80 and 89, accepted in full or in part by the Commission but not included in the common position:
  Recitals:

  Amendment 2 (on Recital 8 — objective/scope of the future directive): the drafting of the Amendment would reduce certainty about the harmonising effect of the Directive whilst the new wording of Recital 11 makes clear that the scope of the text is limited;

  Amendment 4 (on Recital 10 — objective/scope): the drafting of the Amendment would reduce certainty that, within the field approximated by the Directive, the Member States will not be able to keep any general prohibitions which do not conform to that in the Directive;
  Articles:

  Amendment 60 (on Article 9, point (e) — good faith): the issue of the burden of proof should be left outside the scope of the text as indicated in Recital 21 and the Amendment could not be accepted;

  Amendment 62 (on Article 10, paragraph 1a (new) — optional procedures): the Directive does not regulate the nature of the procedures which could be used under Article 10 so the possibilities referred to in the Amendment are already available;
  Annexes:

  Amendment 72 (on Annex 1, ‘Misleading commercial practices’, point (8)): the Amendment could not be accepted as it does not define a practice which is in all circumstances unfair, which is the criterion for inclusion in the Annex;

  Amendment 80 (on Annex 1, ‘Misleading commercial practices’, point (12d) (new)): the practice identified in the Amendment is difficult to distinguish in practice from a legitimate practice;

  Amendment 89 (on Annex 1, ‘Aggressive commercial practices’, point (5)): the effect sought by the Amendment is unclear but the drafting could notably capture non-consumers (which are outside the scope of the Directive). |
| --- | --- |

(c)

did not include 39 Amendments (2, 3, 4, 15, 18, 20, 22, 26, 32, 36, 46, 48, 49, 50, 51, 52, 53, 54, 55, 57, 60, 62, 63, 66, 70, 97, 72, 74, 75, 77, 78, 79, 80, 81, 82, 83, 86, 89 and 94) in the common position.

With respect to Amendments 3, 15, 18, 20, 22, 26, 32, 36, 46, 48, 49, 50, 51, 52, 53, 54, 55, 57, 63, 66, 70, 97, 74, 75, 77, 78, 79, 81, 82, 83, 86 and 94, the Council followed the position expressed by the Commission.

In relation to Amendments 2, 4, 60, 62, 72, 80 and 89, accepted in full or in part by the Commission but not included in the common position:

Recitals:

Amendment 2 (on Recital 8 — objective/scope of the future directive): the drafting of the Amendment would reduce certainty about the harmonising effect of the Directive whilst the new wording of Recital 11 makes clear that the scope of the text is limited;

Amendment 4 (on Recital 10 — objective/scope): the drafting of the Amendment would reduce certainty that, within the field approximated by the Directive, the Member States will not be able to keep any general prohibitions which do not conform to that in the Directive;

Articles:

Amendment 60 (on Article 9, point (e) — good faith): the issue of the burden of proof should be left outside the scope of the text as indicated in Recital 21 and the Amendment could not be accepted;

Amendment 62 (on Article 10, paragraph 1a (new) — optional procedures): the Directive does not regulate the nature of the procedures which could be used under Article 10 so the possibilities referred to in the Amendment are already available;

Annexes:

Amendment 72 (on Annex 1, ‘Misleading commercial practices’, point (8)): the Amendment could not be accepted as it does not define a practice which is in all circumstances unfair, which is the criterion for inclusion in the Annex;

Amendment 80 (on Annex 1, ‘Misleading commercial practices’, point (12d) (new)): the practice identified in the Amendment is difficult to distinguish in practice from a legitimate practice;

Amendment 89 (on Annex 1, ‘Aggressive commercial practices’, point (5)): the effect sought by the Amendment is unclear but the drafting could notably capture non-consumers (which are outside the scope of the Directive).

3.   Other innovations introduced by the Council

The other innovations introduced in the common position are:

| — | the adjustment of several definitions (the definitions in Article 2 of ‘invitation to purchase’ and ‘undue influence’ are modified, a new definition of ‘transactional decision’ is inserted and the definitions of ‘average consumer’ and of ‘Community level code’ are deleted); |
| --- | --- |

—

the adjustment of several definitions (the definitions in Article 2 of ‘invitation to purchase’ and ‘undue influence’ are modified, a new definition of ‘transactional decision’ is inserted and the definitions of ‘average consumer’ and of ‘Community level code’ are deleted);

| — | adjustments to the criteria for misleading actions (Article 6); |
| --- | --- |

—

adjustments to the criteria for misleading actions (Article 6);

| — | the clarification of the status and content of the Annexes (several points of the Annexes are modified, new Recitals 15 and 17 on the status of the Annexes are inserted, Article 5, paragraph 5, dealing with Annex I is modified accordingly). |
| --- | --- |

—

the clarification of the status and content of the Annexes (several points of the Annexes are modified, new Recitals 15 and 17 on the status of the Annexes are inserted, Article 5, paragraph 5, dealing with Annex I is modified accordingly).

IV.   CONCLUSION

The Council considers that its common position, which incorporates the Amendments mentioned in Sections III.2(a) and (b), takes good account of the opinion of the European Parliament in first reading.

It represents a balanced solution which ensures both the protection of the consumer and the good functioning of the internal market as this new common framework will simplify the legislative environment in which traders and consumers operate whilst guaranteeing at the same time a high level of consumer protection.

---

(1)  OJ C 104 E, 30.4.2004.

(2)  OJ C 108, 30.4.2004, p. 81.

---

| 15.2.2005 | EN | Official Journal of the European Union | CE 38/21 |
| --- | --- | --- | --- |

15.2.2005

EN

Official Journal of the European Union

CE 38/21

---

COMMON POSITION (EC) No 7/2005

adopted by the Council on 15 November 2004

with a view to adopting Regulation (EC) No .../2005 of the European Parliament and of the Council of ... amending Council Regulations (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71

(2005/C 38 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 42 and 308 thereof,

Having regard to the proposal from the Commission,

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

After consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),

Whereas:

| (1) | Certain amendments should be made to Regulations (EEC) No 1408/71 (3) and (EEC) No 574/72 (4), in order to take account of recent developments in the case law of the Court of Justice of the European Communities, to facilitate the application of those Regulations and to reflect changes in the social security legislation of the Member States. |
| --- | --- |

(1)

Certain amendments should be made to Regulations (EEC) No 1408/71 (3) and (EEC) No 574/72 (4), in order to take account of recent developments in the case law of the Court of Justice of the European Communities, to facilitate the application of those Regulations and to reflect changes in the social security legislation of the Member States.

| (2) | In order to take account of recent developments in case law, the conclusions of judgments should be drawn, particularly in the cases of Johann Franz Duchon v. Pensionsversicherungsanstalt der Angestellten (5) and Office national de l'emploi v. Calogero Spataro (6). |
| --- | --- |

(2)

In order to take account of recent developments in case law, the conclusions of judgments should be drawn, particularly in the cases of Johann Franz Duchon v. Pensionsversicherungsanstalt der Angestellten (5) and Office national de l'emploi v. Calogero Spataro (6).

| (3) | The judgments in Friedrich Jauch v. Pensionsversicherungsanstalt der Arbeiter and Ghislain Leclere, Alina Deaconescu v. Caisse nationale des prestations familiales (7), concerning the classification of special non-contributory cash benefits require, for reasons of legal safety, that the two cumulative criteria to be taken into account be specified so that such benefits can feature in Annex IIa to Regulation (EEC) No 1408/71. On this basis, there is a case for revising the Annex, taking into account legislative amendments in the Member States affecting this type of benefits, which are subject to specific coordination given their mixed nature. In addition, it is important to specify the transitional provisions relating to the benefit which was the subject of the judgment in the Jauch case in order to protect the rights of beneficiaries. |
| --- | --- |

(3)

The judgments in Friedrich Jauch v. Pensionsversicherungsanstalt der Arbeiter and Ghislain Leclere, Alina Deaconescu v. Caisse nationale des prestations familiales (7), concerning the classification of special non-contributory cash benefits require, for reasons of legal safety, that the two cumulative criteria to be taken into account be specified so that such benefits can feature in Annex IIa to Regulation (EEC) No 1408/71. On this basis, there is a case for revising the Annex, taking into account legislative amendments in the Member States affecting this type of benefits, which are subject to specific coordination given their mixed nature. In addition, it is important to specify the transitional provisions relating to the benefit which was the subject of the judgment in the Jauch case in order to protect the rights of beneficiaries.

| (4) | On the basis of the case-law relating to the relationships between Regulation (EEC) No 1408/71 and the provisions of bilateral social security agreements, it is necessary to review Annex III to that Regulation. The entries in part A of Annex III are only justified in two cases: where they are more favourable to migrant workers (8), or where they relate to specific and exceptional situations, usually linked to historical circumstances. In addition, it is not appropriate to accept entries in part B except where exceptional and objective situations justify a derogation from Article 3(1) of that Regulation and from Articles 12, 39 and 42 of the Treaty (9). |
| --- | --- |

(4)

On the basis of the case-law relating to the relationships between Regulation (EEC) No 1408/71 and the provisions of bilateral social security agreements, it is necessary to review Annex III to that Regulation. The entries in part A of Annex III are only justified in two cases: where they are more favourable to migrant workers (8), or where they relate to specific and exceptional situations, usually linked to historical circumstances. In addition, it is not appropriate to accept entries in part B except where exceptional and objective situations justify a derogation from Article 3(1) of that Regulation and from Articles 12, 39 and 42 of the Treaty (9).

| (5) | In order to facilitate the application of Regulation (EEC) No 1408/71, there should be certain provisions concerning, on the one hand, civil servants and persons treated as such and, on the other, members of the travelling or flying personnel of an undertaking which operates international transport services for passengers or goods by rail, road, air or inland waterway, and also to specify the methods for determining the average amount to take into account in the context of Article 23 of that Regulation. |
| --- | --- |

(5)

In order to facilitate the application of Regulation (EEC) No 1408/71, there should be certain provisions concerning, on the one hand, civil servants and persons treated as such and, on the other, members of the travelling or flying personnel of an undertaking which operates international transport services for passengers or goods by rail, road, air or inland waterway, and also to specify the methods for determining the average amount to take into account in the context of Article 23 of that Regulation.

| (6) | The revision of Annex IIa to Regulation (EEC) No 1408/71 will lead to the removal of some existing entries and, taking into account legislative amendments in some Member States, to the inclusion of certain new entries. In the latter case, it is then for these Member States to consider the need for transitional arrangements or bilateral solutions to address the situation of persons whose acquired rights may be affected as a consequence, |
| --- | --- |

(6)

The revision of Annex IIa to Regulation (EEC) No 1408/71 will lead to the removal of some existing entries and, taking into account legislative amendments in some Member States, to the inclusion of certain new entries. In the latter case, it is then for these Member States to consider the need for transitional arrangements or bilateral solutions to address the situation of persons whose acquired rights may be affected as a consequence,

HAVE ADOPTED THIS REGULATION:

Article 1

Regulation (EEC) No 1408/71 is hereby amended as follows:

| 1. | Article 3 shall be amended as follows:






  (a) | in paragraph 1, the words ‘resident in the territory of one of the Member States’ shall be deleted; |
| --- | --- | --- |

1.

Article 3 shall be amended as follows:

(a)

in paragraph 1, the words ‘resident in the territory of one of the Member States’ shall be deleted;

| (b) | in paragraph 3, the words ‘and the provisions of conventions concluded pursuant to Article 8(1)’ shall be deleted; |
| --- | --- |

(b)

in paragraph 3, the words ‘and the provisions of conventions concluded pursuant to Article 8(1)’ shall be deleted;

| 2. | Article 4(2a) shall be replaced by the following:
  ‘2a.   This Article shall apply to special non-contributory cash benefits which are provided according to legislation which, because of its personal scope, objectives and/or conditions for entitlement has characteristics both of the social security legislation referred to in paragraph 1 and of social assistance.
  “Special non-contributory cash benefits” means those:






  (a) | which are intended to provide either:






  (i) | supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in paragraph 1, and which guarantee the persons concerned a minimum subsistence income having regard to the economic and social situation in the Member State concerned; or |
| --- | --- | --- | --- |

2.

Article 4(2a) shall be replaced by the following:

‘2a.   This Article shall apply to special non-contributory cash benefits which are provided according to legislation which, because of its personal scope, objectives and/or conditions for entitlement has characteristics both of the social security legislation referred to in paragraph 1 and of social assistance.

“Special non-contributory cash benefits” means those:

(a)

which are intended to provide either:

(i)

supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in paragraph 1, and which guarantee the persons concerned a minimum subsistence income having regard to the economic and social situation in the Member State concerned; or

| (ii) | solely specific protection for the disabled, closely linked to the said person's social environment in the Member State concerned, and |
| --- | --- |

(ii)

solely specific protection for the disabled, closely linked to the said person's social environment in the Member State concerned, and

| (b) | where the financing exclusively derives from compulsory taxation intended to cover general public expenditure and the conditions for providing and for calculating the benefits are not dependent on any contribution in respect of the beneficiary. However, benefits provided to supplement a contributory benefit shall not be considered to be contributory benefits for this reason alone; and |
| --- | --- |

(b)

where the financing exclusively derives from compulsory taxation intended to cover general public expenditure and the conditions for providing and for calculating the benefits are not dependent on any contribution in respect of the beneficiary. However, benefits provided to supplement a contributory benefit shall not be considered to be contributory benefits for this reason alone; and

| (c) | which are listed in Annex IIa.’; |
| --- | --- |

(c)

which are listed in Annex IIa.’;

| 3. | Article 7(2)(c) shall be replaced by the following:






  ‘(c) | certain provisions of social security conventions entered into by the Member States before the date of application of this Regulation provided that they are more favourable to the beneficiaries or if they arise from specific historical circumstances and their effect is limited in time if these provisions are listed in Annex III.’; |
| --- | --- | --- |

3.

Article 7(2)(c) shall be replaced by the following:

‘(c)

certain provisions of social security conventions entered into by the Member States before the date of application of this Regulation provided that they are more favourable to the beneficiaries or if they arise from specific historical circumstances and their effect is limited in time if these provisions are listed in Annex III.’;

| 4. | Article 9a shall be replaced by the following:
  ‘Article 9a
  Prolongation of the reference period
  If the legislation of a Member State subordinates recognition of entitlement to a benefit to the completion of a minimum period of insurance during a determined period preceding the contingency insured against (reference period) and lays down that periods during which benefits were paid under the legislation of that Member State or periods devoted to child-rearing in the territory of that Member State shall extend this reference period, the periods during which invalidity or old-age pensions or sickness, unemployment, industrial accidents at work or occupational disease benefits were paid under the legislation of another Member State and periods devoted to child-rearing in the territory of another Member State shall also extend this reference period.’; |
| --- | --- |

4.

Article 9a shall be replaced by the following:

‘Article 9a

Prolongation of the reference period

If the legislation of a Member State subordinates recognition of entitlement to a benefit to the completion of a minimum period of insurance during a determined period preceding the contingency insured against (reference period) and lays down that periods during which benefits were paid under the legislation of that Member State or periods devoted to child-rearing in the territory of that Member State shall extend this reference period, the periods during which invalidity or old-age pensions or sickness, unemployment, industrial accidents at work or occupational disease benefits were paid under the legislation of another Member State and periods devoted to child-rearing in the territory of another Member State shall also extend this reference period.’;

| 5. | Article 10a(1) shall be replaced by the following:
  ‘1.   The provisions of Article 10 and of Title III shall not apply to the special non-contributory cash benefits referred to in Article 4(2a). The persons to whom this Regulation applies shall receive these benefits exclusively in the territory of the Member State in which they reside and under the legislation of that State, in so far as these benefits are mentioned in Annex IIa. Benefits shall be paid by, and at the expense of, the institution of the place of residence.’; |
| --- | --- |

5.

Article 10a(1) shall be replaced by the following:

‘1.   The provisions of Article 10 and of Title III shall not apply to the special non-contributory cash benefits referred to in Article 4(2a). The persons to whom this Regulation applies shall receive these benefits exclusively in the territory of the Member State in which they reside and under the legislation of that State, in so far as these benefits are mentioned in Annex IIa. Benefits shall be paid by, and at the expense of, the institution of the place of residence.’;

| 6. | in Article 23, the following paragraph shall be inserted:
  ‘2a.   The provisions of paragraphs 1 and 2 shall also apply where the legislation applied by the competent institution provides for a specific reference period and this period coincides, where appropriate, with the whole or part of the periods completed by the person concerned under the legislation of one or more other Member States.’; |
| --- | --- |

6.

in Article 23, the following paragraph shall be inserted:

‘2a.   The provisions of paragraphs 1 and 2 shall also apply where the legislation applied by the competent institution provides for a specific reference period and this period coincides, where appropriate, with the whole or part of the periods completed by the person concerned under the legislation of one or more other Member States.’;

| 7. | Article 35(2) shall be deleted; |
| --- | --- |

7.

Article 35(2) shall be deleted;

| 8. | Article 69(4) shall be deleted; |
| --- | --- |

8.

Article 69(4) shall be deleted;

| 9. | the following Articles shall be inserted:
  ‘Article 95f
  Transitional provisions relating to Annex II, section I, under the headings “D. GERMANY” and “R. AUSTRIA”.
  1.   Annex II, section I, under the headings “D. GERMANY” and “R. AUSTRIA”, as amended by Regulation (EC) No .../2005 of the European Parliament and of the Council of.... amending Council Regulations (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (10), shall not establish any entitlement for the period prior to 1 January 2005.
  2.   Any period of insurance and, where appropriate, any period of employment, self-employment or residence under the legislation of a Member State prior to 1 January 2005, shall be taken into consideration in determining acquired rights in accordance with the provisions of this Regulation.
  3.   Subject to the provisions of paragraph 1, a right shall be acquired under this Regulation even where it relates to a contingency that occurred prior to 1 January 2005.
  4.   Any benefit that has not been awarded or that has been suspended on account of the nationality or the residence of the person concerned shall, at the latter's request, be awarded or resumed from 1 January 2005, provided that the rights for which benefits were previously awarded did not give rise to a lump-sum payment.
  5.   The rights of persons to whom a pension was awarded prior to 1 January 2005 may, on the application of the persons concerned, be reviewed, taking account of the provisions of this Regulation. This shall also apply to other benefits pursuant to Article 78.
  6.   If an application referred to in paragraph 4 or 5 is submitted within two years from 1 January 2005, the rights acquired under this Regulation shall have effect from that date, and the provisions of the legislation of any Member State concerning the forfeiture or limitation of rights may not be invoked against the persons concerned.
  7.   If the application referred to in paragraph 4 or 5 is submitted after the expiry of the two-year period after 1 January 2005, rights which have not been forfeited or barred by limitation shall have effect from the date on which the application was submitted, except where more favourable provisions of the legislation of any Member State apply.
  Article 95g
  Transitional provisions relating to the deletion, in Annex IIa, of the entry relating to the Austrian care allowance (Pflegegeld).
  In the case of applications for care allowances under Austrian federal law (Bundespflegegeldgesetz) submitted not later than 8 March 2001 on the basis of Article 10a(3) of this Regulation, this provision shall continue to apply as long as the beneficiary of the care allowance continues to reside in Austria after 8 March 2001. |
| --- | --- |

9.

the following Articles shall be inserted:

‘Article 95f

Transitional provisions relating to Annex II, section I, under the headings “D. GERMANY” and “R. AUSTRIA”.

1.   Annex II, section I, under the headings “D. GERMANY” and “R. AUSTRIA”, as amended by Regulation (EC) No .../2005 of the European Parliament and of the Council of.... amending Council Regulations (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (10), shall not establish any entitlement for the period prior to 1 January 2005.

2.   Any period of insurance and, where appropriate, any period of employment, self-employment or residence under the legislation of a Member State prior to 1 January 2005, shall be taken into consideration in determining acquired rights in accordance with the provisions of this Regulation.

3.   Subject to the provisions of paragraph 1, a right shall be acquired under this Regulation even where it relates to a contingency that occurred prior to 1 January 2005.

4.   Any benefit that has not been awarded or that has been suspended on account of the nationality or the residence of the person concerned shall, at the latter's request, be awarded or resumed from 1 January 2005, provided that the rights for which benefits were previously awarded did not give rise to a lump-sum payment.

5.   The rights of persons to whom a pension was awarded prior to 1 January 2005 may, on the application of the persons concerned, be reviewed, taking account of the provisions of this Regulation. This shall also apply to other benefits pursuant to Article 78.

6.   If an application referred to in paragraph 4 or 5 is submitted within two years from 1 January 2005, the rights acquired under this Regulation shall have effect from that date, and the provisions of the legislation of any Member State concerning the forfeiture or limitation of rights may not be invoked against the persons concerned.

7.   If the application referred to in paragraph 4 or 5 is submitted after the expiry of the two-year period after 1 January 2005, rights which have not been forfeited or barred by limitation shall have effect from the date on which the application was submitted, except where more favourable provisions of the legislation of any Member State apply.

Article 95g

Transitional provisions relating to the deletion, in Annex IIa, of the entry relating to the Austrian care allowance (Pflegegeld).

In the case of applications for care allowances under Austrian federal law (Bundespflegegeldgesetz) submitted not later than 8 March 2001 on the basis of Article 10a(3) of this Regulation, this provision shall continue to apply as long as the beneficiary of the care allowance continues to reside in Austria after 8 March 2001.

| 10. | Annexes II, IIa, III, IV and VI shall be amended in accordance with Annex I to this Regulation. |
| --- | --- |

10.

Annexes II, IIa, III, IV and VI shall be amended in accordance with Annex I to this Regulation.

Article 2

Regulation (EEC) No 574/72 is hereby amended as follows:

| 1. | Article 4(11) shall be deleted; |
| --- | --- |

1.

Article 4(11) shall be deleted;

| 2. | the following Article shall be inserted:
  ‘Article 10c
  Formalities laid down in the event of the application of Article 13(2)(d) of the Regulation to civil servants and persons treated as such.
  For the application of Article 13(2)(d), the institution designated by the competent authority of the Member State whose legislation is applicable shall issue a certificate stating that the civil servant or the person treated as such is subject to its legislation.’; |
| --- | --- |

2.

the following Article shall be inserted:

‘Article 10c

Formalities laid down in the event of the application of Article 13(2)(d) of the Regulation to civil servants and persons treated as such.

For the application of Article 13(2)(d), the institution designated by the competent authority of the Member State whose legislation is applicable shall issue a certificate stating that the civil servant or the person treated as such is subject to its legislation.’;

| 3. | Article 12a shall be amended as follows:






  (a) | the title shall be replaced by the following: |
| --- | --- | --- |

3.

Article 12a shall be amended as follows:

(a)

the title shall be replaced by the following:

| (b) | the introductory sentence shall be replaced by the following:
  ‘For the application of the provisions of Article 14(2) and (3), Article 14a(2) to (4) and Article 14c of the Regulation, the following rules shall apply:’; |
| --- | --- |

(b)

the introductory sentence shall be replaced by the following:

‘For the application of the provisions of Article 14(2) and (3), Article 14a(2) to (4) and Article 14c of the Regulation, the following rules shall apply:’;

| (c) | the following paragraph shall be inserted:
  ‘1a.   Where, in accordance with Article 14(2)(a) of the Regulation, a person who is on the travelling or flying personnel of an international transport undertaking is subject to the legislation of the Member State in whose territory the registered office or place of business of the undertaking, or the branch or permanent establishment employing him, is located, or where he resides and is predominantly employed, the institution designated by the competent authority of that Member State shall issue, to the person concerned, a certificate stating that he is subject to its legislation.’; |
| --- | --- |

(c)

the following paragraph shall be inserted:

‘1a.   Where, in accordance with Article 14(2)(a) of the Regulation, a person who is on the travelling or flying personnel of an international transport undertaking is subject to the legislation of the Member State in whose territory the registered office or place of business of the undertaking, or the branch or permanent establishment employing him, is located, or where he resides and is predominantly employed, the institution designated by the competent authority of that Member State shall issue, to the person concerned, a certificate stating that he is subject to its legislation.’;

| 4. | Article 32a shall be deleted; |
| --- | --- |

4.

Article 32a shall be deleted;

| 5. | the Annexes shall be amended in accordance with Annex II to this Regulation. |
| --- | --- |

5.

the Annexes shall be amended in accordance with Annex II to this Regulation.

Article 3

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

Article 1(9), as far as Article 95f of Regulation (EEC) No 1408/71 is concerned, Annex I points (1)(a) and (1)(b) and Annex II points (2) and (4) shall apply from 1 January 2005.

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

Done at Brussels, ...

For the European Parliament

The President

...

For the Council

The President

...

---

(1)  OJ C 80, 30.3.2004, p. 118.

1

(2)  Opinion of the European Parliament of 11 March 2004 (OJ C 102 E, 28.4.2004, p. 804), Council Common Position of 15 November 2004 and position of the European Parliament of ....... (not yet published in the Official Journal).

2

(3)  OJ L 149, 5.7.1971, p. 2. Regulation updated by Regulation (EC) No 118/97 (OJ L 28, 30.1.1997, p. 1), last amended by Regulation (EC) No 631/2004 of the European Parliament and of the Council (OJ L 100, 6.4.2004, p. 1) and repealed with effect from the date of entry into force of the implementing regulation by Regulation (EC) No 883/2004 of the European Parliament and of the Council (OJ L 166, 30.4.2004, p. 1); Regulation to be repealed from the date of application of Regulation (EC) No 883/2004 of the European Parliament and of the Council (OJ L 166, 30.4.2004, p. 1).

3

(4)  OJ L 74, 27.3.1972, p. 1. Regulation as last amended by Regulation (EC) No 631/2004 of the European Parliament and of the Council (OJ L 100, 6.4.2004, p. 1).

4

(5)  Judgment of 18 April 2002 in Case C-290/00 [ECR] 2002 I-3567.

5

(6)  Judgment of 13 June 1996 in Case C-170/95 [ECR] 1996 I-2921.

6

(7)  Judgments of 8 March 2001 in Case C-215/99 [ECR] 2001 I-1901 and 31 May 2001 in Case C-43/99 [ECR] 2001 I-4265.

7

(8)  The principle of the most favourable treatment has been recalled by the European Court of Justice in its Judgments of 7 February 1991, Case C-227/89 [ECR] 1991 I-323; of 9 November 1995, Case C- 475/93 [ECR] 1995 I-3813; of 9 November 2000, Case C-75/99 [ECR] 2000 I-9399; and of 5 February 2002, Case C-277/99 [ECR] 2002 I-1261.

8

(9)  Judgment of 30 April 1996, Case C-214/94 [ECR] 1996 I-2253;

9

Judgment of 30 April 1996, Case C-308/93 [ECR] 1996 I-2097;

Judgment of 15 January 2002, Case C-55/00 [ECR] 2002 I-413.

(10)  OJ L...’.

10

---

ANNEX I

The Annexes to Regulation (EEC) No 1408/71 are hereby amended as follows:

| 1. | Annex II shall be amended as follows:






  (a) | In section I, under the heading ‘D. GERMANY’, the text shall be replaced by the words: ‘does not apply’. |
| --- | --- | --- |

1.

Annex II shall be amended as follows:

(a)

In section I, under the heading ‘D. GERMANY’, the text shall be replaced by the words: ‘does not apply’.

| (b) | in section I, under the heading ‘R. AUSTRIA’, the text shall be replaced by the words: ‘does not apply’. |
| --- | --- |

(b)

in section I, under the heading ‘R. AUSTRIA’, the text shall be replaced by the words: ‘does not apply’.

| (c) | section II shall be amended as follows:






  (i) | under the heading ‘G. SPAIN’, the word ‘None’ shall be replaced by the following:
  ‘Childbirth allowances (one-off cash benefits for the birth of the third child and subsequent children and one-off cash benefits in the event of a multiple birth)’; |
| --- | --- | --- |

(c)

section II shall be amended as follows:

(i)

under the heading ‘G. SPAIN’, the word ‘None’ shall be replaced by the following:

‘Childbirth allowances (one-off cash benefits for the birth of the third child and subsequent children and one-off cash benefits in the event of a multiple birth)’;

| (ii) | under the heading ‘H. FRANCE’, the text shall be replaced by the following:
  ‘Birth or adoption grant (early childhood benefit)’; |
| --- | --- |

(ii)

under the heading ‘H. FRANCE’, the text shall be replaced by the following:

‘Birth or adoption grant (early childhood benefit)’;

| (iii) | under the heading ‘W. FINLAND’, the text shall be replaced by the following:
  ‘Maternity package, maternity lump-sum grant and assistance in the form of a lump-sum intended to offset the cost of international adoption pursuant to the Maternity Grant Act’; |
| --- | --- |

(iii)

under the heading ‘W. FINLAND’, the text shall be replaced by the following:

‘Maternity package, maternity lump-sum grant and assistance in the form of a lump-sum intended to offset the cost of international adoption pursuant to the Maternity Grant Act’;

| (d) | in section III, under the heading ‘D. GERMANY’, point (b) shall be deleted; |
| --- | --- |

(d)

in section III, under the heading ‘D. GERMANY’, point (b) shall be deleted;

| 2. | Annex IIa shall be replaced by the following text that includes, unchanged, the entries as set out in the 2003 Act of Accession:
  A.   BELGIUM






  (a) | Income replacement allowance (Law of 27 February 1987) |
| --- | --- | --- |

2.

Annex IIa shall be replaced by the following text that includes, unchanged, the entries as set out in the 2003 Act of Accession:

A.   BELGIUM

(a)

Income replacement allowance (Law of 27 February 1987)

| (b) | Guaranteed income for elderly persons (Law of 22 March 2001). |
| --- | --- |

(b)

Guaranteed income for elderly persons (Law of 22 March 2001).

B.   CZECH REPUBLIC

Social allowance (State Social Support Act No 117/1995 Sb).

C.   DENMARK

Accommodation expenses for pensioners (Law on individual accommodation assistance, consolidated by Law No 204 of 29 March 1995).

D.   GERMANY

Basic subsistence income for the elderly and for persons with reduced earning capacity under Chapter 4 of Book XII of the Social Code.

E.   ESTONIA

| (a) | Disabled adult allowance (Social Benefits for Disabled Persons Act of 27 January 1999). |
| --- | --- |

(a)

Disabled adult allowance (Social Benefits for Disabled Persons Act of 27 January 1999).

| (b) | State unemployment allowance (Social Protection of the Unemployed Act of 1 October 2000). |
| --- | --- |

(b)

State unemployment allowance (Social Protection of the Unemployed Act of 1 October 2000).

F.   GREECE

Special benefits for the elderly (Law 1296/82).

G.   SPAIN

| (a) | Minimum income guarantee (Law No 13/82 of 7 April 1982); |
| --- | --- |

(a)

Minimum income guarantee (Law No 13/82 of 7 April 1982);

| (b) | cash benefits to assist the elderly and invalids unable to work (Royal Decree No 2620/81 of 24 July 1981); |
| --- | --- |

(b)

cash benefits to assist the elderly and invalids unable to work (Royal Decree No 2620/81 of 24 July 1981);

| (c) | non-contributory invalidity and retirement pensions as provided for in Article 38(1) of the Consolidated Text of the General Law on Social Security, approved by Royal Legislative Decree No 1/1994 of 20 June 1994; |
| --- | --- |

(c)

non-contributory invalidity and retirement pensions as provided for in Article 38(1) of the Consolidated Text of the General Law on Social Security, approved by Royal Legislative Decree No 1/1994 of 20 June 1994;

| (d) | allowances to promote mobility and to compensate for transport costs (Law No 13/1982 of 7 April 1982). |
| --- | --- |

(d)

allowances to promote mobility and to compensate for transport costs (Law No 13/1982 of 7 April 1982).

H.   FRANCE

| (a) | supplementary allowances of the special invalidity fund and the old age solidarity fund (Law of 30 June 1956, codified in Book VIII of the Social security code); |
| --- | --- |

(a)

supplementary allowances of the special invalidity fund and the old age solidarity fund (Law of 30 June 1956, codified in Book VIII of the Social security code);

| (b) | disabled adults' allowance (Law of 30 June 1975, codified in Book VIII of the Social security code); |
| --- | --- |

(b)

disabled adults' allowance (Law of 30 June 1975, codified in Book VIII of the Social security code);

| (c) | special allowance (Law of 10 July 1952, codified in Book VIII of the Social security code). |
| --- | --- |

(c)

special allowance (Law of 10 July 1952, codified in Book VIII of the Social security code).

I.   IRELAND

| (a) | Unemployment assistance (Social Welfare (Consolidation) Act 1993, Part III, Chapter 2); |
| --- | --- |

(a)

Unemployment assistance (Social Welfare (Consolidation) Act 1993, Part III, Chapter 2);

| (b) | old-age (non-contributory) pension (Social Welfare (Consolidation) Act 1993, Part III, Chapter 4); |
| --- | --- |

(b)

old-age (non-contributory) pension (Social Welfare (Consolidation) Act 1993, Part III, Chapter 4);

| (c) | widow's (non-contributory) pension and widower's (non-contributory) pension (Social Welfare (Consolidation) Act 1993, Part III, Chapter 6 as amended by Part V of the Social Welfare Act 1997); |
| --- | --- |

(c)

widow's (non-contributory) pension and widower's (non-contributory) pension (Social Welfare (Consolidation) Act 1993, Part III, Chapter 6 as amended by Part V of the Social Welfare Act 1997);

| (d) | disability allowance (Social Welfare Act 1996, Part IV); |
| --- | --- |

(d)

disability allowance (Social Welfare Act 1996, Part IV);

| (e) | mobility allowance (Health Act 1970, Section 61); |
| --- | --- |

(e)

mobility allowance (Health Act 1970, Section 61);

| (f) | blind pension (Social Welfare (Consolidation) Act 1993, Part III, Chapter 5). |
| --- | --- |

(f)

blind pension (Social Welfare (Consolidation) Act 1993, Part III, Chapter 5).

J.   ITALY

| (a) | Social pensions for persons without means (Law No 153 of 30 April 1969); |
| --- | --- |

(a)

Social pensions for persons without means (Law No 153 of 30 April 1969);

| (b) | pensions and allowances for the civilian disabled or invalids (Laws No 118 of 30 March 1974, No 18 of 11 February 1980 and No 508 of 23 November 1988); |
| --- | --- |

(b)

pensions and allowances for the civilian disabled or invalids (Laws No 118 of 30 March 1974, No 18 of 11 February 1980 and No 508 of 23 November 1988);

| (c) | pensions and allowances for the deaf and dumb (Laws No 381 of 26 May 1970 and No 508 of 23 November 1988); |
| --- | --- |

(c)

pensions and allowances for the deaf and dumb (Laws No 381 of 26 May 1970 and No 508 of 23 November 1988);

| (d) | Pensions and allowances for the civilian blind (Laws No 382 of 27 May 1970 and No 508 of 23 November 1988); |
| --- | --- |

(d)

Pensions and allowances for the civilian blind (Laws No 382 of 27 May 1970 and No 508 of 23 November 1988);

| (e) | benefits supplementing the minimum pensions (Laws No 218 of 4 April 1952, No 638 of 11 November 1983 and No 407 of 29 December 1990); |
| --- | --- |

(e)

benefits supplementing the minimum pensions (Laws No 218 of 4 April 1952, No 638 of 11 November 1983 and No 407 of 29 December 1990);

| (f) | benefits supplementing disability allowances (Law No 222 of 12 June 1984); |
| --- | --- |

(f)

benefits supplementing disability allowances (Law No 222 of 12 June 1984);

| (g) | social allowance (Law No 335 of 8 August 1995); |
| --- | --- |

(g)

social allowance (Law No 335 of 8 August 1995);

| (h) | social increase (Article 1 (1) and (12) of Law No 544 of 29 December 1988 and successive amendments). |
| --- | --- |

(h)

social increase (Article 1 (1) and (12) of Law No 544 of 29 December 1988 and successive amendments).

K.   CYPRUS

| (a) | Social Pension (Social Pension Law of 1995 (Law 25(I)/95), as amended); |
| --- | --- |

(a)

Social Pension (Social Pension Law of 1995 (Law 25(I)/95), as amended);

| (b) | severe motor disability allowance (Council of Ministers' Decision Nos 38.210 of 16 October 1992, No 41.370 of 1 August 1994, No 46.183 of 11 June 1997 and No 53.675 of 16 May 2001); |
| --- | --- |

(b)

severe motor disability allowance (Council of Ministers' Decision Nos 38.210 of 16 October 1992, No 41.370 of 1 August 1994, No 46.183 of 11 June 1997 and No 53.675 of 16 May 2001);

| (c) | special grant to blind persons (Special Grants Law of 1996 (Law 77(I)/96), as amended). |
| --- | --- |

(c)

special grant to blind persons (Special Grants Law of 1996 (Law 77(I)/96), as amended).

L.   LATVIA

| (a) | State Social Security Benefit (Law on social assistance of 26 October 1995); |
| --- | --- |

(a)

State Social Security Benefit (Law on social assistance of 26 October 1995);

| (b) | allowance for the compensation of transportation expenses for disabled persons with restricted mobility (Law on social assistance of 26 October 1995). |
| --- | --- |

(b)

allowance for the compensation of transportation expenses for disabled persons with restricted mobility (Law on social assistance of 26 October 1995).

M.   LITHUANIA

| (a) | Social pension (Law of 1994 on social pensions); |
| --- | --- |

(a)

Social pension (Law of 1994 on social pensions);

| (b) | special transport compensation for the disabled who have mobility problems (Law of 2000 on Transport Compensation, Article 7). |
| --- | --- |

(b)

special transport compensation for the disabled who have mobility problems (Law of 2000 on Transport Compensation, Article 7).

N.   LUXEMBOURG

Income for the seriously disabled (Article 1(2), Law of 12 September 2003), with the exception of persons recognised as being disabled workers and employed on the mainstream labour market or in a sheltered environment.

O.   HUNGARY

| (a) | Invalidity annuity (Decree No 83/1987 (XII 27) of the Council of Ministers on Invalidity Annuity); |
| --- | --- |

(a)

Invalidity annuity (Decree No 83/1987 (XII 27) of the Council of Ministers on Invalidity Annuity);

| (b) | non-contributory old-age allowance (Act III of 1993 on Social Administration and Social Benefits); |
| --- | --- |

(b)

non-contributory old-age allowance (Act III of 1993 on Social Administration and Social Benefits);

| (c) | Transport allowance (Government Decree No 164/1995 (XII 27) on Transport allowances for persons with severe physical handicap). |
| --- | --- |

(c)

Transport allowance (Government Decree No 164/1995 (XII 27) on Transport allowances for persons with severe physical handicap).

P.   MALTA

| (a) | Supplementary allowance (Section 73 of the Social Security Act (Cap. 318) 1987); |
| --- | --- |

(a)

Supplementary allowance (Section 73 of the Social Security Act (Cap. 318) 1987);

| (b) | age pension (Social Security Act (Cap. 318) 1987). |
| --- | --- |

(b)

age pension (Social Security Act (Cap. 318) 1987).

Q.   NETHERLANDS

| (a) | Disablement Assistance Act for Handicapped Young Persons, of 24 April 1997 (Wajong); |
| --- | --- |

(a)

Disablement Assistance Act for Handicapped Young Persons, of 24 April 1997 (Wajong);

| (b) | supplementary Benefits Act of 6 November 1986 (TW). |
| --- | --- |

(b)

supplementary Benefits Act of 6 November 1986 (TW).

R.   AUSTRIA

Compensatory supplement (Federal Act of 9 September 1955 on General Social Insurance – ASVG, Federal Act of 11 October 1978 on social insurance for persons engaged in trade and commerce – GSVG and Federal Act of 11 October 1978 on social insurance for farmers – BSVG).

S.   POLAND

Social pension (Act of 29 November 1990 on social assistance).

T.   PORTUGAL

| (a) | Non-contributory State old-age and invalidity pension (Decree-Law No 464/80 of 13 October 1980); |
| --- | --- |

(a)

Non-contributory State old-age and invalidity pension (Decree-Law No 464/80 of 13 October 1980);

| (b) | non-contributory widowhood pension (Regulatory Decree No 52/81 of 11 November 1981). |
| --- | --- |

(b)

non-contributory widowhood pension (Regulatory Decree No 52/81 of 11 November 1981).

U.   SLOVENIA

| (a) | State pension (Pension and Disability Insurance Act of 23 December 1999); |
| --- | --- |

(a)

State pension (Pension and Disability Insurance Act of 23 December 1999);

| (b) | income support for pensioners (Pension and Disability Insurance Act of 23 December 1999); |
| --- | --- |

(b)

income support for pensioners (Pension and Disability Insurance Act of 23 December 1999);

| (c) | maintenance allowance (Pension and Disability Insurance Act of 23 December 1999). |
| --- | --- |

(c)

maintenance allowance (Pension and Disability Insurance Act of 23 December 1999).

V.   SLOVAKIA

Adjustment of pensions as the sole source of income (Act No 100/1988 Zb.).

W.   FINLAND

| (a) | Disability allowance (Disability Allowance Act, 124/88); |
| --- | --- |

(a)

Disability allowance (Disability Allowance Act, 124/88);

| (b) | childcare allowance (Child care Allowance Act, 444/69); |
| --- | --- |

(b)

childcare allowance (Child care Allowance Act, 444/69);

| (c) | housing allowance for pensioners (Act concerning the Housing Allowance for Pensioners, 591/78); |
| --- | --- |

(c)

housing allowance for pensioners (Act concerning the Housing Allowance for Pensioners, 591/78);

| (d) | labour market support (Act on Unemployment benefits 1290/2002); |
| --- | --- |

(d)

labour market support (Act on Unemployment benefits 1290/2002);

| (e) | special assistance for immigrants (Act on Special Assistance for Immigrants, 1192/2002). |
| --- | --- |

(e)

special assistance for immigrants (Act on Special Assistance for Immigrants, 1192/2002).

X.   SWEDEN

| (a) | Housing supplements for persons receiving a pension (Law 2001:761); |
| --- | --- |

(a)

Housing supplements for persons receiving a pension (Law 2001:761);

| (b) | financial support for the elderly (Law 2001:853); |
| --- | --- |

(b)

financial support for the elderly (Law 2001:853);

| (c) | disability allowance and care allowance for disabled children (Law 1998:703). |
| --- | --- |

(c)

disability allowance and care allowance for disabled children (Law 1998:703).

Y.   UNITED KINGDOM

| (a) | State Pension credit (State Pension Credit Act 2002); |
| --- | --- |

(a)

State Pension credit (State Pension Credit Act 2002);

| (b) | income-based allowances for jobseekers (Jobseekers Act 1995, 28 June 1995, Sections 1, (2)(d)(ii) and 3, and Jobseekers (Northern Ireland) Order 1995 of 18 October 1995, Articles 3(2)(d)(ii) and 5); |
| --- | --- |

(b)

income-based allowances for jobseekers (Jobseekers Act 1995, 28 June 1995, Sections 1, (2)(d)(ii) and 3, and Jobseekers (Northern Ireland) Order 1995 of 18 October 1995, Articles 3(2)(d)(ii) and 5);

| (c) | income Support (Social Security Act 1986 of 25 July 1986, Section 20 to 22 and Section 23, and Social Security (Northern Ireland) Order 1986 of 5 November 1986, Articles 21 to 24); |
| --- | --- |

(c)

income Support (Social Security Act 1986 of 25 July 1986, Section 20 to 22 and Section 23, and Social Security (Northern Ireland) Order 1986 of 5 November 1986, Articles 21 to 24);

| (d) | disability living allowance (Disability Living Allowance and Disability Working Allowance Act 1991 of 27 June 1991, Section 1, and disability living allowance and disability working allowance (Northern Ireland) order 1991 of 24 July 1991, Article 3); |
| --- | --- |

(d)

disability living allowance (Disability Living Allowance and Disability Working Allowance Act 1991 of 27 June 1991, Section 1, and disability living allowance and disability working allowance (Northern Ireland) order 1991 of 24 July 1991, Article 3);

| (e) | attendance allowance (Social Security Act 1975 of 20 March 1975, Section 35, and Social Security (Northern Ireland) Act 1975 of 20 March 1975, Section 35); |
| --- | --- |

(e)

attendance allowance (Social Security Act 1975 of 20 March 1975, Section 35, and Social Security (Northern Ireland) Act 1975 of 20 March 1975, Section 35);

| (f) | carer's allowance (Social Security Act 1975 of 20 March 1975, Section 37, and Social Security (Northern Ireland) Act 1975 of 20 March 1975, Section 37).’; |
| --- | --- |

(f)

carer's allowance (Social Security Act 1975 of 20 March 1975, Section 37, and Social Security (Northern Ireland) Act 1975 of 20 March 1975, Section 37).’;

| 3. | Annex III shall be amended as follows:






  (a) | the following paragraph shall be introduced on top of the Annex under ‘General comments’:






  ‘3. | Account being taken of the provisions of Article 6 of this Regulation, it is to be noted that the provisions of bilateral Conventions which do not fall within the scope of this Regulation and which remain in force between Member States are not listed in this Annex, inter alia, provisions providing for aggregation of insurance periods fulfilled in a third country.’; |
| --- | --- | --- | --- |

3.

Annex III shall be amended as follows:

(a)

the following paragraph shall be introduced on top of the Annex under ‘General comments’:

‘3.

Account being taken of the provisions of Article 6 of this Regulation, it is to be noted that the provisions of bilateral Conventions which do not fall within the scope of this Regulation and which remain in force between Member States are not listed in this Annex, inter alia, provisions providing for aggregation of insurance periods fulfilled in a third country.’;

| (b) | in part A, the following points shall be deleted:
  points 2, 3(b), 5, 6, 7, 8, 9, 13, 16, 17, 19, 22, 23, 24, 48, 50, 51, 52, 53, 54, 58, 61, 62, 64, 69, 71(a) and (c), 73(a) and (b), 74, 75, 83(a), (b), (c), (d), (e), (f), (g), 85, 88, 89, 111, 112, 113, 114, 118, 121, 122, 124, 127, 128, 129, 130, 131, 132, 136, 139, 140, 145, 146, 147, 148, 149, 153, 156, 157, 159, 162, 163, 164, 165, 169, 172, 173, 175, 178, 179, 184, 188, 190, 193, 194, 195, 237, 238, 240, 243, 244, 245, 265, 270, 271, 272, 274, 277, 278, 279, 288, 289, 299, 300; |
| --- | --- |

(b)

in part A, the following points shall be deleted:

points 2, 3(b), 5, 6, 7, 8, 9, 13, 16, 17, 19, 22, 23, 24, 48, 50, 51, 52, 53, 54, 58, 61, 62, 64, 69, 71(a) and (c), 73(a) and (b), 74, 75, 83(a), (b), (c), (d), (e), (f), (g), 85, 88, 89, 111, 112, 113, 114, 118, 121, 122, 124, 127, 128, 129, 130, 131, 132, 136, 139, 140, 145, 146, 147, 148, 149, 153, 156, 157, 159, 162, 163, 164, 165, 169, 172, 173, 175, 178, 179, 184, 188, 190, 193, 194, 195, 237, 238, 240, 243, 244, 245, 265, 270, 271, 272, 274, 277, 278, 279, 288, 289, 299, 300;

| (c) | in part A, point 3(a) (Belgium – Germany) shall be replaced by the following:
  ‘Articles 3 and 4 of the Final Protocol of 7 December 1957 to the General Convention of that date, as in the Complementary Protocol of 10 November 1960 (reckoning of insurance periods completed in some border regions before, during and after the Second World War)’; |
| --- | --- |

(c)

in part A, point 3(a) (Belgium – Germany) shall be replaced by the following:

‘Articles 3 and 4 of the Final Protocol of 7 December 1957 to the General Convention of that date, as in the Complementary Protocol of 10 November 1960 (reckoning of insurance periods completed in some border regions before, during and after the Second World War)’;

| (d) | in part A, point 67 (Denmark – Finland) shall be replaced by the following:
  ‘Article 10 of the Nordic Convention on Social Security of 15 June 1992, concerning coverage of extra travel expenses in case of sickness during stay in another Nordic country making a more expensive return travel to the country of residence necessary’; |
| --- | --- |

(d)

in part A, point 67 (Denmark – Finland) shall be replaced by the following:

‘Article 10 of the Nordic Convention on Social Security of 15 June 1992, concerning coverage of extra travel expenses in case of sickness during stay in another Nordic country making a more expensive return travel to the country of residence necessary’;

| (e) | in part A, point 68 (Denmark – Sweden) shall be replaced by the following:
  ‘Article 10 of the Nordic Convention on Social Security of 15 June 1992, concerning coverage of extra travel expenses in case of sickness during stay in another Nordic country making a more expensive return travel to the country of residence necessary’; |
| --- | --- |

(e)

in part A, point 68 (Denmark – Sweden) shall be replaced by the following:

‘Article 10 of the Nordic Convention on Social Security of 15 June 1992, concerning coverage of extra travel expenses in case of sickness during stay in another Nordic country making a more expensive return travel to the country of residence necessary’;

| (f) | in part A, point 71(b) (Germany – Greece) shall be replaced by the following:
  ‘Articles 8(1), (2)(b) and (3), 9 to 11 and Chapters I and IV, in so far as they concern these Articles, of the Convention on unemployment insurance of 31 May 1961, together with the note in the minutes of 14 June 1980 (reckoning of insurance periods for unemployment benefits in case of transfer of residence from one State to another)’; |
| --- | --- |

(f)

in part A, point 71(b) (Germany – Greece) shall be replaced by the following:

‘Articles 8(1), (2)(b) and (3), 9 to 11 and Chapters I and IV, in so far as they concern these Articles, of the Convention on unemployment insurance of 31 May 1961, together with the note in the minutes of 14 June 1980 (reckoning of insurance periods for unemployment benefits in case of transfer of residence from one State to another)’;

| (g) | in part A, point 72 (Germany – Spain) shall be replaced by the following:
  ‘Article 45(2) of the Social Security Convention of 4 December 1973 (representation by diplomatic and consular authorities)’; |
| --- | --- |

(g)

in part A, point 72 (Germany – Spain) shall be replaced by the following:

‘Article 45(2) of the Social Security Convention of 4 December 1973 (representation by diplomatic and consular authorities)’;

| (h) | in part A, point 73 (Germany – France) of paragraphs (c), (d), (e) and (f) shall be replaced by the following:






  ‘(a) | Complementary Agreement No 4 of 10 July 1950 to the General Convention of the same date, as in Supplementary Agreement No 2 of 18 June 1955 (reckoning of periods of insurance completed between 1 July 1940 and 30 June 1950); |
| --- | --- | --- |

(h)

in part A, point 73 (Germany – France) of paragraphs (c), (d), (e) and (f) shall be replaced by the following:

‘(a)

Complementary Agreement No 4 of 10 July 1950 to the General Convention of the same date, as in Supplementary Agreement No 2 of 18 June 1955 (reckoning of periods of insurance completed between 1 July 1940 and 30 June 1950);

| (b) | Title I of the said Supplementary Agreement No 2 (reckoning of periods of insurance completed before 8 May 1945); |
| --- | --- |

(b)

Title I of the said Supplementary Agreement No 2 (reckoning of periods of insurance completed before 8 May 1945);

| (c) | Points 6, 7 and 8 of the General Protocol of 10 July 1950 to the General Convention of the same date (administrative arrangements); |
| --- | --- |

(c)

Points 6, 7 and 8 of the General Protocol of 10 July 1950 to the General Convention of the same date (administrative arrangements);

| (d) | Titles II, III and IV of the Agreement of 20 December 1963 (social security in the Saar)’; |
| --- | --- |

(d)

Titles II, III and IV of the Agreement of 20 December 1963 (social security in the Saar)’;

| (i) | in part A, point 79 (Germany – Luxembourg) shall be replaced by the following:
  ‘Articles 4, 5, 6 and 7 of the Treaty of 11 July 1959 (reckoning of insurance periods completed between September 1940 and June 1946)’; |
| --- | --- |

(i)

in part A, point 79 (Germany – Luxembourg) shall be replaced by the following:

‘Articles 4, 5, 6 and 7 of the Treaty of 11 July 1959 (reckoning of insurance periods completed between September 1940 and June 1946)’;

| (j) | in part A, point 83 (Germany – Austria) of paragraphs (h) and (i) shall be replaced by the following:
  ‘Article 1(5) and Article 8 of the Convention on Unemployment Insurance of 19 July 1978 and Article 10 of the Final Protocol to this Convention (granting of unemployment allowances to frontier workers by the previous State of employment) shall continue to apply to persons who have exercised an activity as a frontier worker on or before 1 January 2005 and become unemployed before 1 January 2011’; |
| --- | --- |

(j)

in part A, point 83 (Germany – Austria) of paragraphs (h) and (i) shall be replaced by the following:

‘Article 1(5) and Article 8 of the Convention on Unemployment Insurance of 19 July 1978 and Article 10 of the Final Protocol to this Convention (granting of unemployment allowances to frontier workers by the previous State of employment) shall continue to apply to persons who have exercised an activity as a frontier worker on or before 1 January 2005 and become unemployed before 1 January 2011’;

| (k) | in part A, point 90 (Germany – United Kingdom) of paragraphs (a), (b) and (c) shall be replaced by the following:






  ‘(a) | Articles 7(5) and 7(6) of the Convention on social security of 20 April 1960 (legislation applicable to civilians serving the military forces); |
| --- | --- | --- |

(k)

in part A, point 90 (Germany – United Kingdom) of paragraphs (a), (b) and (c) shall be replaced by the following:

‘(a)

Articles 7(5) and 7(6) of the Convention on social security of 20 April 1960 (legislation applicable to civilians serving the military forces);

| (b) | Articles 5(5) and 5(6) of the Convention on unemployment insurance of 20 April 1960 (legislation applicable to civilians serving the military forces)’; |
| --- | --- |

(b)

Articles 5(5) and 5(6) of the Convention on unemployment insurance of 20 April 1960 (legislation applicable to civilians serving the military forces)’;

| (l) | in part A, point 142 (Spain – Portugal) shall be replaced by the following:
  ‘Article 22 of the General Convention of 11 June 1969 (export of unemployment benefits)’; |
| --- | --- |

(l)

in part A, point 142 (Spain – Portugal) shall be replaced by the following:

‘Article 22 of the General Convention of 11 June 1969 (export of unemployment benefits)’;

| (m) | in part A, point 180 (Ireland – United Kingdom) shall be replaced by the following:
  ‘Article 8 of the Agreement of 14 September 1971 on social security (concerning the transfer and reckoning of certain disability credits)’. |
| --- | --- |

(m)

in part A, point 180 (Ireland – United Kingdom) shall be replaced by the following:

‘Article 8 of the Agreement of 14 September 1971 on social security (concerning the transfer and reckoning of certain disability credits)’.

| (n) | in part A, point 267 (Netherlands – Portugal) shall be replaced by the following:
  ‘Article 31 of the Convention of 19 July 1979 (export of unemployment benefits)’. |
| --- | --- |

(n)

in part A, point 267 (Netherlands – Portugal) shall be replaced by the following:

‘Article 31 of the Convention of 19 July 1979 (export of unemployment benefits)’.

| (o) | in part A, point 298 (Finland – Sweden) the text shall be replaced by the following:
  ‘Article 10 of the Nordic Convention on Social Security of 15 June 1992, concerning coverage of extra travel expenses in case of sickness during stay in another Nordic country making a more expensive return travel to the country of residence necessary’; |
| --- | --- |

(o)

in part A, point 298 (Finland – Sweden) the text shall be replaced by the following:

‘Article 10 of the Nordic Convention on Social Security of 15 June 1992, concerning coverage of extra travel expenses in case of sickness during stay in another Nordic country making a more expensive return travel to the country of residence necessary’;

| (p) | in part B, the following entries shall be deleted:
  2, 3, 5, 6, 7, 8, 9, 13, 16, 17, 19, 22, 23, 24, 48, 50, 51, 52, 53, 54, 58, 61, 62, 64, 67, 68, 69, 71, 72, 73, 74, 75, 79, 82, 83, 85, 88, 89, 90, 111, 112, 113, 114, 118, 121, 122, 124, 127, 128, 129, 130, 131, 132, 136, 139, 140, 142, 145, 146, 147, 148, 149, 153, 156, 157, 159, 162, 163, 164, 165, 169, 172, 173, 175, 178, 179, 180, 184, 187, 188, 190, 193, 194, 195, 237, 238, 240, 243, 244, 245, 265, 267, 270, 271, 272, 274, 277, 278, 279, 288, 289, 290, 298, 299, 300; |
| --- | --- |

(p)

in part B, the following entries shall be deleted:

2, 3, 5, 6, 7, 8, 9, 13, 16, 17, 19, 22, 23, 24, 48, 50, 51, 52, 53, 54, 58, 61, 62, 64, 67, 68, 69, 71, 72, 73, 74, 75, 79, 82, 83, 85, 88, 89, 90, 111, 112, 113, 114, 118, 121, 122, 124, 127, 128, 129, 130, 131, 132, 136, 139, 140, 142, 145, 146, 147, 148, 149, 153, 156, 157, 159, 162, 163, 164, 165, 169, 172, 173, 175, 178, 179, 180, 184, 187, 188, 190, 193, 194, 195, 237, 238, 240, 243, 244, 245, 265, 267, 270, 271, 272, 274, 277, 278, 279, 288, 289, 290, 298, 299, 300;

| 4. | in Annex IV, section B shall be amended as follows:






  (a) | under the heading ‘D. GERMANY’, the text shall be replaced by the following:
  ‘Farmers' old-age insurance (Alterssicherung der Landwirte)’; |
| --- | --- | --- |

4.

in Annex IV, section B shall be amended as follows:

(a)

under the heading ‘D. GERMANY’, the text shall be replaced by the following:

‘Farmers' old-age insurance (Alterssicherung der Landwirte)’;

| (b) | under the heading ‘J. ITALY’, the text shall be replaced by the following:
  ‘Pension insurance schemes for (Assicurazione pensioni per):






  — | medical practitioners (medici) |
| --- | --- | --- |

(b)

under the heading ‘J. ITALY’, the text shall be replaced by the following:

‘Pension insurance schemes for (Assicurazione pensioni per):

—

medical practitioners (medici)

| — | pharmacists (farmacisti) |
| --- | --- |

—

pharmacists (farmacisti)

| — | veterinarians (veterinari) |
| --- | --- |

—

veterinarians (veterinari)

| — | nurses, medical auxiliaries, children's nurses (infermieri, assistenti sanitari, vigilatrici infanzia) |
| --- | --- |

—

nurses, medical auxiliaries, children's nurses (infermieri, assistenti sanitari, vigilatrici infanzia)

| — | psychologists (psicologi) |
| --- | --- |

—

psychologists (psicologi)

| — | engineers and architects (ingegneri ed architetti) |
| --- | --- |

—

engineers and architects (ingegneri ed architetti)

| — | surveyors (geometri) |
| --- | --- |

—

surveyors (geometri)

| — | solicitors (avvocati) |
| --- | --- |

—

solicitors (avvocati)

| — | economists (dottori commercialisti) |
| --- | --- |

—

economists (dottori commercialisti)

| — | accountants and business experts (ragionieri e periti commerciali) |
| --- | --- |

—

accountants and business experts (ragionieri e periti commerciali)

| — | employment consultants (consulenti del lavoro) |
| --- | --- |

—

employment consultants (consulenti del lavoro)

| — | notaries (notai) |
| --- | --- |

—

notaries (notai)

| — | customs agents (spedizionieri doganali) |
| --- | --- |

—

customs agents (spedizionieri doganali)

| — | biologists (biologi) |
| --- | --- |

—

biologists (biologi)

| — | agricultural technicians and scientists (agrotecnici e periti agrari) |
| --- | --- |

—

agricultural technicians and scientists (agrotecnici e periti agrari)

| — | sales representatives (agenti e rappresentanti di commercio) |
| --- | --- |

—

sales representatives (agenti e rappresentanti di commercio)

| — | journalists (giornalisti) |
| --- | --- |

—

journalists (giornalisti)

| — | industrial technicians (periti industriali) |
| --- | --- |

—

industrial technicians (periti industriali)

| — | actuaries, chemists, agronomists, foresters, geologists (attuari, chimici, dottori agronomi, dottori forestali, geologi)’; |
| --- | --- |

—

actuaries, chemists, agronomists, foresters, geologists (attuari, chimici, dottori agronomi, dottori forestali, geologi)’;

| (c) | under the heading ‘R. AUSTRIA’, the text shall be replaced by the following:
  ‘Pension schemes of pension institutions of liberal profession associations (Kammern der Freien Berufe)’; |
| --- | --- |

(c)

under the heading ‘R. AUSTRIA’, the text shall be replaced by the following:

‘Pension schemes of pension institutions of liberal profession associations (Kammern der Freien Berufe)’;

| 5. | Annex VI shall be amended as follows:






  (a) | Under the heading ‘C. DENMARK’, point 6 (b) shall be deleted. |
| --- | --- | --- |

5.

Annex VI shall be amended as follows:

(a)

Under the heading ‘C. DENMARK’, point 6 (b) shall be deleted.

| (b) | under the heading ‘C. DENMARK’, the following text shall be added:






  ‘11. | The temporary benefit for unemployed persons who have been admitted to the “flexible-job” scheme (ledighedsydelse) (Law No 455 of 10 June 1997) is covered by Title III, chapter 6 (Unemployment benefits). As regards unemployed persons going to another Member State, Articles 69 and 71 of this Regulation will be applicable when this Member State has similar employment schemes for the same category of persons.’; |
| --- | --- | --- |

(b)

under the heading ‘C. DENMARK’, the following text shall be added:

‘11.

The temporary benefit for unemployed persons who have been admitted to the “flexible-job” scheme (ledighedsydelse) (Law No 455 of 10 June 1997) is covered by Title III, chapter 6 (Unemployment benefits). As regards unemployed persons going to another Member State, Articles 69 and 71 of this Regulation will be applicable when this Member State has similar employment schemes for the same category of persons.’;

| (c) | under the heading ‘D. GERMANY’, points 3, 11 and 17 shall be deleted and the following points shall be added:






  ‘24. | For the calculation of the theoretical amount referred to in Article 46(2)(a) of the Regulation, in pension schemes for liberal professions, the competent institution shall take as the basis, in respect of each of the years of insurance completed under the legislation of any other Member State, the average annual pension entitlement acquired during the period of membership of the competent institution through the payment of contributions. |
| --- | --- | --- |

(c)

under the heading ‘D. GERMANY’, points 3, 11 and 17 shall be deleted and the following points shall be added:

‘24.

For the calculation of the theoretical amount referred to in Article 46(2)(a) of the Regulation, in pension schemes for liberal professions, the competent institution shall take as the basis, in respect of each of the years of insurance completed under the legislation of any other Member State, the average annual pension entitlement acquired during the period of membership of the competent institution through the payment of contributions.

| 25. | Article 79a of the Regulation shall apply mutatis mutandis to the calculation of orphans' pensions and increases or supplements in respect of children from pension schemes for liberal professions.’; |
| --- | --- |

25.

Article 79a of the Regulation shall apply mutatis mutandis to the calculation of orphans' pensions and increases or supplements in respect of children from pension schemes for liberal professions.’;

| (d) | under the heading ‘H. FRANCE’, the text in point 7 shall be replaced by the following:
  ‘Notwithstanding Articles 73 and 74 of this Regulation, the housing allowances and the supplement for childcare of the parents' choice (early childhood benefit) shall be granted only to persons concerned and to members of their families residing in French territory.’; |
| --- | --- |

(d)

under the heading ‘H. FRANCE’, the text in point 7 shall be replaced by the following:

‘Notwithstanding Articles 73 and 74 of this Regulation, the housing allowances and the supplement for childcare of the parents' choice (early childhood benefit) shall be granted only to persons concerned and to members of their families residing in French territory.’;

| (e) | under the heading ‘I. IRELAND’, point 11 shall be deleted; |
| --- | --- |

(e)

under the heading ‘I. IRELAND’, point 11 shall be deleted;

| (f ) | under the heading ‘R. AUSTRIA’, the following points shall be added:






  ‘8. | For the calculation of the theoretical amount in accordance with Article 46(2)(a) of this Regulation concerning benefits or parts of benefits of a pension scheme of the liberal profession associations (Kammern der Freien Berufe), financed exclusively by the funded scheme method or based on a pension account system, the competent institution shall take into account, in respect of each month of insurance completed under the legislation of any other Member State, capital in proportion to the capital actually accrued in the pensions scheme concerned, or considered to have accrued in the pension account scheme, and the number of months of the insurance periods in the pension scheme concerned. |
| --- | --- | --- |

(f )

under the heading ‘R. AUSTRIA’, the following points shall be added:

‘8.

For the calculation of the theoretical amount in accordance with Article 46(2)(a) of this Regulation concerning benefits or parts of benefits of a pension scheme of the liberal profession associations (Kammern der Freien Berufe), financed exclusively by the funded scheme method or based on a pension account system, the competent institution shall take into account, in respect of each month of insurance completed under the legislation of any other Member State, capital in proportion to the capital actually accrued in the pensions scheme concerned, or considered to have accrued in the pension account scheme, and the number of months of the insurance periods in the pension scheme concerned.

| 9. | Article 79a of the Regulation shall apply mutatis mutandis to the calculation of orphans' pensions and increases or supplements to pensions in respect of children from a pension scheme of the liberal profession associations (Kammern der Freien Berufe).’; |
| --- | --- |

9.

Article 79a of the Regulation shall apply mutatis mutandis to the calculation of orphans' pensions and increases or supplements to pensions in respect of children from a pension scheme of the liberal profession associations (Kammern der Freien Berufe).’;

| (g ) | under the heading ‘Y. UNITED KINGDOM’, the text shall be amended as follows:






  (i) | in point 2(b), points (i) and (ii) shall be replaced by the following:






  ‘(i) | a spouse or former spouse where a claim is made by:






  — | a married woman, or |
| --- | --- | --- | --- | --- |

(g )

under the heading ‘Y. UNITED KINGDOM’, the text shall be amended as follows:

(i)

in point 2(b), points (i) and (ii) shall be replaced by the following:

‘(i)

a spouse or former spouse where a claim is made by:

—

a married woman, or

| — | a person whose marriage has terminated otherwise than by the death of the spouse; or |
| --- | --- |

—

a person whose marriage has terminated otherwise than by the death of the spouse; or

| (ii) | a former spouse, where a claim is made by:






  — | a widower who immediately before pensionable age is not entitled to widowed parent's allowance, or |
| --- | --- | --- |

(ii)

a former spouse, where a claim is made by:

—

a widower who immediately before pensionable age is not entitled to widowed parent's allowance, or

| — | a widow who immediately before pensionable age is not entitled to widowed mother's allowance, widowed parent's allowance or widow's pension, or who is only entitled to an age-related widow's pension calculated pursuant to Article 46(2) of the Regulation, and for this purpose “age-related widow's pension” means a widow's pension payable at a reduced rate in accordance with section 39(4) of the Social Security Contributions and Benefits Act 1992.’; |
| --- | --- |

—

a widow who immediately before pensionable age is not entitled to widowed mother's allowance, widowed parent's allowance or widow's pension, or who is only entitled to an age-related widow's pension calculated pursuant to Article 46(2) of the Regulation, and for this purpose “age-related widow's pension” means a widow's pension payable at a reduced rate in accordance with section 39(4) of the Social Security Contributions and Benefits Act 1992.’;

| (ii) | point 22 shall be deleted. |
| --- | --- |

(ii)

point 22 shall be deleted.

---

ANNEX II

The Annexes to Regulation (EEC) No 574/72 are hereby amended as follows:

| 1. | in Annex 2, under the heading ‘X. SWEDEN’, point 2 shall be replaced by the following:






  ‘ 2. | For unemployment benefits: Inspektionen för arbetslöshetsförsäkringen (Swedish Unemployment Insurance Board)’; |
| --- | --- | --- |

1.

in Annex 2, under the heading ‘X. SWEDEN’, point 2 shall be replaced by the following:

‘ 2.

For unemployment benefits: Inspektionen för arbetslöshetsförsäkringen (Swedish Unemployment Insurance Board)’;

| 2. | in Annex 4, under the heading ‘D. GERMANY’, the following point shall be added:






  ‘9. | Pension schemes for liberal professions:
  Arbeitsgemeinschaft Berufsständischer Versorgungseinrichtungen, Köln’; |
| --- | --- | --- |

2.

in Annex 4, under the heading ‘D. GERMANY’, the following point shall be added:

‘9.

Pension schemes for liberal professions:

Arbeitsgemeinschaft Berufsständischer Versorgungseinrichtungen, Köln’;

| 3. | In Annex 10, under the heading ‘C. DENMARK’, point 1 first indent shall be replaced by the following:






  ‘1. | For the purposes of applying Articles 10c, 11(1), 11a(1), 12a, 13(2) and (3), 14(1), (2) and (3) of the implementing Regulation: Den Sociale Sikringsstyrelse, København’; |
| --- | --- | --- |

3.

In Annex 10, under the heading ‘C. DENMARK’, point 1 first indent shall be replaced by the following:

‘1.

For the purposes of applying Articles 10c, 11(1), 11a(1), 12a, 13(2) and (3), 14(1), (2) and (3) of the implementing Regulation: Den Sociale Sikringsstyrelse, København’;

| 4. | in Annex 10, under the heading ‘R. AUSTRIA’, point 1 shall be replaced by the following:






  ‘1. | For the application of Article 14(1)(b), Article 14a(1)(b) and Article 17 of the Regulation:
  Bundesminister für soziale Sicherheit, Generationen und Konsumentenschutz (Federal Minister for Social Security, Generations and Consumer Protection), in agreement with the respective public administration with regard to special schemes for civil servants and in agreement with the respective pension institution with regard to pension schemes of the liberal profession associations (Kammern der Freien Berufe)’; |
| --- | --- | --- |

4.

in Annex 10, under the heading ‘R. AUSTRIA’, point 1 shall be replaced by the following:

‘1.

For the application of Article 14(1)(b), Article 14a(1)(b) and Article 17 of the Regulation:

Bundesminister für soziale Sicherheit, Generationen und Konsumentenschutz (Federal Minister for Social Security, Generations and Consumer Protection), in agreement with the respective public administration with regard to special schemes for civil servants and in agreement with the respective pension institution with regard to pension schemes of the liberal profession associations (Kammern der Freien Berufe)’;

| 5. | Annex 11 shall be deleted. |
| --- | --- |

5.

Annex 11 shall be deleted.

---

STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

On 27 August 2003, the Commission submitted to the Council a proposal for a Regulation of the European Parliament and of the Council amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (miscellaneous amendments).

The Economic and Social Committee delivered its opinion on 10 December 2003.

Acting in accordance with Article 251 of the Treaty, the European Parliament delivered its first reading opinion on 11 March 2004.

The Commission subsequently presented on 30 April 2004 its amended proposal, wholly accepting the four amendments adopted by the European Parliament.

The Council accepted three of these amendments in full and one as regards the substance.

In accordance with Article 251(2) of the EC Treaty, the Council adopted its common position on 15 November 2004.

II.   OBJECTIVE

The purpose of the Regulation is to update Regulations (EEC) No 1408/71 (1) and No 574/72 (2) to take account of changes in national legislation and to clarify the legal situation with regard to certain articles of these regulations. It takes account of recent developments in the case-law of the European Court of Justice, in particular those rulings concerning special non-contributory cash benefits, which are non-exportable if they meet specific criteria and are entered in Annex IIa of Regulation (EEC) No 1408/71. The Regulation also takes account of rulings concerning the relationship between the Regulation and the provisions of bilateral social security agreements, which will continue to apply if they meet the requirements for inclusion in Annex III of the Regulation.

III.   ANALYSIS OF THE COMMON POSITION

1.   European Parliament amendments

The European Parliament adopted four amendments to the Commission proposal.

All of these amendments were incorporated into the amended Commission proposal as they stood.

2.   Council's position on the European Parliament's amendments

The Council could accept in full the following three amendments:

| — | Amendment 1 which seeks to insert into the list of special non-contributory cash benefits, as contained in Annex IIa to Regulation (EEC) No 1408/71, a benefit provided by Spanish legislation: ‘mobility allowance to cover transport costs’. The Council could accept this amendment since this benefit fully meets the revised criteria laid down in the common position (i.e., it must be ‘intended to provide solely specific protection for the disabled, closely linked to the said person's social environment in the Member State concerned’); |
| --- | --- |

—

Amendment 1 which seeks to insert into the list of special non-contributory cash benefits, as contained in Annex IIa to Regulation (EEC) No 1408/71, a benefit provided by Spanish legislation: ‘mobility allowance to cover transport costs’. The Council could accept this amendment since this benefit fully meets the revised criteria laid down in the common position (i.e., it must be ‘intended to provide solely specific protection for the disabled, closely linked to the said person's social environment in the Member State concerned’);

| — | Amendment 2 which seeks to insert into the list of special non-contributory cash benefits, as contained in Annex IIa of Regulation (EEC) No 1408/71, a benefit provided for by Irish legislation: ‘mobility allowance’. The Council could again accept this amendment as it also fully meets the revised criteria laid down in the common position; |
| --- | --- |

—

Amendment 2 which seeks to insert into the list of special non-contributory cash benefits, as contained in Annex IIa of Regulation (EEC) No 1408/71, a benefit provided for by Irish legislation: ‘mobility allowance’. The Council could again accept this amendment as it also fully meets the revised criteria laid down in the common position;

| — | Amendment 3 which seeks to insert in the list of special non-contributory benefits, as contained in Annex IIa to Regulation (EEC) No 1408/71, a benefit provided by UK legislation: ‘income support’. The Council also accepted this amendment as it fully meets the revised criteria in the common position. |
| --- | --- |

—

Amendment 3 which seeks to insert in the list of special non-contributory benefits, as contained in Annex IIa to Regulation (EEC) No 1408/71, a benefit provided by UK legislation: ‘income support’. The Council also accepted this amendment as it fully meets the revised criteria in the common position.

The Council also accepted, subject to redrafting, the principle underlying an oral amendment of the Parliament which seeks to invite Member States to take measures to ensure that the prejudicial effects of certain amendments made to the list of benefits in Annex IIa (in particular when a benefit becomes non-exportable due to its inclusion in the Annex) are mitigated, with regard to persons who previously received these benefits, through transitional arrangements or bilateral solutions (see recital 6).

IV.   ARTICLE 1(5) OF THE COMMISSION PROPOSAL

Article 1(5) of the Commission proposal aims to amend Article 33(1) of Regulation (EEC) No 1408/71 to specify that the deduction of sickness and maternity contributions may be carried out on all pensions paid to pensioners if national legislation so provides.

The Council has decided not to incorporate this part of the Commission proposal into its common position while awaiting the entry into force of Regulation (EC) No 883/2004 on the coordination of social security systems.

The Council accepts the need for balance between contributions deducted and the cost of benefits paid, as envisaged by Article 33(1) of Regulation (EEC) No 1408/71. The possibility of deducting contributions on the basis of all the pensions paid to a pensioner derives from this principle. However, in the context of the process of reform and simplification of Regulation (EEC) No 1408/71, and recalling the agreement that the modalities of application of Article 5 (assimilation of facts) in relation to Article 30 (contribution by pensioners) of the simplified Regulation (EC) No 883/2004 would be provided for in the implementing Regulation, the Council considers that it would be premature to take such a measure at the present time. However, the Council also considers that it must be clear that it is not possible to levy on the basis of national legislation more contributions than would be the case if the person concerned was receiving all the pensions under the legislation of that Member State.

V.   SPECIFIC ISSUES RELATING TO ANNEX IIA OF COUNCIL REGULATION (EEC) NO 1408/71

The Commission proposal sought, inter alia, to amend Article 4(2a) and Annex IIa of Council Regulation (EEC) No 1408/71 which relate to special non-contributory benefits, in the light of recent jurisprudence of the European Court of Justice with regard to the classification of 'special non-contributory benefits', namely the Judgments of 5 March 1998 in case C-160/96, Molenaar v Allgemeine Ortskrankenkasse Baden-Wurttemberg (ECR 1998 I-843), 8 March 2001 in case C-215/99, Friedrich Jauch v Pensionsversicherungsanstalt der Arbeiter (ECR 2001 I 1901) and the judgment of 31 May 2001 in case C-43/99, Ghislain Leclere, Alina Deaconescu and Caisse nationale des prestations familiales (ECR 2001 I-4265).

Special non-contributory benefits can be defined as being half-way between ‘conventional’ social security benefits and social assistance. Annex IIa contains the list of such benefits which are granted to persons exclusively in the territory of the Member State in which they reside, under the terms of Article 10a of Regulation (EEC) No 1408/71 (and are therefore not ‘exportable’ when such persons move to another Member State).

In order to facilitate the free movement of persons within the European Union, the Commission proposed that this list should be streamlined and that a number of benefits currently listed in Annex IIa of Council Regulation (EEC) No 1408/71 should be removed from the list in accordance with the Court of Justice's jurisprudence.

The Council unanimously agreed with the revised criteria for classification of the entries in this Annex as set out in the amended version of Article 4(2a) of the Regulation, detailed in the common position. These criteria are identical to those included in the text of Article 70 of Regulation (EC) No 883/2004 on the coordination of social security systems for the purposes of the corresponding Annex in that Regulation (Annex X). To assist in the objective application of these criteria, it was proposed that the application of Article 4(2a) should aim to ensure that:

| — | benefits of the same type which share identical or equivalent features should be categorised in the same way to ensure consistent and coherent treatment; |
| --- | --- |

—

benefits of the same type which share identical or equivalent features should be categorised in the same way to ensure consistent and coherent treatment;

| — | if a benefit is not regarded as a ‘special’ non-contributory benefit, the appropriate system of coordination under Article 4(1), if any, should be specified. |
| --- | --- |

—

if a benefit is not regarded as a ‘special’ non-contributory benefit, the appropriate system of coordination under Article 4(1), if any, should be specified.

The Council also sought to agree criteria for the inclusion of entries in Annex IIa and to identify some key characteristics of disability schemes which would assist in the classification of such schemes as providing ‘solely specific protection for the disabled’. On the basis of the above approach, unanimous agreement could be reached on classifying the vast majority of Annex IIa entries, resulting in a substantial streamlining of the Annex.

However, unanimous agreement could not be reached on the Commission's proposal to remove certain specific entries from Annex IIa. The Member States concerned did not accept that the criteria proposed should be used to define benefits which were appropriate for listing in Annex IIa. These Member States wanted to maintain their entries in the Annex as they regarded them as fulfilling the requirements of Article 4(2a) and they considered that current European Court of Justice jurisprudence did not justify their removal from the Annex.

In order to allow for the adoption of the Regulation in view of the significant progress made overall, the Council agreed to maintain these entries in Annex IIa pending future European Court of Justice jurisprudence which could clarify the relevant criteria and subsequently entail revision of the Annex.

In this context, the Commission made a statement to the Council's minutes stressing that the list of entries might need to be revised on the basis of new jurisprudence from the European Court of Justice, in particular in relation to the benefits concerned. The Commission stated that it reserved the right to seize the Court and to present a proposal, if necessary, to revise the list of entries in Annex IIa, based on the findings of the Court.

The Council also agreed that the issue of coordination of benefits for the disabled including, in particular, those which are removed from Annex IIa of Regulation (EEC) No 1408/71, either in application of European Court of Justice jurisprudence or under this Regulation, should be further considered, taking into account the objectives of Article 42 of the Treaty, with a view to specific proposals being submitted before the end of 2005.

VI.   CONCLUSION

The Council considers that its common position both fulfils the key aims of the Commission's original proposal and, by incorporating the amendments mentioned in Section III of this statement, to a large extent takes into account the opinion of the European Parliament in first reading.

---

(1)  Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community.

(2)  Council Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71.

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| 15.2.2005 | EN | Official Journal of the European Union | CE 38/36 |
| --- | --- | --- | --- |

15.2.2005

EN

Official Journal of the European Union

CE 38/36

---

COMMON POSITION (EC) No 8/2005

adopted by the Council on 29 November 2004

with a view to adopting Regulation (EC) No .../2005 of the European Parliament and of the Council of ... amending Council Regulation (EEC) No 2913/92 establishing the Community Customs Code

(2005/C 38 E/03)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 26, 95, 133 and 135 thereof,

Having regard to the proposal from the Commission,

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

Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),

Whereas:

| (1) | Regulation (EEC) No 2913/92 (3) lays down the rules for the customs treatment of goods that are imported or to be exported. |
| --- | --- |

(1)

Regulation (EEC) No 2913/92 (3) lays down the rules for the customs treatment of goods that are imported or to be exported.

| (2) | It is necessary to establish an equivalent level of protection in customs controls for goods brought into or out of the customs territory of the Community. In order to achieve this objective, it is necessary to establish an equivalent level of customs controls in the Community and to ensure a harmonised application of customs controls by the Member States, which have principal responsibility for applying these controls. Such controls should be based upon commonly agreed standards and risk criteria for the selection of goods and economic operators in order to minimise the risks to the Community and its citizens and to the Community's trading partners. Member States and the Commission should therefore introduce a Community-wide risk management framework to support a common approach so that priorities are set effectively and resources are allocated efficiently with the aim of maintaining a proper balance between customs controls and the facilitation of legitimate trade. Such a framework should also provide for common criteria and harmonised requirements for authorised economic operators and ensure a harmonised application of such criteria and requirements. The establishment of a risk management framework common to all Member States should not prevent the Member States from controlling goods by spot-checks. |
| --- | --- |

(2)

It is necessary to establish an equivalent level of protection in customs controls for goods brought into or out of the customs territory of the Community. In order to achieve this objective, it is necessary to establish an equivalent level of customs controls in the Community and to ensure a harmonised application of customs controls by the Member States, which have principal responsibility for applying these controls. Such controls should be based upon commonly agreed standards and risk criteria for the selection of goods and economic operators in order to minimise the risks to the Community and its citizens and to the Community's trading partners. Member States and the Commission should therefore introduce a Community-wide risk management framework to support a common approach so that priorities are set effectively and resources are allocated efficiently with the aim of maintaining a proper balance between customs controls and the facilitation of legitimate trade. Such a framework should also provide for common criteria and harmonised requirements for authorised economic operators and ensure a harmonised application of such criteria and requirements. The establishment of a risk management framework common to all Member States should not prevent the Member States from controlling goods by spot-checks.

| (3) | Member States should grant the status of authorised economic operator to any economic operator that meets common criteria relating to the operators' control systems, financial solvency and compliance record. The status of authorised economic operator, once granted by one Member State, should be recognised by the other Member States, but does not confer the right to benefit automatically in the other Member States from simplifications provided for in the customs rules. However, the other Member States should allow the use of simplifications by authorised economic operators provided they meet all the specific requirements for use of the particular simplifications. In considering a request to use simplifications, the other Member States need not repeat the evaluation of the operator's control systems, financial solvency or compliance record, which will already have been completed by the Member State that granted the operator the status of authorised economic operator, but should ensure that any other specific requirements for use of the particular simplification are met. The use of simplifications in other Member States may also be coordinated by agreement between the customs authorities concerned. |
| --- | --- |

(3)

Member States should grant the status of authorised economic operator to any economic operator that meets common criteria relating to the operators' control systems, financial solvency and compliance record. The status of authorised economic operator, once granted by one Member State, should be recognised by the other Member States, but does not confer the right to benefit automatically in the other Member States from simplifications provided for in the customs rules. However, the other Member States should allow the use of simplifications by authorised economic operators provided they meet all the specific requirements for use of the particular simplifications. In considering a request to use simplifications, the other Member States need not repeat the evaluation of the operator's control systems, financial solvency or compliance record, which will already have been completed by the Member State that granted the operator the status of authorised economic operator, but should ensure that any other specific requirements for use of the particular simplification are met. The use of simplifications in other Member States may also be coordinated by agreement between the customs authorities concerned.

| (4) | Simplifications under the customs rules should continue to be without prejudice to customs controls as defined within the Community Customs Code, notably relating to safety and security. Such controls are the responsibility of the customs authorities and, while the status of authorised economic operator should be recognised by those authorities as a factor during risk analysis and in the granting of any facilitation to the economic operator with regard to controls relating to safety and security, the right to control should remain. |
| --- | --- |

(4)

Simplifications under the customs rules should continue to be without prejudice to customs controls as defined within the Community Customs Code, notably relating to safety and security. Such controls are the responsibility of the customs authorities and, while the status of authorised economic operator should be recognised by those authorities as a factor during risk analysis and in the granting of any facilitation to the economic operator with regard to controls relating to safety and security, the right to control should remain.

| (5) | Risk-related information on import and export goods should be shared between the competent authorities of the Member States and the Commission. To this end, a common, secure system should be set up, enabling the competent authorities to access, transfer and exchange this information in a timely and effective manner. Such information may also be shared with third countries where an international agreement provides for this. |
| --- | --- |

(5)

Risk-related information on import and export goods should be shared between the competent authorities of the Member States and the Commission. To this end, a common, secure system should be set up, enabling the competent authorities to access, transfer and exchange this information in a timely and effective manner. Such information may also be shared with third countries where an international agreement provides for this.

| (6) | The conditions under which information provided by economic operators to customs may be disclosed to other authorities in the same Member State, other Member States, to the Commission, or to authorities in third countries should be specified. For this purpose, it should be clearly indicated that 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 (4) and 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 (5) apply to the processing of personal data by the competent authorities as well as by any other authority receiving data pursuant to the Community Customs Code. |
| --- | --- |

(6)

The conditions under which information provided by economic operators to customs may be disclosed to other authorities in the same Member State, other Member States, to the Commission, or to authorities in third countries should be specified. For this purpose, it should be clearly indicated that 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 (4) and 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 (5) apply to the processing of personal data by the competent authorities as well as by any other authority receiving data pursuant to the Community Customs Code.

| (7) | In order to allow for appropriate risk-based controls, it is necessary to establish the requirement of pre-arrival or pre-departure information for all goods brought into or out of the customs territory of the Community, except for goods passing through by air or ship without a stop within this territory. Such information should be available before the goods are brought into or out of the customs territory of the Community. Different time frames and rules may be set according to the type of goods, of transport or of economic operator or where international agreements provide for special security arrangements. In order to avoid security loopholes, this requirement should also be introduced with regard to goods brought into or out of a free zone. |
| --- | --- |

(7)

In order to allow for appropriate risk-based controls, it is necessary to establish the requirement of pre-arrival or pre-departure information for all goods brought into or out of the customs territory of the Community, except for goods passing through by air or ship without a stop within this territory. Such information should be available before the goods are brought into or out of the customs territory of the Community. Different time frames and rules may be set according to the type of goods, of transport or of economic operator or where international agreements provide for special security arrangements. In order to avoid security loopholes, this requirement should also be introduced with regard to goods brought into or out of a free zone.

| (8) | Regulation (EEC) No 2913/92 should therefore be amended accordingly, |
| --- | --- |

(8)

Regulation (EEC) No 2913/92 should therefore be amended accordingly,

HAVE ADOPTED THIS REGULATION

Article 1

Regulation (EEC) No 2913/92 is hereby amended as follows:

| 1. | Article 4 shall be amended as follows:






  — | the following points shall be inserted:







  ‘4a. | “Customs office of entry” means the customs office designated by the customs authorities in accordance with the customs rules to which goods brought into the customs territory of the Community must be conveyed without delay and at which they will be subject to appropriate risk-based entry controls; |
| --- | --- | --- | --- |

1.

Article 4 shall be amended as follows:

—

the following points shall be inserted:

‘4a.

“Customs office of entry” means the customs office designated by the customs authorities in accordance with the customs rules to which goods brought into the customs territory of the Community must be conveyed without delay and at which they will be subject to appropriate risk-based entry controls;

| 4b. | “Customs office of import” means the customs office designated by the customs authorities in accordance with the customs rules where the formalities for assigning goods brought into the customs territory of the Community to a customs-approved treatment or use, including appropriate risk-based controls, are to be carried out; |
| --- | --- |

4b.

“Customs office of import” means the customs office designated by the customs authorities in accordance with the customs rules where the formalities for assigning goods brought into the customs territory of the Community to a customs-approved treatment or use, including appropriate risk-based controls, are to be carried out;

| 4c. | “Customs office of export” means the customs office designated by the customs authorities in accordance with the customs rules where the formalities for assigning goods leaving the customs territory of the Community to a customs-approved treatment or use, including appropriate risk-based controls are to be completed; |
| --- | --- |

4c.

“Customs office of export” means the customs office designated by the customs authorities in accordance with the customs rules where the formalities for assigning goods leaving the customs territory of the Community to a customs-approved treatment or use, including appropriate risk-based controls are to be completed;

| 4d. | “Customs office of exit” means the customs office designated by the customs authorities in accordance with the customs rules to which goods must be presented before they leave the customs territory of the Community and at which they will be subject to customs controls relating to the completion of exit formalities, and appropriate risk-based controls.’; |
| --- | --- |

4d.

“Customs office of exit” means the customs office designated by the customs authorities in accordance with the customs rules to which goods must be presented before they leave the customs territory of the Community and at which they will be subject to customs controls relating to the completion of exit formalities, and appropriate risk-based controls.’;

| — | point 14 shall be replaced by the following:







  ‘14. | “Customs controls” means specific acts performed by the customs authorities in order to ensure the correct application of customs rules and other legislation governing the entry, exit, transit, transfer and end-use of goods moved between the customs territory of the Community and third countries and the presence of goods that do not have Community status; such acts may include examining goods, verifying declaration data and the existence and authenticity of electronic or written documents, examining the accounts of undertakings and other records, inspecting means of transport, inspecting luggage and other goods carried by or on persons and carrying out official inquiries and other similar acts.’; |
| --- | --- | --- |

—

point 14 shall be replaced by the following:

‘14.

“Customs controls” means specific acts performed by the customs authorities in order to ensure the correct application of customs rules and other legislation governing the entry, exit, transit, transfer and end-use of goods moved between the customs territory of the Community and third countries and the presence of goods that do not have Community status; such acts may include examining goods, verifying declaration data and the existence and authenticity of electronic or written documents, examining the accounts of undertakings and other records, inspecting means of transport, inspecting luggage and other goods carried by or on persons and carrying out official inquiries and other similar acts.’;

| — | the following points shall be added







  ‘25. | “Risk” means the likelihood of an event occurring, in connection with the entry, exit, transit, transfer and end-use of goods moved between the customs territory of the Community and third countries and the presence of goods that do not have Community status, which






  — | prevents the correct application of Community or national measures or |
| --- | --- | --- | --- |

—

the following points shall be added

‘25.

“Risk” means the likelihood of an event occurring, in connection with the entry, exit, transit, transfer and end-use of goods moved between the customs territory of the Community and third countries and the presence of goods that do not have Community status, which

—

prevents the correct application of Community or national measures or

| — | compromises the financial interests of the Community and its Member States or |
| --- | --- |

—

compromises the financial interests of the Community and its Member States or

| — | poses a threat to the Community's security and safety, to public health, to the environment or to consumers. |
| --- | --- |

—

poses a threat to the Community's security and safety, to public health, to the environment or to consumers.

| 26. | “Risk management” means the systematic identification of risk and implementation of all measures necessary for limiting exposure to risk. This includes activities such as collecting data and information, analysing and assessing risk, prescribing and taking action and regular monitoring and review of the process and its outcomes, based on international, Community and national sources and strategies.’; |
| --- | --- |

26.

“Risk management” means the systematic identification of risk and implementation of all measures necessary for limiting exposure to risk. This includes activities such as collecting data and information, analysing and assessing risk, prescribing and taking action and regular monitoring and review of the process and its outcomes, based on international, Community and national sources and strategies.’;

| 2. | the following section and Article shall be inserted:
  ‘Section 1A
  Authorised economic operators
  Article 5a
  1.   Customs authorities, if necessary following consultation with other competent authorities, shall grant, subject to the criteria provided for in paragraph 2, the status of “authorised economic operator” to any economic operator established in the customs territory of the Community.
  An authorised economic operator shall benefit from facilitations with regard to customs controls relating to security and safety and/or from simplifications provided for under the customs rules.
  The status of authorised economic operator shall, subject to the rules and conditions laid down in paragraph 2, be recognised by the customs authorities in all Member States, without prejudice to customs controls. Customs authorities shall, on the basis of the recognition of the status of authorised economic operator and provided that the requirements relating to a specific type of simplification provided for in Community customs legislation are fulfilled, authorise the operator to benefit from that simplification.
  2.   The criteria for granting the status of authorised economic operator shall include:






  — | an appropriate record of compliance with customs requirements |
| --- | --- | --- |

2.

the following section and Article shall be inserted:

‘Section 1A

Authorised economic operators

Article 5a

1.   Customs authorities, if necessary following consultation with other competent authorities, shall grant, subject to the criteria provided for in paragraph 2, the status of “authorised economic operator” to any economic operator established in the customs territory of the Community.

An authorised economic operator shall benefit from facilitations with regard to customs controls relating to security and safety and/or from simplifications provided for under the customs rules.

The status of authorised economic operator shall, subject to the rules and conditions laid down in paragraph 2, be recognised by the customs authorities in all Member States, without prejudice to customs controls. Customs authorities shall, on the basis of the recognition of the status of authorised economic operator and provided that the requirements relating to a specific type of simplification provided for in Community customs legislation are fulfilled, authorise the operator to benefit from that simplification.

2.   The criteria for granting the status of authorised economic operator shall include:

—

an appropriate record of compliance with customs requirements

| — | a satisfactory system of managing commercial and, where appropriate, transport records, which allows appropriate customs controls |
| --- | --- |

—

a satisfactory system of managing commercial and, where appropriate, transport records, which allows appropriate customs controls

| — | where appropriate, proven financial solvency and |
| --- | --- |

—

where appropriate, proven financial solvency and

| — | where applicable, appropriate security and safety standards. |
| --- | --- |

—

where applicable, appropriate security and safety standards.

The committee procedure shall be used to determine the rules:

| — | for granting the status of authorised economic operator |
| --- | --- |

—

for granting the status of authorised economic operator

| — | for granting authorisations for the use of simplifications |
| --- | --- |

—

for granting authorisations for the use of simplifications

| — | laying down which customs authority is competent to grant such status and authorisations |
| --- | --- |

—

laying down which customs authority is competent to grant such status and authorisations

| — | for the type and extent of facilitations that may be granted in respect of customs controls relating to security and safety, taking into account the rules for common risk management |
| --- | --- |

—

for the type and extent of facilitations that may be granted in respect of customs controls relating to security and safety, taking into account the rules for common risk management

| — | for consultation with, and provision of information to, other customs authorities; |
| --- | --- |

—

for consultation with, and provision of information to, other customs authorities;

and the conditions under which:

| — | an authorisation may be limited to one or more Member States |
| --- | --- |

—

an authorisation may be limited to one or more Member States

| — | the status of authorised economic operator may be suspended or withdrawn; and |
| --- | --- |

—

the status of authorised economic operator may be suspended or withdrawn; and

| — | the requirement of being established in the Community may be waived for specific categories of authorised economic operator, taking into account, in particular, international agreements.’; |
| --- | --- |

—

the requirement of being established in the Community may be waived for specific categories of authorised economic operator, taking into account, in particular, international agreements.’;

| 3. | Article 13 shall be replaced by the following:
  ‘Article 13
  1.   Customs authorities may, in accordance with the conditions laid down by the provisions in force, carry out all the controls they deem necessary to ensure that customs rules and other legislation governing the entry, exit, transit, transfer and end-use of goods moved between the customs territory of the Community and third countries and the presence of goods that do not have Community status are correctly applied. Customs controls for the purpose of the correct application of Community legislation may be carried out in a third country where an international agreement provides for this.
  2.   Customs controls, other than spot-checks, shall be based on risk analysis using automated data-processing techniques, with the purpose of identifying and quantifying the risks and developing the necessary measures to assess the risks, on the basis of criteria developed at national, Community and, where available, international level.
  The committee procedure shall be used for determining a common risk management framework, and for establishing common criteria and priority control areas.
  Member States, in cooperation with the Commission, shall establish a computer system for the implementation of risk management.
  3.   Where controls are performed by authorities other than the customs authorities, such controls shall be performed in close coordination with the customs authorities, wherever possible at the same time and place.
  4.   In the context of the controls provided for in this Article, customs and other competent authorities, such as veterinary and police authorities, may communicate data received, in connection with the entry, exit, transit, transfer and end-use of goods moved between the customs territory of the Community and third countries and the presence of goods that do not have Community status, between themselves and to the customs authorities of the Member States and to the Commission where this is required for the purposes of minimising risk.
  Communication of confidential data to the customs administrations and other bodies (e.g. security agencies) of third countries shall be allowed only in the framework of an international agreement and provided that the data protection provisions in force, in particular 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 (6) and 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 (7) are respected.; |
| --- | --- |

3.

Article 13 shall be replaced by the following:

‘Article 13

1.   Customs authorities may, in accordance with the conditions laid down by the provisions in force, carry out all the controls they deem necessary to ensure that customs rules and other legislation governing the entry, exit, transit, transfer and end-use of goods moved between the customs territory of the Community and third countries and the presence of goods that do not have Community status are correctly applied. Customs controls for the purpose of the correct application of Community legislation may be carried out in a third country where an international agreement provides for this.

2.   Customs controls, other than spot-checks, shall be based on risk analysis using automated data-processing techniques, with the purpose of identifying and quantifying the risks and developing the necessary measures to assess the risks, on the basis of criteria developed at national, Community and, where available, international level.

The committee procedure shall be used for determining a common risk management framework, and for establishing common criteria and priority control areas.

Member States, in cooperation with the Commission, shall establish a computer system for the implementation of risk management.

3.   Where controls are performed by authorities other than the customs authorities, such controls shall be performed in close coordination with the customs authorities, wherever possible at the same time and place.

4.   In the context of the controls provided for in this Article, customs and other competent authorities, such as veterinary and police authorities, may communicate data received, in connection with the entry, exit, transit, transfer and end-use of goods moved between the customs territory of the Community and third countries and the presence of goods that do not have Community status, between themselves and to the customs authorities of the Member States and to the Commission where this is required for the purposes of minimising risk.

Communication of confidential data to the customs administrations and other bodies (e.g. security agencies) of third countries shall be allowed only in the framework of an international agreement and provided that the data protection provisions in force, in particular 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 (6) and 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 (7) are respected.;

6

7

| 4. | Article 15 shall be replaced by the following:
  ‘Article 15

  All information which is by nature confidential or which is provided on a confidential basis shall be covered by the duty of professional secrecy. It shall not be disclosed by the competent authorities without the express permission of the person or authority providing it. The communication of information shall, however, be permitted where the competent authorities are obliged to do so pursuant to the provisions in force, particularly in connection with legal proceedings. Any disclosure or communication of information shall fully comply with prevailing data protection provisions, in particular Directive 95/46/EC and Regulation (EC) No 45/2001.’; |
| --- | --- |

4.

Article 15 shall be replaced by the following:

‘Article 15

Article 15

All information which is by nature confidential or which is provided on a confidential basis shall be covered by the duty of professional secrecy. It shall not be disclosed by the competent authorities without the express permission of the person or authority providing it. The communication of information shall, however, be permitted where the competent authorities are obliged to do so pursuant to the provisions in force, particularly in connection with legal proceedings. Any disclosure or communication of information shall fully comply with prevailing data protection provisions, in particular Directive 95/46/EC and Regulation (EC) No 45/2001.’;

| 5. | In Article 16 'control by the customs authorities' shall be replaced by ‘customs controls’; |
| --- | --- |

5.

In Article 16 'control by the customs authorities' shall be replaced by ‘customs controls’;

| 6. | The following Articles shall be inserted under Chapter 1 of Title III:
  ‘Article 36a

  1.   Goods brought into the customs territory of the Community shall be covered by a summary declaration, with the exception of goods carried on means of transport only passing through the territorial waters or the airspace of the customs territory without a stop within this territory.
  2.   The summary declaration shall be lodged at the customs office of entry.
  Customs authorities may allow the summary declaration to be lodged at another customs office, provided that this office immediately communicates or makes available electronically the necessary particulars to the customs office of entry.
  Customs authorities may accept, instead of the lodging of the summary declaration, the lodging of a notification and access to the summary declaration data in the economic operator's computer system.
  3.   The summary declaration shall be lodged before the goods are brought into the customs territory of the Community.
  4.   The committee procedure shall be used to establish:






  — | the time limit by which the summary declaration shall be lodged before the goods are brought into the customs territory of the Community |
| --- | --- | --- |

6.

The following Articles shall be inserted under Chapter 1 of Title III:

‘Article 36a

Article 36a

1.   Goods brought into the customs territory of the Community shall be covered by a summary declaration, with the exception of goods carried on means of transport only passing through the territorial waters or the airspace of the customs territory without a stop within this territory.

2.   The summary declaration shall be lodged at the customs office of entry.

Customs authorities may allow the summary declaration to be lodged at another customs office, provided that this office immediately communicates or makes available electronically the necessary particulars to the customs office of entry.

Customs authorities may accept, instead of the lodging of the summary declaration, the lodging of a notification and access to the summary declaration data in the economic operator's computer system.

3.   The summary declaration shall be lodged before the goods are brought into the customs territory of the Community.

4.   The committee procedure shall be used to establish:

—

the time limit by which the summary declaration shall be lodged before the goods are brought into the customs territory of the Community

| — | the rules for exceptions from, and variations to, the time limit referred to in the first indent and |
| --- | --- |

—

the rules for exceptions from, and variations to, the time limit referred to in the first indent and

| — | the conditions under which the requirement for a summary declaration may be waived or adapted, |
| --- | --- |

—

the conditions under which the requirement for a summary declaration may be waived or adapted,

in accordance with the specific circumstances and for particular types of goods traffic, modes of transport and economic operators and where international agreements provide for special security arrangements.

Article 36b

1.   The committee procedure shall be used to establish a common data set and format for the summary declaration, containing the particulars necessary for risk analysis and the proper application of customs controls, primarily for security and safety purposes, using, where appropriate, international standards and commercial practices.

2.   The summary declaration shall be made using a data processing technique. Commercial, port or transport information may be used, provided that it contains the necessary particulars.

Customs authorities may accept paper-based summary declarations in exceptional circumstances, provided that they apply the same level of risk management as that applied to summary declarations made using a data processing technique.

3.   The summary declaration shall be lodged by the person who brings the goods, or who assumes responsibility for the carriage of the goods into the customs territory of the Community.

4.   Notwithstanding the obligation of the person referred to in paragraph 3, the summary declaration may be lodged instead by:

| (a) | the person in whose name the person referred to in paragraph 3 acts; or |
| --- | --- |

(a)

the person in whose name the person referred to in paragraph 3 acts; or

| (b) | any person who is able to present the goods in question or to have them presented to the competent customs authority; or |
| --- | --- |

(b)

any person who is able to present the goods in question or to have them presented to the competent customs authority; or

| (c) | a representative of one of the persons referred to in paragraph 3 or points (a) or (b). |
| --- | --- |

(c)

a representative of one of the persons referred to in paragraph 3 or points (a) or (b).

5.   The person referred to in paragraphs 3 and 4 shall, at his request, be authorised to amend one or more particulars of the summary declaration after it has been lodged. However, no amendment shall be possible after the customs authorities:

| (a) | have informed the person who lodged the summary declaration that they intend to examine the goods; or |
| --- | --- |

(a)

have informed the person who lodged the summary declaration that they intend to examine the goods; or

| (b) | have established that the particulars in questions are incorrect; or |
| --- | --- |

(b)

have established that the particulars in questions are incorrect; or

| (c) | have allowed the removal of the goods. |
| --- | --- |

(c)

have allowed the removal of the goods.

Article 36c

1.   The customs office of entry may waive the lodging of a summary declaration in respect of goods for which, before expiry of the time limit referred to in Article 36a(3) or (4), a customs declaration is lodged. In such case, the customs declaration shall contain at least the particulars necessary for a summary declaration and, until such time as the former is accepted in accordance with Article 63, it shall have the status of a summary declaration.

Customs authorities may allow the customs declaration to be lodged at a customs office of import different from the customs office of entry, provided that this office immediately communicates or makes available electronically the necessary particulars to the customs office of entry.

2.   Where the customs declaration is lodged other than by use of data processing technique, the customs authorities shall apply the same level of risk management to the data as that applied to summary declarations made using a data processing technique.’;

| 7. | in Article 37(1) ‘control by the customs authority’ shall be replaced by ‘customs controls’ and in Article 38(3) ‘the control of the customs authority of’ shall be replaced by ‘customs controls by’; |
| --- | --- |

7.

in Article 37(1) ‘control by the customs authority’ shall be replaced by ‘customs controls’ and in Article 38(3) ‘the control of the customs authority of’ shall be replaced by ‘customs controls by’;

| 8. | Article 38(5) shall be replaced by the following:
  ‘5.   Paragraphs 1 to 4 and Articles 36a to 36c and 39 to 53 shall not apply to goods which temporarily leave the customs territory of the Community while moving between two points in that territory by sea or air, provided that the carriage is effected by a direct route and by regular air or shipping services without a stop outside the customs territory of the Community.’; |
| --- | --- |

8.

Article 38(5) shall be replaced by the following:

‘5.   Paragraphs 1 to 4 and Articles 36a to 36c and 39 to 53 shall not apply to goods which temporarily leave the customs territory of the Community while moving between two points in that territory by sea or air, provided that the carriage is effected by a direct route and by regular air or shipping services without a stop outside the customs territory of the Community.’;

| 9. | Article 40 shall be replaced by the following:
  ‘Article 40

  Goods entering the customs territory of the Community shall be presented to customs by the person who brings them into that territory or, if appropriate, by the person who assumes responsibility for carriage of the goods following such entry, with the exception of goods carried on means of transport only passing through the territorial waters or the airspace of the customs territory of the Community without a stop within this territory. The person presenting the goods shall make a reference to the summary declaration or customs declaration previously lodged in respect of the goods.’; |
| --- | --- |

9.

Article 40 shall be replaced by the following:

‘Article 40

Article 40

Goods entering the customs territory of the Community shall be presented to customs by the person who brings them into that territory or, if appropriate, by the person who assumes responsibility for carriage of the goods following such entry, with the exception of goods carried on means of transport only passing through the territorial waters or the airspace of the customs territory of the Community without a stop within this territory. The person presenting the goods shall make a reference to the summary declaration or customs declaration previously lodged in respect of the goods.’;

| 10. | In Title III, Chapter 3 shall be retitled ‘Unloading of goods presented to customs’; |
| --- | --- |

10.

In Title III, Chapter 3 shall be retitled ‘Unloading of goods presented to customs’;

| 11. | Articles 43 to 45 shall be deleted; |
| --- | --- |

11.

Articles 43 to 45 shall be deleted;

| 12. | Article 170(2) shall be replaced by the following:
  ‘2.   Goods shall be presented to the customs authorities and undergo the prescribed customs formalities where:






  (a) | they have been placed under a customs procedure which is discharged when they enter a free zone or free warehouse; however, where the customs procedure in question permits exemption from the obligation to present goods, such presentation shall not be required; |
| --- | --- | --- |

12.

Article 170(2) shall be replaced by the following:

‘2.   Goods shall be presented to the customs authorities and undergo the prescribed customs formalities where:

(a)

they have been placed under a customs procedure which is discharged when they enter a free zone or free warehouse; however, where the customs procedure in question permits exemption from the obligation to present goods, such presentation shall not be required;

| (b) | they have been placed in a free zone or free warehouse on the basis of a decision to grant repayment or remission of import duties; |
| --- | --- |

(b)

they have been placed in a free zone or free warehouse on the basis of a decision to grant repayment or remission of import duties;

| (c) | they qualify for the measures referred to in Article 166(b); |
| --- | --- |

(c)

they qualify for the measures referred to in Article 166(b);

| (d) | they enter a free zone or free warehouse directly from outside the customs territory of the Community.’; |
| --- | --- |

(d)

they enter a free zone or free warehouse directly from outside the customs territory of the Community.’;

| 13. | Article 176(2) shall be replaced by the following:
  ‘2.   Where goods are transhipped within a free zone, the records relating to the operation shall be kept at the disposal of the customs authorities. The short-term storage of goods in connection with such transhipment shall be considered to be an integral part of the operation.
  For goods brought into a free zone directly from outside the customs territory of the Community or out of a free zone directly leaving the customs territory of the Community, a summary declaration shall be lodged in accordance with Articles 36a to 36c or 182a to 182d, as appropriate.’; |
| --- | --- |

13.

Article 176(2) shall be replaced by the following:

‘2.   Where goods are transhipped within a free zone, the records relating to the operation shall be kept at the disposal of the customs authorities. The short-term storage of goods in connection with such transhipment shall be considered to be an integral part of the operation.

For goods brought into a free zone directly from outside the customs territory of the Community or out of a free zone directly leaving the customs territory of the Community, a summary declaration shall be lodged in accordance with Articles 36a to 36c or 182a to 182d, as appropriate.’;

| 14. | Article 181 shall be replaced by the following:
  ‘Article 181

  The customs authorities shall satisfy themselves that the rules governing exportation, outward processing, re-exportation, suspensive procedures or the internal transit procedure, as well as the provisions of Title V, are respected where goods are to leave the customs territory of the Community from a free zone or free warehouse.’; |
| --- | --- |

14.

Article 181 shall be replaced by the following:

‘Article 181

Article 181

The customs authorities shall satisfy themselves that the rules governing exportation, outward processing, re-exportation, suspensive procedures or the internal transit procedure, as well as the provisions of Title V, are respected where goods are to leave the customs territory of the Community from a free zone or free warehouse.’;

| 15. | in Article 182(3), first sentence, the words ‘Re-exportation or’ shall be deleted; |
| --- | --- |

15.

in Article 182(3), first sentence, the words ‘Re-exportation or’ shall be deleted;

| 16. | under Title V (Goods leaving the customs territory of the Community) the following Articles shall be inserted:
  ‘Article 182a

  1.   Goods leaving the customs territory of the Community, with the exception of goods carried on means of transport only passing through the territorial waters or the airspace of the customs territory without a stop within this territory, shall be covered either by a customs declaration or, where a customs declaration is not required, a summary declaration.
  2.   The committee procedure shall be used to establish:






  — | the time limit by which the customs declaration or a summary declaration shall be lodged at the customs office of export before the goods are brought out of the customs territory of the Community |
| --- | --- | --- |

16.

under Title V (Goods leaving the customs territory of the Community) the following Articles shall be inserted:

‘Article 182a

Article 182a

1.   Goods leaving the customs territory of the Community, with the exception of goods carried on means of transport only passing through the territorial waters or the airspace of the customs territory without a stop within this territory, shall be covered either by a customs declaration or, where a customs declaration is not required, a summary declaration.

2.   The committee procedure shall be used to establish:

—

the time limit by which the customs declaration or a summary declaration shall be lodged at the customs office of export before the goods are brought out of the customs territory of the Community

| — | the rules for exceptions from and variations to the time limit referred to above |
| --- | --- |

—

the rules for exceptions from and variations to the time limit referred to above

| — | the conditions under which the requirement for a summary declaration may be waived or adapted and |
| --- | --- |

—

the conditions under which the requirement for a summary declaration may be waived or adapted and

| — | the cases in which and the conditions under which goods leaving the customs territory of the Community are not subject to either a customs declaration or a summary declaration, |
| --- | --- |

—

the cases in which and the conditions under which goods leaving the customs territory of the Community are not subject to either a customs declaration or a summary declaration,

in accordance with the specific circumstances and for particular types of goods traffic, modes of transport and economic operators and where international agreements provide for special security arrangements.

Article 182b

1.   Where goods leaving the customs territory of the Community are assigned to a customs approved treatment or use for the purpose of which a customs declaration is required under the customs rules, this customs declaration shall be lodged at the customs office of export before the goods are to be brought out of the customs territory of the Community.

2.   Where the customs office of export is different from the customs office of exit, the customs office of export shall immediately communicate or make available electronically the necessary particulars to the customs office of exit.

3.   The customs declaration shall contain at least the particulars necessary for the summary declaration referred to in Article 182d(1).

4.   Where the customs declaration is made other than by use of a data processing technique, the customs authorities shall apply the same level of risk management to the data as that applied to declarations made using a data processing technique.

Article 182c

1.   Where goods leaving the customs territory of the Community are not assigned to a customs approved treatment or use for which a customs declaration is required, a summary declaration shall be lodged at the customs office of exit before the goods are to be brought out of the customs territory of the Community.

2.   Customs authorities may allow the summary declaration to be lodged at another customs office, provided that this office immediately communicates or makes available electronically the necessary particulars to the customs office of exit.

3.   Customs authorities may accept, instead of the lodging of a summary declaration, the lodging of a notification and access to the summary declaration data in the operator's computer system.

Article 182d

1.   The committee procedure shall be used to establish a common data set and format for the summary declaration, containing the particulars necessary for risk analysis and the proper application of customs controls, primarily for security and safety purposes, using, where appropriate, international standards and commercial practices.

2.   The summary declaration shall be made using a data-processing technique. Commercial, port or transport information may be used, provided that it contains the necessary particulars.

Customs authorities may accept paper-based summary declarations in exceptional circumstances, provided that they apply the same level of risk management as that applied to summary declarations made using a data processing technique.

3.   The summary declaration shall be lodged by:

| (a) | the person who brings the goods, or who assumes responsibility for the carriage of the goods, out of the customs territory of the Community; or |
| --- | --- |

(a)

the person who brings the goods, or who assumes responsibility for the carriage of the goods, out of the customs territory of the Community; or

| (b) | any person who is able to present the goods in question or to have them presented to the competent customs authority; or |
| --- | --- |

(b)

any person who is able to present the goods in question or to have them presented to the competent customs authority; or

| (c) | a representative of one of the persons referred to in points (a) or (b). |
| --- | --- |

(c)

a representative of one of the persons referred to in points (a) or (b).

4.   The person referred to in paragraph 3 shall, at his request, be authorised to amend one or more particulars of the summary declaration after it has been lodged. However, no amendment shall be possible after the customs authorities:

| (a) | have informed the person who lodged the summary declaration that they intend to examine the goods; or |
| --- | --- |

(a)

have informed the person who lodged the summary declaration that they intend to examine the goods; or

| (b) | have established that the particulars in questions are incorrect; or |
| --- | --- |

(b)

have established that the particulars in questions are incorrect; or

| (c) | have allowed the removal of the goods.’ |
| --- | --- |

(c)

have allowed the removal of the goods.’

Article 2

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

Official Journal of the European Union.

Article 5a(2), Article 13(2) 2nd subparagraph, Article 36a(4), Article 36b(1), Article 182a(2) and Article 182d(1) shall be applicable from........... (8).

8

All other provisions shall be applicable once the implementing provisions on the basis of the Articles referred to in the second subparagraph have entered into force. However, electronic declaration and automated systems for the implementation of risk management and for the electronic exchange of data between customs offices of entry, import, export and exit, as stipulated in Articles 13, 36a, 36b, 36c, 182b, 182c and 182d, shall be in place three years after these Articles have become applicable.

Not later than two years after these Articles have become applicable, the Commission shall evaluate any request from Member States for an extension of the three-year period referred to in the third subparagraph for electronic declaration and automated systems for the implementation of risk management and for the electronic exchange of data between customs offices. The Commission shall submit a report to the European Parliament and to the Council and propose, where appropriate, an extension of the three-year period referred to in the third subparagraph.

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

Done at Brussels, ...

For the European Parliament

The President

...

For the Council

The President

...

---

(1)  OJ C 110, 30.4.2004, p. 72.

1

(2)  Opinion of the European Parliament of 20 April 2004 (OJ C 104 E, 30.4.2004), Council Common Position of 29 November 2004 and position of the European Parliament of ... (not yet published in the Official Journal).

2

(3)  OJ L 302, 19.10.1992, p. 1. Regulation as last amended by the 2003 Act of Accession.

3

(4)  OJ L 281, 23.11.1995, p. 31. Directive as amended by Regulation (EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

4

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

5

(6)  OJ L 281, 23.11.1995, p. 31. Directive as amended by Regulation (EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

6

(7)  OJ L 8, 12.1.2001, p. 1.’

7

(8)  the date of entry into force of this Regulation.

8

---

STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

On 25 July 2003, the Commission submitted to the Council the abovementioned proposal, which is based on Articles 26, 95, 133 and 135 of the Treaty.

The Economic and Social Committee delivered its Opinion on 26 February 2004 (1).

The European Parliament delivered its Opinion at first reading on 20 April 2004 (2), adopting 26 amendments to the proposal. The Commission has accepted the majority of them, but is unable to accept six of the proposed amendments.

The Commission presented to the Council on 4 May 2004 an amended proposal on the above subject.

On 29 November 2004, the Council adopted its common position in accordance with Article 251(2) of the Treaty.

II.   OBJECTIVE

The objective of the proposed Regulation is to establish, on the basis of commonly agreed standards and risk criteria, an equivalent level of protection in customs controls for goods entering and leaving the Community. This should be achieved by introducing a system of pre-arrival and pre-departure declarations, while enhancing the use of information technology.

III.   COMMON POSITION

1.   GENERAL

In its common position, the Council broadly supports the proposal's objective, which is to improve the security of trade-flows into and out of the Community by introducing appropriate risk-based controls and by using an improved system of data communication and information sharing.

2.   EP AMENDMENTS

The Council took the following positions on the amendments adopted by the European Parliament:

| — | The Council has accepted Amendments 1, 3, 4, 7 and 11 to 23 and 26, |
| --- | --- |

—

The Council has accepted Amendments 1, 3, 4, 7 and 11 to 23 and 26,

| — | Amendment 2: the Council considers that a reference to customs controls on goods leaving the Community should be inserted into the text (cf. common position on Amendment 24), |
| --- | --- |

—

Amendment 2: the Council considers that a reference to customs controls on goods leaving the Community should be inserted into the text (cf. common position on Amendment 24),

| — | the Council has not accepted the modifications proposed in Amendment 5, and prefers the text in the proposal of the Commission. However, the Council can accept the suggested insertion of a reference to international agreements in that recital, |
| --- | --- |

—

the Council has not accepted the modifications proposed in Amendment 5, and prefers the text in the proposal of the Commission. However, the Council can accept the suggested insertion of a reference to international agreements in that recital,

| — | Amendment 6 dealing with the definitions of different types of customs offices has not been accepted by the Council since it lacks some essential elements such as the reference to the designation by the customs authorities in accordance with the customs rules and the reference to risk-based controls at different types of customs offices, |
| --- | --- |

—

Amendment 6 dealing with the definitions of different types of customs offices has not been accepted by the Council since it lacks some essential elements such as the reference to the designation by the customs authorities in accordance with the customs rules and the reference to risk-based controls at different types of customs offices,

| — | Amendment 8: The Council prefers to specify the types of movements of goods to which the present rules apply. This should be done in line with the text used in the proposed definition of‘customs control’. The reference to ‘the entry, exit, transit, transfer and end-use of goods’ should therefore be used in the definition of ‘risk’ as well as in Article 13 (Amendment 10). The Council has accepted the deletion of the definition of ‘authorised economic operator’ given that this concept has been inserted in the new Article 5a (Amendment 9), |
| --- | --- |

—

Amendment 8: The Council prefers to specify the types of movements of goods to which the present rules apply. This should be done in line with the text used in the proposed definition of‘customs control’. The reference to ‘the entry, exit, transit, transfer and end-use of goods’ should therefore be used in the definition of ‘risk’ as well as in Article 13 (Amendment 10). The Council has accepted the deletion of the definition of ‘authorised economic operator’ given that this concept has been inserted in the new Article 5a (Amendment 9),

| — | Amendment 9: The Council welcomes the amendment on the ‘authorised economic operator’ and considers the new Article 5a as one of the key elements of the draft Regulation. However, in its common position, the Council has refined the concept of the ‘authorised economic operator’ by introducing a differentiation between the recognition of the status of ‘authorised economic operator’ by Member States other than the Member State which initially granted that status and the authorisation for such operators to benefit from simplifications provided for in the customs rules. Through this differentiation, Member States would not have to repeat evaluations on the status of ‘authorised economic operator’ already carried out in the originating Member State but would nevertheless be able to examine whether an operator fulfilled the criteria linked to a specific type of simplification provided for in the customs rules. In addition, the Council has inserted a reference to ‘financial solvency’ as one of the criteria for accreditation as an ‘authorised economic operator’ in Article 5a(2). Finally, the Council has adapted the rules and conditions to be laid down by the Committee procedure in line with the modifications on the concept of ‘authorised economic operator’. |
| --- | --- |

—

Amendment 9: The Council welcomes the amendment on the ‘authorised economic operator’ and considers the new Article 5a as one of the key elements of the draft Regulation. However, in its common position, the Council has refined the concept of the ‘authorised economic operator’ by introducing a differentiation between the recognition of the status of ‘authorised economic operator’ by Member States other than the Member State which initially granted that status and the authorisation for such operators to benefit from simplifications provided for in the customs rules. Through this differentiation, Member States would not have to repeat evaluations on the status of ‘authorised economic operator’ already carried out in the originating Member State but would nevertheless be able to examine whether an operator fulfilled the criteria linked to a specific type of simplification provided for in the customs rules. In addition, the Council has inserted a reference to ‘financial solvency’ as one of the criteria for accreditation as an ‘authorised economic operator’ in Article 5a(2). Finally, the Council has adapted the rules and conditions to be laid down by the Committee procedure in line with the modifications on the concept of ‘authorised economic operator’.

| — | Amendment 10: the Council has not accepted this amendment. In its common position, the Council restricted the exchange of information between authorities in one Member State and customs authorities in another Member State or the Commission to cases where this is required for the purposes of minimising risk as defined in Article 4 No 25, |
| --- | --- |

—

Amendment 10: the Council has not accepted this amendment. In its common position, the Council restricted the exchange of information between authorities in one Member State and customs authorities in another Member State or the Commission to cases where this is required for the purposes of minimising risk as defined in Article 4 No 25,

| — | Amendment 24: the deletion of the proposed Article 182b, providing for the establishment of the detailed rules to be laid down in relation to summary declarations for export, has not been accepted by the Council. The system of pre-departure declaration should not only apply in those cases where the exporter is obliged by the third country to provide security-related information but apply as part of a general system of security-related advance information, |
| --- | --- |

—

Amendment 24: the deletion of the proposed Article 182b, providing for the establishment of the detailed rules to be laid down in relation to summary declarations for export, has not been accepted by the Council. The system of pre-departure declaration should not only apply in those cases where the exporter is obliged by the third country to provide security-related information but apply as part of a general system of security-related advance information,

| — | Amendment 25, deleting the references to Articles 182a and 182b and thereby suppressing the necessity for a summary declaration for goods leaving the EU customs territory from a free zone, has been rejected by the Council since it considers that this could result in security loopholes in the system of pre-departure declarations. |
| --- | --- |

—

Amendment 25, deleting the references to Articles 182a and 182b and thereby suppressing the necessity for a summary declaration for goods leaving the EU customs territory from a free zone, has been rejected by the Council since it considers that this could result in security loopholes in the system of pre-departure declarations.

3.   New elements introduced by the Council

In addition to the items on which the European Parliament has delivered its Opinion and on which the Council common position is reflected above, the Council inserted two recitals clarifying its approach relating to the recognition of authorised economic operators and the simplifications granted to them (new recitals 3 and 4).

IV.   CONCLUSION

The Council's common position is in line with the objective of the proposed Regulation, which is to improve the security-management concept for the EU's external borders, in particular by introducing risk-based controls and extensive use of information technology. In addition, it strikes a balance between the aim of strengthening security by better-targeted border-controls and the additional administrative burden for economic operators created by the obligation to deliver advance information to enable such controls. As also suggested in the Opinion by the European Parliament, the Council opted for the introduction of an increased possibility for economic operators to benefit from simplifications provided for under the customs rules if, at the same time, they fulfil the necessary requirements. However, the Council supports the proposal of the Commission in upholding the symmetry between controls for imports into and exports from the Community.

---

(1)  OJ C 110 of 30.4.2004, p. 72.

(2)  OJ C 104 E, 30.4.2004.

---

| 15.2.2005 | EN | Official Journal of the European Union | CE 38/45 |
| --- | --- | --- | --- |

15.2.2005

EN

Official Journal of the European Union

CE 38/45

---

COMMON POSITION (EC) No 9/2005

adopted by the Council on 29 November 2004

with a view to adopting Directive 2005/.../EC of the European Parliament and of the Council of ... establishing a framework for the setting of ecodesign requirements for energy-using products and amending Council Directive 92/42/EEC and Directives 96/57/EC and 2000/55/EC of the European Parliament and of the Council

(2005/C 38 E/04)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission,

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

After consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),

Whereas:

| (1) | The disparities between the laws or administrative measures adopted by the Member States in relation to the ecodesign of energy using products can create barriers to trade and distort competition in the Community and may thus have a direct impact on the establishment and functioning of the internal market. The harmonisation of national laws is the only means to prevent such barriers to trade and unfair competition. |
| --- | --- |

(1)

The disparities between the laws or administrative measures adopted by the Member States in relation to the ecodesign of energy using products can create barriers to trade and distort competition in the Community and may thus have a direct impact on the establishment and functioning of the internal market. The harmonisation of national laws is the only means to prevent such barriers to trade and unfair competition.

| (2) | Energy using products (EuPs) account for a large proportion of the consumption of natural resources and energy in the Community. They also have a number of other important environmental impacts. For the vast majority of product categories available on the Community market, very different degrees of environmental impact can be noted though they provide similar functional performances. In the interest of sustainable development, continuous improvement in the overall environmental impact of those products should be encouraged, notably by identifying the major sources of negative environmental impacts and avoiding transfer of pollution, when this improvement does not entail excessive costs. |
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(2)

Energy using products (EuPs) account for a large proportion of the consumption of natural resources and energy in the Community. They also have a number of other important environmental impacts. For the vast majority of product categories available on the Community market, very different degrees of environmental impact can be noted though they provide similar functional performances. In the interest of sustainable development, continuous improvement in the overall environmental impact of those products should be encouraged, notably by identifying the major sources of negative environmental impacts and avoiding transfer of pollution, when this improvement does not entail excessive costs.

| (3) | The ecodesign of products is a crucial factor in the Community strategy on Integrated Product Policy. As a preventive approach, designed to optimise the environmental performance of products, while maintaining their functional qualities, it provides genuine new opportunities for manufacturers, for consumers and for society as a whole. |
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(3)

The ecodesign of products is a crucial factor in the Community strategy on Integrated Product Policy. As a preventive approach, designed to optimise the environmental performance of products, while maintaining their functional qualities, it provides genuine new opportunities for manufacturers, for consumers and for society as a whole.

| (4) | Energy efficiency improvement – with one of the available options being more efficient end use of electricity – is regarded as contributing substantially to the achievement of greenhouse gas emission targets in the Community. Electricity demand is the fastest growing energy end use category and is projected to grow within the next 20 to 30 years, in the absence of any policy action to counteract this trend. A significant reduction in energy consumption as suggested by the European Climate Change Programme reported by the Commission is possible. Climate change is one of the priorities of the Sixth Community Environment Action Programme, laid down by Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 (3). Energy saving is the most cost effective way to increase security of supply and reduce import dependency. Therefore, substantial demand side measures and targets should be adopted. |
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(4)

Energy efficiency improvement – with one of the available options being more efficient end use of electricity – is regarded as contributing substantially to the achievement of greenhouse gas emission targets in the Community. Electricity demand is the fastest growing energy end use category and is projected to grow within the next 20 to 30 years, in the absence of any policy action to counteract this trend. A significant reduction in energy consumption as suggested by the European Climate Change Programme reported by the Commission is possible. Climate change is one of the priorities of the Sixth Community Environment Action Programme, laid down by Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 (3). Energy saving is the most cost effective way to increase security of supply and reduce import dependency. Therefore, substantial demand side measures and targets should be adopted.

| (5) | Action should be taken during the design phase of EuPs, since it appears that the pollution caused during a product's life cycle is determined at that stage, and most of the costs involved are committed then. |
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(5)

Action should be taken during the design phase of EuPs, since it appears that the pollution caused during a product's life cycle is determined at that stage, and most of the costs involved are committed then.

| (6) | A coherent framework for the application of Community ecodesign requirements for EuPs should be established with the aim of ensuring the free movement of those products which comply and of improving their overall environmental impact. Such Community requirements should respect the principles of fair competition and international trade. |
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(6)

A coherent framework for the application of Community ecodesign requirements for EuPs should be established with the aim of ensuring the free movement of those products which comply and of improving their overall environmental impact. Such Community requirements should respect the principles of fair competition and international trade.

| (7) | Ecodesign requirements should be set bearing in mind the goals and priorities of the Sixth Community Environment Action Programme, including as appropriate applicable goals of the relevant thematic strategies of that Programme. |
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(7)

Ecodesign requirements should be set bearing in mind the goals and priorities of the Sixth Community Environment Action Programme, including as appropriate applicable goals of the relevant thematic strategies of that Programme.

| (8) | This Directive seeks to achieve a high level of protection for the environment by reducing the potential environmental impact of EuPs, which will ultimately be beneficial to consumers and other end users. Sustainable development also requires proper consideration of the health, social and economic impact of the measures envisaged. Improving the energy efficiency of products contributes to the security of the energy supply, which is a precondition of sound economic activity and therefore of sustainable development. |
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(8)

This Directive seeks to achieve a high level of protection for the environment by reducing the potential environmental impact of EuPs, which will ultimately be beneficial to consumers and other end users. Sustainable development also requires proper consideration of the health, social and economic impact of the measures envisaged. Improving the energy efficiency of products contributes to the security of the energy supply, which is a precondition of sound economic activity and therefore of sustainable development.

| (9) | In order to maximise the environmental benefits from improved design it may be necessary to inform consumers about the environmental characteristics and performance of EuPs and to advise them about how to use products in a manner which is environmentally friendly. |
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(9)

In order to maximise the environmental benefits from improved design it may be necessary to inform consumers about the environmental characteristics and performance of EuPs and to advise them about how to use products in a manner which is environmentally friendly.

| (10) | The approach set out in the Green Paper on Integrated Product Policy, which is a major innovative element of the Sixth Community Environment Action Programme, aims to reduce the environmental impacts of products across the whole of their life cycle. Considering at the design stage a product's environmental impact throughout its whole life cycle has a high potential to facilitate environmental improvement in a cost-effective way. There should be sufficient flexibility to enable this factor to be integrated in product design whilst taking account of technical, functional and economic considerations. |
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(10)

The approach set out in the Green Paper on Integrated Product Policy, which is a major innovative element of the Sixth Community Environment Action Programme, aims to reduce the environmental impacts of products across the whole of their life cycle. Considering at the design stage a product's environmental impact throughout its whole life cycle has a high potential to facilitate environmental improvement in a cost-effective way. There should be sufficient flexibility to enable this factor to be integrated in product design whilst taking account of technical, functional and economic considerations.

| (11) | Although a comprehensive approach to environmental performance is desirable, greenhouse gas mitigation through increased energy efficiency should be considered a priority environmental goal pending the adoption of a working plan. |
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(11)

Although a comprehensive approach to environmental performance is desirable, greenhouse gas mitigation through increased energy efficiency should be considered a priority environmental goal pending the adoption of a working plan.

| (12) | It may be necessary and justified to establish specific quantified ecodesign requirements for some products or environmental aspects thereof in order to ensure that their environmental impact is minimised. Given the urgent need to contribute to the achievement of the commitments in the framework of the Kyoto Protocol to the United Nations Framework Convention on Climate Changes (UNFCCC), and without prejudice to the integrated approach promoted in this Directive, some priority should be given to those measures with a high potential for reducing greenhouse gas emissions at low cost. Such measures can also contribute to a sustainable use of resources and constitute a major contribution to the 10-year framework of programmes on sustainable production and consumption agreed at the World Summit on Sustainable Development in Johannesburg in September 2002. |
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(12)

It may be necessary and justified to establish specific quantified ecodesign requirements for some products or environmental aspects thereof in order to ensure that their environmental impact is minimised. Given the urgent need to contribute to the achievement of the commitments in the framework of the Kyoto Protocol to the United Nations Framework Convention on Climate Changes (UNFCCC), and without prejudice to the integrated approach promoted in this Directive, some priority should be given to those measures with a high potential for reducing greenhouse gas emissions at low cost. Such measures can also contribute to a sustainable use of resources and constitute a major contribution to the 10-year framework of programmes on sustainable production and consumption agreed at the World Summit on Sustainable Development in Johannesburg in September 2002.

| (13) | The level of ecodesign requirements should normally be established on the basis of technical, economic and environmental analysis. Flexibility in the method for establishing the level of requirements can make swift improvement of environmental performance easier. Interested parties involved should be consulted and cooperate actively in this analysis. The setting of mandatory measures requires proper consultation of the parties involved. Such consultation may highlight the need for a phased introduction or transitional measures. The introduction of interim targets increases the predictability of the policy, allows for accommodating product development cycles and facilitates long-term planning for interested parties. |
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(13)

The level of ecodesign requirements should normally be established on the basis of technical, economic and environmental analysis. Flexibility in the method for establishing the level of requirements can make swift improvement of environmental performance easier. Interested parties involved should be consulted and cooperate actively in this analysis. The setting of mandatory measures requires proper consultation of the parties involved. Such consultation may highlight the need for a phased introduction or transitional measures. The introduction of interim targets increases the predictability of the policy, allows for accommodating product development cycles and facilitates long-term planning for interested parties.

| (14) | Priority should be given to alternative courses of actions such as self-regulation by the industry where such actions are likely to deliver the policy objectives faster or in a less costly manner than mandatory requirements. Legislative measures may be needed where market forces fail to evolve in the right direction or at an acceptable speed. |
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(14)

Priority should be given to alternative courses of actions such as self-regulation by the industry where such actions are likely to deliver the policy objectives faster or in a less costly manner than mandatory requirements. Legislative measures may be needed where market forces fail to evolve in the right direction or at an acceptable speed.

| (15) | Self-regulation, including voluntary agreements offered as unilateral commitments by industry, can provide for quick progress due to rapid and cost-effective implementation, and allows for flexible and appropriate adaptation to technological options and market sensitivities. |
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(15)

Self-regulation, including voluntary agreements offered as unilateral commitments by industry, can provide for quick progress due to rapid and cost-effective implementation, and allows for flexible and appropriate adaptation to technological options and market sensitivities.

| (16) | Chapter 6 of the Commission's ‘Communication on Environmental Agreements at Community level within the Framework of the Action Plan on the Simplification and Improvement of the Regulatory Environment’ could provide useful guidance when assessing self-regulation by industry in the context of this Directive. |
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(16)

Chapter 6 of the Commission's ‘Communication on Environmental Agreements at Community level within the Framework of the Action Plan on the Simplification and Improvement of the Regulatory Environment’ could provide useful guidance when assessing self-regulation by industry in the context of this Directive.

| (17) | This Directive should also encourage the integration of ecodesign in small and medium-sized enterprises (SMEs) and very small firms. Such integration could be facilitated by wide availability of and easy access to information relating to the sustainability of their products. |
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(17)

This Directive should also encourage the integration of ecodesign in small and medium-sized enterprises (SMEs) and very small firms. Such integration could be facilitated by wide availability of and easy access to information relating to the sustainability of their products.

| (18) | EuPs complying with the ecodesign requirements laid down in implementing measures to this Directive should bear the ‘CE’ marking and associated information, in order to enable them to be placed on the internal market and move freely. The rigorous enforcement of implementing measures is necessary to reduce the environmental impact of regulated EuPs and to ensure fair competition. |
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(18)

EuPs complying with the ecodesign requirements laid down in implementing measures to this Directive should bear the ‘CE’ marking and associated information, in order to enable them to be placed on the internal market and move freely. The rigorous enforcement of implementing measures is necessary to reduce the environmental impact of regulated EuPs and to ensure fair competition.

| (19) | When preparing implementing measures and its working plan the Commission should consult Member States' representatives as well as interested parties concerned with the product group, such as industry, including SMEs and craft industry, trade unions, traders, retailers, importers, environmental protection groups and consumer organisations. |
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(19)

When preparing implementing measures and its working plan the Commission should consult Member States' representatives as well as interested parties concerned with the product group, such as industry, including SMEs and craft industry, trade unions, traders, retailers, importers, environmental protection groups and consumer organisations.

| (20) | When preparing implementing measures, the Commission should also take due account of existing national environmental legislation, in particular concerning toxic substances, which Member States have indicated that they consider should be preserved, without reducing the existing and justified levels of protection in the Member States. |
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(20)

When preparing implementing measures, the Commission should also take due account of existing national environmental legislation, in particular concerning toxic substances, which Member States have indicated that they consider should be preserved, without reducing the existing and justified levels of protection in the Member States.

| (21) | Regard should be given to the modules and rules intended for use in technical harmonisation Directives set out in Council Decision 93/465/EEC of 22 July 1993 concerning the modules for the various phases of the conformity assessment procedures and the rules for the affixing and use of the CE conformity marking (4). |
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(21)

Regard should be given to the modules and rules intended for use in technical harmonisation Directives set out in Council Decision 93/465/EEC of 22 July 1993 concerning the modules for the various phases of the conformity assessment procedures and the rules for the affixing and use of the CE conformity marking (4).

| (22) | Surveillance authorities should exchange information on the measures envisaged within the scope of this Directive with a view to improving surveillance of the market. Such cooperation should make the utmost use of electronic means of communication and relevant Community programmes. The exchange of information on environmental life-cycle performance and on the achievements of design solutions should be facilitated. The accumulation and dissemination of the body of knowledge generated by the ecodesign efforts of manufacturers is one of the crucial benefits of the Directive. |
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(22)

Surveillance authorities should exchange information on the measures envisaged within the scope of this Directive with a view to improving surveillance of the market. Such cooperation should make the utmost use of electronic means of communication and relevant Community programmes. The exchange of information on environmental life-cycle performance and on the achievements of design solutions should be facilitated. The accumulation and dissemination of the body of knowledge generated by the ecodesign efforts of manufacturers is one of the crucial benefits of the Directive.

| (23) | In respect of training and information on ecodesign for SMEs, it may be appropriate to consider accompanying activities. |
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(23)

In respect of training and information on ecodesign for SMEs, it may be appropriate to consider accompanying activities.

| (24) | It is in the interest of the functioning of the internal market to have standards which have been harmonised at Community level. Once the reference to such a standard has been published in the Official Journal of the European Union, compliance with it should raise a presumption of conformity with the corresponding requirements set out in the implementing measure adopted on the basis of this Directive, although other means of demonstrating such conformity should be permitted. |
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(24)

It is in the interest of the functioning of the internal market to have standards which have been harmonised at Community level. Once the reference to such a standard has been published in the Official Journal of the European Union, compliance with it should raise a presumption of conformity with the corresponding requirements set out in the implementing measure adopted on the basis of this Directive, although other means of demonstrating such conformity should be permitted.

| (25) | One of the main roles of harmonised standards should be to help manufacturers in applying the implementing measures adopted under this Directive. Such standards could be essential in establishing measuring and testing methods. In the case of generic ecodesign requirements harmonised standards could contribute considerably to guiding manufacturers in establishing the ecological profile of their products in accordance with the requirements of the applicable implementing measure. These standards should clearly indicate the relationship between their clauses and the requirements dealt with. The purpose of harmonised standards should not be to fix limits for environmental aspects. |
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(25)

One of the main roles of harmonised standards should be to help manufacturers in applying the implementing measures adopted under this Directive. Such standards could be essential in establishing measuring and testing methods. In the case of generic ecodesign requirements harmonised standards could contribute considerably to guiding manufacturers in establishing the ecological profile of their products in accordance with the requirements of the applicable implementing measure. These standards should clearly indicate the relationship between their clauses and the requirements dealt with. The purpose of harmonised standards should not be to fix limits for environmental aspects.

| (26) | For the purpose of definitions used in this Directive it is useful to refer to relevant international standards such as ISO 14040. |
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(26)

For the purpose of definitions used in this Directive it is useful to refer to relevant international standards such as ISO 14040.

| (27) | This Directive is in accordance with certain principles for the implementation of the new approach as set out in the Council Resolution of 7 May 1985 on a new approach to technical harmonisation and standards (5) and of making reference to harmonised European standards. The Council Resolution of 28 October 1999 on the role of standardisation in Europe (6) recommended that the Commission should examine whether the new approach principle could be extended to sectors not yet covered as a means of improving and simplifying legislation wherever possible. |
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(27)

This Directive is in accordance with certain principles for the implementation of the new approach as set out in the Council Resolution of 7 May 1985 on a new approach to technical harmonisation and standards (5) and of making reference to harmonised European standards. The Council Resolution of 28 October 1999 on the role of standardisation in Europe (6) recommended that the Commission should examine whether the new approach principle could be extended to sectors not yet covered as a means of improving and simplifying legislation wherever possible.

| (28) | This Directive is complementary to existing Community instruments such as Council Directive 92/75/EEC of 22 September 1992 on the indication by labelling and standard product information of the consumption of energy and other resources by household appliances (7), Regulation (EC) No 1980/2000 of the European Parliament and of the Council of 17 July 2000 on a revised Community eco-label award scheme (8), Regulation (EC) No 2422/2001 of the European Parliament and of the Council of 6 November 2001 on a Community energy efficiency labelling programme for office equipment (9), Directive 2002/96/EC of the European Parliament and of the Council of 27 January 2003 on waste electrical and electronic equipment (WEEE) (10), Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (11) and Council Directive 76/769/EEC of 27 July 1976 relating to restrictions on the marketing and use of certain dangerous substances and preparations (12). Synergies between this Directive and the existing Community instruments should contribute to increasing their respective impacts and building coherent requirements for manufacturers to apply. |
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(28)

This Directive is complementary to existing Community instruments such as Council Directive 92/75/EEC of 22 September 1992 on the indication by labelling and standard product information of the consumption of energy and other resources by household appliances (7), Regulation (EC) No 1980/2000 of the European Parliament and of the Council of 17 July 2000 on a revised Community eco-label award scheme (8), Regulation (EC) No 2422/2001 of the European Parliament and of the Council of 6 November 2001 on a Community energy efficiency labelling programme for office equipment (9), Directive 2002/96/EC of the European Parliament and of the Council of 27 January 2003 on waste electrical and electronic equipment (WEEE) (10), Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (11) and Council Directive 76/769/EEC of 27 July 1976 relating to restrictions on the marketing and use of certain dangerous substances and preparations (12). Synergies between this Directive and the existing Community instruments should contribute to increasing their respective impacts and building coherent requirements for manufacturers to apply.

| (29) | Since Council Directive 92/42/EEC of 21 May 1992 on efficiency requirements for new hot-water boilers fired with liquid or gaseous fuels (13), Directive 96/57/EC of the European Parliament and of the Council of 3 September 1996 on energy efficiency requirements for household electric refrigerators, freezers and combinations thereof (14) and Directive 2000/55/EC of the European Parliament and of the Council of 18 September 2000 on energy efficiency requirements for ballasts for fluorescent lighting (15) already contain provisions for the revision of the energy efficiency requirements, they should be integrated into the present framework. |
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(29)

Since Council Directive 92/42/EEC of 21 May 1992 on efficiency requirements for new hot-water boilers fired with liquid or gaseous fuels (13), Directive 96/57/EC of the European Parliament and of the Council of 3 September 1996 on energy efficiency requirements for household electric refrigerators, freezers and combinations thereof (14) and Directive 2000/55/EC of the European Parliament and of the Council of 18 September 2000 on energy efficiency requirements for ballasts for fluorescent lighting (15) already contain provisions for the revision of the energy efficiency requirements, they should be integrated into the present framework.

| (30) | Directive 92/42/EEC provides for a star rating system intended to ascertain the energy performance of boilers. Since Member States and the industry agree that the star rating system has proved not to deliver the expected result, Directive 92/42/EEC should be amended to open the way for more effective schemes. |
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(30)

Directive 92/42/EEC provides for a star rating system intended to ascertain the energy performance of boilers. Since Member States and the industry agree that the star rating system has proved not to deliver the expected result, Directive 92/42/EEC should be amended to open the way for more effective schemes.

| (31) | The requirements laid down in Council Directive 78/170/EEC of 13 February 1978 on the performance of heat generators for space heating and the production of hot water in new or existing non-industrial buildings and on the insulation of heat and domestic hot-water distribution in new non-industrial buildings (16) have been superseded by provisions of Directive 92/42/EEC, Council Directive 90/396/EEC of 29 June 1990 on the approximation of the laws of the Member States relating to appliances burning gaseous fuels (17) and Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings (18). Directive 78/170/EEC should therefore be repealed. |
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(31)

The requirements laid down in Council Directive 78/170/EEC of 13 February 1978 on the performance of heat generators for space heating and the production of hot water in new or existing non-industrial buildings and on the insulation of heat and domestic hot-water distribution in new non-industrial buildings (16) have been superseded by provisions of Directive 92/42/EEC, Council Directive 90/396/EEC of 29 June 1990 on the approximation of the laws of the Member States relating to appliances burning gaseous fuels (17) and Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings (18). Directive 78/170/EEC should therefore be repealed.

| (32) | Council Directive 86/594/EEC of 1 December 1986 on airborne noise emitted by household appliances (19) lays down the conditions under which publication of information on the noise emitted by such appliances may be required by Member States, and defines a procedure to determine the level of noise. For harmonisation purposes noise emissions should be included in an integrated assessment of environmental performance. Since this Directive provides for such an integrated approach, Directive 86/594/EEC should be repealed. |
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(32)

Council Directive 86/594/EEC of 1 December 1986 on airborne noise emitted by household appliances (19) lays down the conditions under which publication of information on the noise emitted by such appliances may be required by Member States, and defines a procedure to determine the level of noise. For harmonisation purposes noise emissions should be included in an integrated assessment of environmental performance. Since this Directive provides for such an integrated approach, Directive 86/594/EEC should be repealed.

| (33) | The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (20). |
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(33)

The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (20).

| (34) | Member States should determine the penalties to be applied in the event of infringements of the national provisions adopted pursuant to this Directive. Those penalties should be effective, proportionate and dissuasive. |
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(34)

Member States should determine the penalties to be applied in the event of infringements of the national provisions adopted pursuant to this Directive. Those penalties should be effective, proportionate and dissuasive.

| (35) | It should be remembered that paragraph 34 of the Interinstitutional agreement on better law-making (21) states that the Council ‘will encourage the Member States to draw up, for themselves and in the interests of the Community, their own tables which will, as far as possible, illustrate the correlation between directives and the transposition measures and to make them public.’ |
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(35)

It should be remembered that paragraph 34 of the Interinstitutional agreement on better law-making (21) states that the Council ‘will encourage the Member States to draw up, for themselves and in the interests of the Community, their own tables which will, as far as possible, illustrate the correlation between directives and the transposition measures and to make them public.’

| (36) | Since the objective of the proposed action, namely to ensure the functioning of the internal market by requiring products to reach an adequate level of environmental performance, cannot be sufficiently achieved by Member States acting alone and can therefore, by reason of its scale and effects, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve this objective, |
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(36)

Since the objective of the proposed action, namely to ensure the functioning of the internal market by requiring products to reach an adequate level of environmental performance, cannot be sufficiently achieved by Member States acting alone and can therefore, by reason of its scale and effects, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve this objective,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject matter and scope

1.   This Directive establishes a framework for the setting of Community ecodesign requirements for energy using products with the aim of ensuring the free movement of those products within the internal market.

2.   This Directive provides for the setting of requirements which the energy using products covered by implementing measures must fulfil in order for them to be placed on the market and/or put into service. It contributes to sustainable development by increasing energy efficiency and the level of protection of the environment, while at the same time increasing the security of the energy supply.

3.   This Directive shall not apply to means of transport for persons or goods.

4.   This Directive and the implementing measures adopted pursuant to it shall be without prejudice to Community waste management legislation and Community chemicals legislation, including Community legislation on fluorinated greenhouse gases.

Article 2

Definitions

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

| 1. | ‘Energy-using Product’ or ‘EuP’ means a product which, once placed on the market and/or put into service, is dependent on energy input (electricity, fossil fuels and renewable energy sources) to work as intended, or a product for the generation, transfer and measurement of such energy, including parts dependent on energy input and intended to be incorporated into an EuP covered by this Directive which are placed on the market and/or put into service as individual parts for end-users and of which the environmental performance can be assessed independently; |
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1.

‘Energy-using Product’ or ‘EuP’ means a product which, once placed on the market and/or put into service, is dependent on energy input (electricity, fossil fuels and renewable energy sources) to work as intended, or a product for the generation, transfer and measurement of such energy, including parts dependent on energy input and intended to be incorporated into an EuP covered by this Directive which are placed on the market and/or put into service as individual parts for end-users and of which the environmental performance can be assessed independently;

| 2. | ‘Components and sub-assemblies’ means parts intended to be incorporated into EuPs, and which are not placed on the market and/or put into service as individual parts for end users or the environmental performance of which cannot be assessed independently; |
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2.

‘Components and sub-assemblies’ means parts intended to be incorporated into EuPs, and which are not placed on the market and/or put into service as individual parts for end users or the environmental performance of which cannot be assessed independently;

| 3. | ‘Implementing measures’ means measures adopted pursuant to this Directive laying down ecodesign requirements for defined EuPs or for environmental aspects thereof; |
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3.

‘Implementing measures’ means measures adopted pursuant to this Directive laying down ecodesign requirements for defined EuPs or for environmental aspects thereof;

| 4. | ‘Placing on the market’ means making an EuP available for the first time on the Community market with a view to its distribution or use within the Community whether for reward or free of charge and irrespective of the selling technique; |
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4.

‘Placing on the market’ means making an EuP available for the first time on the Community market with a view to its distribution or use within the Community whether for reward or free of charge and irrespective of the selling technique;

| 5. | ‘Putting into service’ means the first use of an EuP for its intended purpose by an end-user in the Community; |
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5.

‘Putting into service’ means the first use of an EuP for its intended purpose by an end-user in the Community;

| 6. | ‘Manufacturer’ means any natural or legal person who manufactures EuPs covered by this Directive and is responsible for their conformity with this Directive in view of their being placed on the market and/or put into service under the manufacturer's own name or trademark or for the manufacturer's own use. In the absence of a manufacturer as defined in the first sentence, any natural or legal person who places on the market and/or puts into service EuPs covered by this Directive shall be considered a manufacturer; |
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6.

‘Manufacturer’ means any natural or legal person who manufactures EuPs covered by this Directive and is responsible for their conformity with this Directive in view of their being placed on the market and/or put into service under the manufacturer's own name or trademark or for the manufacturer's own use. In the absence of a manufacturer as defined in the first sentence, any natural or legal person who places on the market and/or puts into service EuPs covered by this Directive shall be considered a manufacturer;

| 7. | ‘Authorised representative’ means any natural or legal person established in the Community who has received a written mandate from the manufacturer to perform on his behalf all or part of the obligations and formalities connected with this Directive; |
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7.

‘Authorised representative’ means any natural or legal person established in the Community who has received a written mandate from the manufacturer to perform on his behalf all or part of the obligations and formalities connected with this Directive;

| 8. | ‘Materials’ means all materials used during the life cycle of an EuP; |
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8.

‘Materials’ means all materials used during the life cycle of an EuP;

| 9. | ‘Product design’ means the set of processes that transform legal, technical, safety, functional, market or other requirements to be met by an EuP into the technical specification for that EuP; |
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9.

‘Product design’ means the set of processes that transform legal, technical, safety, functional, market or other requirements to be met by an EuP into the technical specification for that EuP;

| 10. | ‘Environmental aspect’ means an element or function of an EuP that can interact with the environment during its life cycle; |
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10.

‘Environmental aspect’ means an element or function of an EuP that can interact with the environment during its life cycle;

| 11. | ‘Environmental impact’ means any change to the environment wholly or partially resulting from an EuP during its life cycle; |
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11.

‘Environmental impact’ means any change to the environment wholly or partially resulting from an EuP during its life cycle;

| 12. | ‘Life cycle’ means the consecutive and interlinked stages of an EuP from raw material use to final disposal; |
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12.

‘Life cycle’ means the consecutive and interlinked stages of an EuP from raw material use to final disposal;

| 13. | ‘Reuse’ means any operation by which an EuP or its components, having reached the end of their first use, are used for the same purpose for which they were conceived, including the continued use of an EuP which is returned to a collection point, distributor, recycler or manufacturer, as well as reuse of an EuP following refurbishment; |
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13.

‘Reuse’ means any operation by which an EuP or its components, having reached the end of their first use, are used for the same purpose for which they were conceived, including the continued use of an EuP which is returned to a collection point, distributor, recycler or manufacturer, as well as reuse of an EuP following refurbishment;

| 14. | ‘Recycling’ means the reprocessing in a production process of waste materials for the original purpose or for other purposes but excluding energy recovery; |
| --- | --- |

14.

‘Recycling’ means the reprocessing in a production process of waste materials for the original purpose or for other purposes but excluding energy recovery;

| 15. | ‘Energy recovery’ means the use of combustible waste as a means to generate energy through direct incineration with or without other waste but with recovery of the heat; |
| --- | --- |

15.

‘Energy recovery’ means the use of combustible waste as a means to generate energy through direct incineration with or without other waste but with recovery of the heat;

| 16. | ‘Recovery’ means any of the applicable operations provided for in Annex II B to Council Directive 75/442/EEC of 15 July 1975 on waste (22); |
| --- | --- |

16.

‘Recovery’ means any of the applicable operations provided for in Annex II B to Council Directive 75/442/EEC of 15 July 1975 on waste (22);

| 17. | ‘Waste’ means any substance or object in the categories set out in Annex I to Directive 75/442/EEC which the holder discards or intends or is required to discard; |
| --- | --- |

17.

‘Waste’ means any substance or object in the categories set out in Annex I to Directive 75/442/EEC which the holder discards or intends or is required to discard;

| 18. | ‘Hazardous waste’ means any waste which is covered by Article 1(4) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (23); |
| --- | --- |

18.

‘Hazardous waste’ means any waste which is covered by Article 1(4) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (23);

| 19 | ‘Ecological profile’ means a description, in accordance with the implementing measure applicable to the EuP, of the inputs and outputs (such as materials, emissions and waste) associated with an EuP throughout its life cycle which are significant from the point of view of its environmental impact and are expressed in physical quantities that can be measured; |
| --- | --- |

19

‘Ecological profile’ means a description, in accordance with the implementing measure applicable to the EuP, of the inputs and outputs (such as materials, emissions and waste) associated with an EuP throughout its life cycle which are significant from the point of view of its environmental impact and are expressed in physical quantities that can be measured;

| 20. | ‘Environmental performance’ of an EuP means the results of the manufacturer's management of the environmental aspects of the EuP, as reflected in its technical documentation file; |
| --- | --- |

20.

‘Environmental performance’ of an EuP means the results of the manufacturer's management of the environmental aspects of the EuP, as reflected in its technical documentation file;

| 21. | ‘Improvement of the environmental performance’ means the process of enhancing the environmental performance of an EuP over successive generations, although not necessarily in respect of all environmental aspects of the product simultaneously; |
| --- | --- |

21.

‘Improvement of the environmental performance’ means the process of enhancing the environmental performance of an EuP over successive generations, although not necessarily in respect of all environmental aspects of the product simultaneously;

| 22. | ‘Ecodesign’ means the integration of environmental aspects into product design with the aim of improving the environmental performance of the EuP throughout its whole life cycle; |
| --- | --- |

22.

‘Ecodesign’ means the integration of environmental aspects into product design with the aim of improving the environmental performance of the EuP throughout its whole life cycle;

| 23. | ‘Ecodesign requirement’ means any requirement in relation to an EuP, or the design of an EuP, intended to improve its environmental performance, or any requirement for the supply of information with regard to the environmental aspects of an EuP; |
| --- | --- |

23.

‘Ecodesign requirement’ means any requirement in relation to an EuP, or the design of an EuP, intended to improve its environmental performance, or any requirement for the supply of information with regard to the environmental aspects of an EuP;

| 24. | ‘Generic ecodesign requirement’ means any ecodesign requirement based on the ecological profile as a whole of an EuP without set limit values for particular environmental aspects; |
| --- | --- |

24.

‘Generic ecodesign requirement’ means any ecodesign requirement based on the ecological profile as a whole of an EuP without set limit values for particular environmental aspects;

| 25. | ‘Specific ecodesign requirement’ means a quantified and measurable ecodesign requirement relating to a particular environmental aspect of an EuP, such as energy consumption during use, calculated for a given unit of output performance; |
| --- | --- |

25.

‘Specific ecodesign requirement’ means a quantified and measurable ecodesign requirement relating to a particular environmental aspect of an EuP, such as energy consumption during use, calculated for a given unit of output performance;

| 26. | ‘Harmonised standard’ means a technical specification adopted by a recognised standards body under a mandate from the Commission, in accordance with the procedure laid down in Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (24), for the purpose of establishing a European requirement, compliance with which is not compulsory. |
| --- | --- |

26.

‘Harmonised standard’ means a technical specification adopted by a recognised standards body under a mandate from the Commission, in accordance with the procedure laid down in Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (24), for the purpose of establishing a European requirement, compliance with which is not compulsory.

Article 3

Placing on the market and/or putting into service

1.   Member States shall take all appropriate measures to ensure that EuPs covered by implementing measures may be placed on the market and/or put into service only if they comply with those measures and bear the CE marking in accordance with Article 4.

2.   Member States shall designate the authorities responsible for market surveillance. They shall arrange for such authorities to have and use the necessary powers to take the appropriate measures incumbent upon them under this Directive. Member States shall define the tasks, powers and organisational arrangements of the competent authorities which shall be entitled:

| (i) | to organise appropriate checks on EuP compliance, on an adequate scale, and to oblige the manufacturer or its authorised representative to recall non-compliant EuPs from the market in accordance with Article 6; |
| --- | --- |

(i)

to organise appropriate checks on EuP compliance, on an adequate scale, and to oblige the manufacturer or its authorised representative to recall non-compliant EuPs from the market in accordance with Article 6;

| (ii) | to require the provision of all necessary information by the parties concerned, as specified in implementing measures; |
| --- | --- |

(ii)

to require the provision of all necessary information by the parties concerned, as specified in implementing measures;

| (iii) | to take samples of products and subject them to compliance checks. |
| --- | --- |

(iii)

to take samples of products and subject them to compliance checks.

3.   Member States shall keep the Commission informed about the results of the market surveillance, and where appropriate the Commission shall pass on such information to the other Member States.

4.   Member States shall ensure that consumers and other interested parties are given an opportunity to submit observations on product compliance to the competent authorities.

Article 4

Marking and declaration of conformity

1.   Before an EuP covered by implementing measures is placed on the market and/or put into service, a CE conformity marking shall be affixed and a declaration of conformity issued whereby the manufacturer or its authorised representative ensures and declares that the EuP complies with all relevant provisions of the applicable implementing measure.

2.   The CE conformity marking consists of the initials 'CE' as shown in Annex III.

3.   The declaration of conformity shall contain the elements specified in Annex VI and shall refer to the appropriate implementing measure.

4.   The affixing of markings on an EuP which are likely to mislead users as to the meaning or form of the CE marking shall be prohibited.

5.   Member States may require the information to be supplied pursuant to Annex I, Part 2 to be in their official language(s) when the EuP reaches the end user.

Member States shall also authorise the provision of this information in one or more other official Community language(s).

When applying the first subparagraph, Member States shall take into account in particular:

| (a) | whether the information can be supplied by harmonised symbols or recognised codes or other measures; |
| --- | --- |

(a)

whether the information can be supplied by harmonised symbols or recognised codes or other measures;

| (b) | the type of user anticipated for the EuP and the nature of the information which is to be provided. |
| --- | --- |

(b)

the type of user anticipated for the EuP and the nature of the information which is to be provided.

Article 5

Free movement

1.   Member States shall not prohibit, restrict or impede the placing on the market and/or putting into service, within their territories, on grounds of ecodesign requirements relating to those ecodesign parameters referred to in Annex I, part 1 which are covered by the applicable implementing measure, of an EuP that complies with all the relevant provisions of the applicable implementing measure and bears the CE marking in accordance with Article 4.

2.   Member States shall not prohibit, restrict or impede the placing on the market and/or putting into service, within their territories, of an EuP bearing the CE marking in accordance with Article 4 on grounds of ecodesign requirements relating to those ecodesign parameters referred to in Annex I, Part 1 for which the applicable implementing measure provides that no ecodesign requirement is necessary.

3.   Member States shall not prevent the display, for example at trade fairs, exhibitions and demonstrations, of EuPs which are not in conformity with the provisions of the applicable implementing measure, provided that there is a visible indication that they may not be placed on the market and/or put into service until brought into conformity.

Article 6

Safeguard clause

1.   Where a Member State ascertains that an EuP bearing the CE marking referred to in Article 4 and used in accordance with its intended use does not comply with all the relevant provisions of the applicable implementing measure, the manufacturer or its authorised representative shall be obliged to make the EuP comply with the provisions of the applicable implementing measure and/or with the CE marking and to end the infringement under conditions imposed by the Member State.

Where non-compliance continues, the Member State shall take a decision restricting or prohibiting the placing on the market and/or putting into service of the EuP in question or ensure that it is withdrawn from the market.

2.   Any decision by a Member State pursuant to this Directive which restricts or prohibits the placing on the market and/or the putting into service of an EuP shall state the grounds on which it is based.

Such decision shall be notified forthwith to the party concerned, who shall at the same time be informed of the legal remedies available under the laws in force in the Member State concerned and of the time limits to which such remedies are subject.

3.   The Member State shall immediately inform the Commission and the other Member States of any decision taken pursuant to paragraph 1, indicating the reasons therefor, and, in particular, whether non-compliance is due to:

| (a) | failure to satisfy the requirements of the applicable implementing measure; |
| --- | --- |

(a)

failure to satisfy the requirements of the applicable implementing measure;

| (b) | incorrect application of harmonised standards as referred to in Article 9(2); |
| --- | --- |

(b)

incorrect application of harmonised standards as referred to in Article 9(2);

| (c) | shortcomings in harmonised standards as referred to in Article 9(2). |
| --- | --- |

(c)

shortcomings in harmonised standards as referred to in Article 9(2).

4.   The Commission shall enter into consultation with the parties concerned without delay and may draw upon technical advice from independent external experts.

Following that consultation, the Commission shall immediately inform the Member State which took the decision and the other Member States of its views.

Where the Commission considers that the decision is unjustified, it shall immediately inform the Member States to that effect.

5.   Where the decision referred to in paragraph 1 is based on a shortcoming in a harmonised standard, the Commission shall immediately initiate the procedure set out in Article 9(2), (3) and (4). The Commission shall at the same time inform the Committee referred to in Article 15(1).

6.   The Member States and the Commission shall take the necessary measures to guarantee confidentiality with regard to information provided during that procedure, where justified.

7.   The decisions taken by Member States pursuant to this Article shall be made public, in a transparent way.

8.   The Commission's opinion on those decisions shall be published in the Official Journal of the European Union.

Article 7

Conformity assessment

1.   Before placing an EuP covered by implementing measures on the market and/or putting such an EuP into service, the manufacturer or its authorised representative shall ensure that an assessment of the EuP's conformity with all the relevant requirements of the applicable implementing measure is carried out.

2.   The conformity assessment procedures shall be specified by the implementing measures and shall leave to manufacturers the choice between the internal design control set out in Annex IV and the management system set out in Annex V. When duly justified and proportionate to the risk, the conformity assessment procedure shall be specified among relevant modules as described in Decision 93/465/EEC.

If an EuP covered by implementing measures is designed by an organisation registered in accordance with Regulation (EC) No 761/2001 of the European Parliament and of the Council of 19 March 2001 allowing voluntary participation by organisations in a Community eco-management and audit scheme (EMAS) (25) and the design function is included within the scope of that registration, the management system of that organisation shall be presumed to comply with the requirements of Annex V to this Directive.

If an EuP covered by implementing measures is designed by an organisation having a management system which includes the product design function and which is implemented in accordance with harmonised standards the reference numbers of which have been published in the Official Journal of the European Union, that management system shall be presumed to comply with the corresponding requirements of Annex V.

3.   After placing an EuP covered by implementing measures on the market or putting it into service, the manufacturer or its authorised representative shall keep relevant documents relating to the conformity assessment performed and declarations of conformity issued available for inspection by Member States for a period of 10 years after the last of that EuP has been manufactured.

The relevant documents shall be made available within 10 days upon receipt of a request by the competent authority of a Member State.

4.   Documents relating to the conformity assessment and declaration of conformity referred to in Article 4 shall be drawn up in one of the official languages of the Community.

Article 8

Presumption of conformity

1.   Member States shall regard an EuP bearing the CE marking referred to in Article 4 as conforming to the relevant provisions of the applicable implementing measure.

2.   Member States shall regard an EuP for which harmonised standards have been applied, the reference numbers of which have been published in the Official Journal of the European Union, as conforming to all the relevant requirements of the applicable implementing measure to which such standards relate.

3.   EuPs which have been awarded the Community eco-label pursuant to Regulation (EC) No 1980/2000 shall be presumed to comply with the ecodesign requirements of the applicable implementing measure insofar as those requirements are met by the eco-label.

4.   For the purposes of the presumption of conformity in the context of this Directive, the Commission, acting in accordance with the procedure referred to in Article 15(2), may decide that other eco-labels fulfil equivalent conditions to the Community eco-label pursuant to Regulation (EC) No 1980/2000. EuPs which have been awarded such other eco-labels shall be presumed to comply with the ecodesign requirements of the applicable implementing measure, insofar as those requirements are met by that eco-label.

Article 9

Harmonised standards

1.   Member States shall, to the extent possible, ensure that appropriate measures are taken to enable interested parties to be consulted at national level on the process of preparing and monitoring harmonised standards.

2.   Where a Member State or the Commission considers that harmonised standards the application of which is presumed to satisfy specific provisions of an applicable implementing measure do not entirely satisfy those provisions the Member State concerned or the Commission shall inform the Standing Committee set up under Article 5 of Directive 98/34/EC to that effect, giving the reasons. The Committee shall issue an opinion as a matter of urgency.

3.   In the light of that Committee's opinion, the Commission shall decide to publish, not to publish, to publish with restriction, to maintain or to withdraw the references to the harmonised standards concerned in the Official Journal of the European Union.

4.   The Commission shall inform the European standardisation body concerned and, if necessary, issue a new mandate with a view to revision of the harmonised standards concerned.

Article 10

Requirements for components and sub-assemblies

Implementing measures may require manufacturers or their authorised representatives placing components and sub-assemblies on the market and/or putting them into service to provide the manufacturer of an EuP covered by implementing measures with relevant information on the material composition and the consumption of energy, materials and/or resources of the components or sub-assemblies.

Article 11

Administrative cooperation and exchange of information

1.   Member States shall ensure that appropriate measures are taken in order to encourage the authorities responsible for implementing this Directive to cooperate with each other and provide each other and the Commission with information in order to assist the operation of this Directive and in particular, assist in the implementation of Article 6.

The administrative cooperation and exchange of information shall take utmost advantage of electronic means of communication and may be supported by relevant Community programmes.

Member States shall inform the Commission of the authorities responsible for applying this Directive.

2.   The precise nature and structure of the exchange of information between the Commission and Member States shall be decided in accordance with the procedure referred to in Article 15(2).

3.   The Commission shall take appropriate measures in order to encourage and contribute to the cooperation between Member States referred to in this Article.

Article 12

Implementing measures

1.   The Commission, acting in accordance with the procedure referred to in Article 15(2), shall adopt implementing measures.

2.   For an EuP to be covered by an implementing measure it shall meet all the following criteria:

| (a) | the EuP shall have a volume of sales and trade of more than 200 000 units a year within the Community according to most recently available figures; |
| --- | --- |

(a)

the EuP shall have a volume of sales and trade of more than 200 000 units a year within the Community according to most recently available figures;

| (b) | the EuP shall, considering the quantities placed on the market and/or put into service, have a significant environmental impact within the Community, as specified in Community strategic priorities as set out in Decision No 1600/2002/EC; |
| --- | --- |

(b)

the EuP shall, considering the quantities placed on the market and/or put into service, have a significant environmental impact within the Community, as specified in Community strategic priorities as set out in Decision No 1600/2002/EC;

| (c) | the EuP shall present significant potential for improvement in terms of its environmental impact without entailing excessive costs. In determining whether this criterion is met, the following parameters shall apply:






  — | the absence of other relevant Community legislation; |
| --- | --- | --- |

(c)

the EuP shall present significant potential for improvement in terms of its environmental impact without entailing excessive costs. In determining whether this criterion is met, the following parameters shall apply:

—

the absence of other relevant Community legislation;

| — | a failure of market forces to address the issue; |
| --- | --- |

—

a failure of market forces to address the issue;

| — | a wide disparity in the environmental performance of EuPs available on the market with equivalent functionality. |
| --- | --- |

—

a wide disparity in the environmental performance of EuPs available on the market with equivalent functionality.

3.   In considering whether to prepare a draft implementing measure the Commission shall take into account any views expressed by the Committee referred to in Article 15 and shall further take into account:

| (a) | Community environmental priorities, such as those set out in Decision No 1600/2002/EC or in the Commission's European Climate Change Programme (ECCP); |
| --- | --- |

(a)

Community environmental priorities, such as those set out in Decision No 1600/2002/EC or in the Commission's European Climate Change Programme (ECCP);

| (b) | relevant self-regulation, such as voluntary agreements or other measures taken by industry. |
| --- | --- |

(b)

relevant self-regulation, such as voluntary agreements or other measures taken by industry.

4.   In preparing a draft implementing measure the Commission shall:

| (a) | consider the life cycle of the EuP; |
| --- | --- |

(a)

consider the life cycle of the EuP;

| (b) | carry out an assessment, which will consider the impact on environment, consumers and manufacturers, including SMEs, in terms of competitiveness, innovation, market access and costs and benefits; |
| --- | --- |

(b)

carry out an assessment, which will consider the impact on environment, consumers and manufacturers, including SMEs, in terms of competitiveness, innovation, market access and costs and benefits;

| (c) | take into account existing national environmental legislation that Member States consider relevant; |
| --- | --- |

(c)

take into account existing national environmental legislation that Member States consider relevant;

| (d) | carry out appropriate consultation with stakeholders; |
| --- | --- |

(d)

carry out appropriate consultation with stakeholders;

| (e) | prepare an explanatory memorandum of the draft implementing measure based on the assessment referred to in subparagraph (b); |
| --- | --- |

(e)

prepare an explanatory memorandum of the draft implementing measure based on the assessment referred to in subparagraph (b);

| (f) | set implementing date(s), any staged or transitional measure or periods, taking into account in particular possible impacts on SMEs or on specific product groups manufactured primarily by SMEs. |
| --- | --- |

(f)

set implementing date(s), any staged or transitional measure or periods, taking into account in particular possible impacts on SMEs or on specific product groups manufactured primarily by SMEs.

5.   Implementing measures shall meet all the following criteria:

| (a) | there shall be no significant negative impact on the functionality of the product, from the perspective of the user; |
| --- | --- |

(a)

there shall be no significant negative impact on the functionality of the product, from the perspective of the user;

| (b) | health, safety and the environment shall not be adversely affected; |
| --- | --- |

(b)

health, safety and the environment shall not be adversely affected;

| (c) | there shall be no significant negative impact on consumers in particular as regards the affordability and the life cycle cost of the product; |
| --- | --- |

(c)

there shall be no significant negative impact on consumers in particular as regards the affordability and the life cycle cost of the product;

| (d) | there shall be no significant negative impact on manufacturers' competitiveness, including on markets outside the Community; |
| --- | --- |

(d)

there shall be no significant negative impact on manufacturers' competitiveness, including on markets outside the Community;

| (e) | in principle, the setting of an ecodesign requirement shall not have the consequence of imposing proprietary technology on manufacturers; |
| --- | --- |

(e)

in principle, the setting of an ecodesign requirement shall not have the consequence of imposing proprietary technology on manufacturers;

| (f) | no excessive administrative burden shall be imposed on manufacturers. |
| --- | --- |

(f)

no excessive administrative burden shall be imposed on manufacturers.

6.   Implementing measures shall lay down ecodesign requirements in accordance with Annex I and/or Annex II.

Specific ecodesign requirements shall be introduced for selected environmental aspects which have a significant environmental impact.

Implementing measures may also provide that no ecodesign requirement is necessary for certain specified ecodesign parameters referred to in Annex I part 1.

7.   The requirements shall be formulated so as to ensure that market surveillance authorities can verify the conformity of the EuP with the requirements of the implementing measure. The implementing measure shall specify whether verification can be achieved directly on the EuP or on the basis of the technical documentation.

8.   Implementing measures shall include the elements listed in Annex VII.

9.   Relevant studies and analyses used by the Commission in preparing implementing measures should be made publicly available.

10.   Where appropriate, an implementing measure laying down ecodesign requirements shall be accompanied by guidelines, to be adopted by the Commission in accordance with Article 15(2), on the balancing of the various environmental aspects.

Article 13

Working plan

1.   In accordance with the criteria set out in Article 12 and having consulted the Consultation Forum referred to in Article 14, the Commission shall not later than ... (26) establish a working plan which shall be made publicly available.

The working plan shall set out for the following three years an indicative list of product groups which will be considered as priorities for the adoption of implementing measures.

The working plan shall be amended periodically by the Commission after consultation with the Consultation Forum.

2.   However, during the transitional period, while the first working plan referred to in paragraph 1 is being established, and in accordance with the procedure laid down in Article 15(2), the criteria set out in Article 12 and after consulting the Consultation Forum, the Commission may adopt implementing measures starting with those products which have been identified by the ECCP as offering a high potential for cost-effective reduction of greenhouse gas emissions.

Article 14

Consultation Forum

The Commission shall ensure that, in the conduct of its activities it observes, in respect of each implementing measure, a balanced participation of Member States' representatives and all interested parties concerned with the product/product group in question, such as industry, including SMEs and craft industry, trade unions, traders, retailers, importers, environmental protection groups and consumer organisations. These parties shall meet in a Consultation Forum. The rules of procedure of the Forum shall be established by the Commission.

Article 15

Committee procedure

1.   The Commission shall be assisted by a Committee.

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

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

3.   The Committee shall adopt its Rules of Procedure.

Article 16

Penalties

The Member States shall determine the penalties applicable to breaches of the national provisions adopted pursuant to this Directive. The penalties shall be effective, proportionate and dissuasive.

Article 17

Amendments

1.   Directive 92/42/EEC is hereby amended as follows:

| (1) | Article 6 shall be deleted. |
| --- | --- |

(1)

Article 6 shall be deleted.

| (2) | The following Article shall be inserted:
  ‘Article 10a
  This Directive constitutes an implementing measure within the meaning of Article 12 of Directive 2005/.../EC of ... establishing ... (27)
   (28), with regard to energy efficiency during use, in accordance with that Directive, and may be amended or repealed in accordance with Article 15(2) of Directive 2005/.../EC (28). |
| --- | --- |

(2)

The following Article shall be inserted:

‘Article 10a

This Directive constitutes an implementing measure within the meaning of Article 12 of Directive 2005/.../EC of ... establishing ... (27)
   (28), with regard to energy efficiency during use, in accordance with that Directive, and may be amended or repealed in accordance with Article 15(2) of Directive 2005/.../EC (28).

| (3) | Annex I, section 2, shall be deleted. |
| --- | --- |

(3)

Annex I, section 2, shall be deleted.

| (4) | Annex II shall be deleted. |
| --- | --- |

(4)

Annex II shall be deleted.

2.   Directive 96/57/EC is hereby amended as follows:

The following Article shall be inserted:

‘Article 9a

This Directive constitutes an implementing measure within the meaning of Article 12 of Directive 2005/.../EC of ... establishing (29)
   (28), with regard to energy efficiency during use, in accordance with that Directive, and may be amended or repealed in accordance with Article 15(2) of Directive 2005/.../EC (28).

3.   Directive 2000/55/EC is hereby amended as follows:

The following Article shall be inserted:

‘Article 9a:

This Directive constitutes an implementing measure within the meaning of Article 12 of Directive 2005/.../EC of ... establishing ... (30)
   (31), with regard to energy efficiency during use, in accordance with that Directive, and may be amended or repealed in accordance with Article 15(2) of Directive 2005/.../EC (31).

Article 18

Repeals

Directives 78/170/EEC and 86/594/EEC are repealed. Member States may continue to apply existing national measures adopted under Directive 86/594/EEC until such time as implementing measures for the products concerned are adopted under this Directive.

Article 19

Review

Not later than ... (32) the Commission shall review the effectiveness of this Directive and of its implementing measures, the threshold for implementing measures, market surveillance mechanisms and any relevant self regulation stimulated, after consultation of the Consultation Forum referred to in Article 14, and, as appropriate, present proposals to the European Parliament and the Council for amending this Directive.

32

Article 20

Confidentiality

Requirements relating to the supply of information referred to in Article 10 and Annex I, part 2, by the manufacturer and/or its authorised representative shall be proportionate and shall take into account the legitimate confidentiality of commercially sensitive information.

Article 21

Implementation

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before ... (33). They shall forthwith inform the Commission thereof.

33

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 22

Entry into force

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

Official Journal of the European Union

Article 23

Addressees

This Directive is addressed to the Member States.

Done at Brussels, ...

For the European Parliament

The President

...

For the Council

The President

...

---

(1)  OJ C 112, 30.4.2004, p. 25.

1

(2)  Opinion of the European Parliament of 20 April 2004 (OJ C 104 E, 30.4.2004), Council Common Position of 29 November 2004 and Position of the European Parliament of ... (not yet published in the Official Journal).

2

(3)  OJ L 242, 10.9.2002, p. 1.

3

(4)  OJ L 220, 30.8.1993, p. 23.

4

(5)  OJ C 136, 4.6.1985, p. 1.

5

(6)  OJ C 141, 19.5.2000, p.1.

6

(7)  OJ L 297, 13.10.1992, p. 16. Directive as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1).

7

(8)  OJ L 237, 21.9.2000, p. 1.

8

(9)  OJ L 332, 15.12.2001, p. 1.

9

(10)  OJ L 37, 13.2.2003, p. 24. Directive as last amended by Directive 2003/108/EC (OJ L 345, 31.12.2003, p. 106).

10

(11)  OJ L 37, 13.2.2003, p. 19.

11

(12)  OJ L 262, 27.9.1976, p. 201. Directive as last amended by Commission Directive 2004/98/EC (OJ L 305, 1.10.2004, p. 63).

12

(13)  OJ L 167, 22.6.1992, p. 17. Directive as last amended by Directive 2004/8/EC of the European Parliament and of the Council (OJ L 52, 21.2.2004, p. 50).

13

(14)  OJ L 236, 18.9.1996, p. 36.

14

(15)  OJ L 279, 1.11.2000, p. 33.

15

(16)  OJ L 52, 23.2.1978, p. 32. Directive as amended by Directive 82/885/EEC (OJ L 378, 31.12.1982, p. 19).

16

(17)  OJ L 196, 26.7.1990, p. 15. Directive as amended by Directive 93/68/EEC (OJ L 220, 30.8.1993, p. 1).

17

(18)  OJ L 1, 4.1.2003, p. 65.

18

(19)  OJ L 344, 6.12.1986, p. 24. Directive as amended by Council Regulation (EC) No 807/2003 (OJ L 122, 16.5.2003, p. 36)

19

(20)  OJ L 184, 17.07.1999, p. 23.

20

(21)  OJ C 321, 31.12.2003, p. 1.

21

(22)  OJ L 194, 25.7.1975, p. 39. Directive as last amended by Regulation (EC) No 1882/2003.

22

(23)  OJ L 377, 31.12.1991, p. 20. Directive as amended by Directive 94/31/EC (OJ L 168, 2.7.1994, p. 28).

23

(24)  OJ L 204, 29.7.1998, p. 37. Directive as last amended by the 2003 Act of Accession.

24

(25)  OJ L 114, 24.4.2001, p. 1.

25

(26)  Two years after adoption of this Directive.

26

(27)  OJ L...’

27

(28)  This Directive.

28

(29)  OJ L...’

29

(30)  OJ L...’

30

(31)  This Directive.

31

(32)  Five years after adoption of this Directive.

32

(33)  24 months after the entry into force of this Directive.

33

---

ANNEX I

METHOD FOR SETTING GENERIC ECODESIGN REQUIREMENTS

(referred to in Article 12)

Generic ecodesign requirements aim at improving the environmental performance of EuPs, focusing on significant environmental aspects thereof without setting limit values. The Commission shall, when preparing a draft implementing measure to be submitted to the Committee referred to in Article 15, identify significant environmental aspects which shall be specified in the implementing measure.

In preparing implementing measures laying down generic ecodesign requirements pursuant to Article 12 the Commission will identify, as appropriate to the EuP covered by the implementing measure, the relevant ecodesign parameters from among those listed in part 1, the information supply requirements from among those listed in part 2 and the requirements for the manufacturer listed in part 3.

Part 1.   Ecodesign parameters for EuPs

| 1.1. | In so far as they relate to product design, significant environmental aspects are identified with reference to the following phases of the lifecycle of the product:






  (a) | raw material selection and use; |
| --- | --- | --- |

1.1.

In so far as they relate to product design, significant environmental aspects are identified with reference to the following phases of the lifecycle of the product:

(a)

raw material selection and use;

| (b) | manufacturing; |
| --- | --- |

(b)

manufacturing;

| (c) | packaging, transport, and distribution; |
| --- | --- |

(c)

packaging, transport, and distribution;

| (d) | installation and maintenance; |
| --- | --- |

(d)

installation and maintenance;

| (e) | use; |
| --- | --- |

(e)

use;

| (f) | end-of-life, meaning the state of an EuP having reached the end of its first use until its final disposal. |
| --- | --- |

(f)

end-of-life, meaning the state of an EuP having reached the end of its first use until its final disposal.

| 1.2. | For each phase, the following environmental aspects are to be assessed where relevant:






  (a) | predicted consumption of materials, of energy and of other resources such as fresh water; |
| --- | --- | --- |

1.2.

For each phase, the following environmental aspects are to be assessed where relevant:

(a)

predicted consumption of materials, of energy and of other resources such as fresh water;

| (b) | anticipated emissions to air, water or soil; |
| --- | --- |

(b)

anticipated emissions to air, water or soil;

| (c) | anticipated pollution through physical effects such as noise, vibration, radiation, electromagnetic fields; |
| --- | --- |

(c)

anticipated pollution through physical effects such as noise, vibration, radiation, electromagnetic fields;

| (d) | expected generation of waste material; |
| --- | --- |

(d)

expected generation of waste material;

| (e) | possibilities for reuse, recycling and recovery of materials and/or of energy, taking into account Directive 2002/96/EC. |
| --- | --- |

(e)

possibilities for reuse, recycling and recovery of materials and/or of energy, taking into account Directive 2002/96/EC.

| 1.3. | In particular, the following parameters will be used, as appropriate, and supplemented by others, where necessary, for evaluating the potential for improving the environmental aspects mentioned in the previous paragraph:






  (a) | weight and volume of the product; |
| --- | --- | --- |

1.3.

In particular, the following parameters will be used, as appropriate, and supplemented by others, where necessary, for evaluating the potential for improving the environmental aspects mentioned in the previous paragraph:

(a)

weight and volume of the product;

| (b) | use of materials issued from recycling activities; |
| --- | --- |

(b)

use of materials issued from recycling activities;

| (c) | consumption of energy, water and other resources throughout the life cycle; |
| --- | --- |

(c)

consumption of energy, water and other resources throughout the life cycle;

| (d) | use of substances classified as hazardous to health and/or the environment according to Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packing and labelling of dangerous substances (OJ 196, 16.8.1967, p. 1), as last amended by Commission Directive 2004/73/EC (OJ L 152, 30.4.2004, p. 1) and taking into account legislation on the marketing and use of specific substances, such as Directives 76/769/EEC or 2002/95/EC; |
| --- | --- |

(d)

use of substances classified as hazardous to health and/or the environment according to Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packing and labelling of dangerous substances (OJ 196, 16.8.1967, p. 1), as last amended by Commission Directive 2004/73/EC (OJ L 152, 30.4.2004, p. 1) and taking into account legislation on the marketing and use of specific substances, such as Directives 76/769/EEC or 2002/95/EC;

| (e) | quantity and nature of consumables needed for proper use and maintenance; |
| --- | --- |

(e)

quantity and nature of consumables needed for proper use and maintenance;

| (f) | ease for reuse and recycling as expressed through: number of materials and components used, use of standard components, time necessary for disassembly, complexity of tools necessary for disassembly, use of component and material coding standards for the identification of components and materials suitable for reuse and recycling (including marking of plastic parts in accordance with ISO standards), use of easily recyclable materials, easy access to valuable and other recyclable components and materials; easy access to components and materials containing hazardous substances; |
| --- | --- |

(f)

ease for reuse and recycling as expressed through: number of materials and components used, use of standard components, time necessary for disassembly, complexity of tools necessary for disassembly, use of component and material coding standards for the identification of components and materials suitable for reuse and recycling (including marking of plastic parts in accordance with ISO standards), use of easily recyclable materials, easy access to valuable and other recyclable components and materials; easy access to components and materials containing hazardous substances;

| (g) | incorporation of used components; |
| --- | --- |

(g)

incorporation of used components;

| (h) | avoidance of technical solutions detrimental to reuse and recycling of components and whole appliances; |
| --- | --- |

(h)

avoidance of technical solutions detrimental to reuse and recycling of components and whole appliances;

| (i) | extension of lifetime as expressed through: minimum guaranteed lifetime, minimum time for availability of spare parts, modularity, upgradeability, reparability; |
| --- | --- |

(i)

extension of lifetime as expressed through: minimum guaranteed lifetime, minimum time for availability of spare parts, modularity, upgradeability, reparability;

| (j) | amounts of waste generated and amounts of hazardous waste generated; |
| --- | --- |

(j)

amounts of waste generated and amounts of hazardous waste generated;

| (k) | emissions to air (greenhouse gases, acidifying agents, volatile organic compounds, ozone depleting substances, persistent organic pollutants, heavy metals, fine particulate and suspended particulate matter) without prejudice to Directive 97/68/EC of 16 December 1997 relating to measures against the emission of gaseous and particulate pollutants from internal combustion engines to be installed in non-road mobile machinery (OJ L 59, 27.2.1998, p. 1), as last amended by Directive 2004/26/EC of the European Parliament and of the Council (OJ L 146, 30.4.2004, p. 1); |
| --- | --- |

(k)

emissions to air (greenhouse gases, acidifying agents, volatile organic compounds, ozone depleting substances, persistent organic pollutants, heavy metals, fine particulate and suspended particulate matter) without prejudice to Directive 97/68/EC of 16 December 1997 relating to measures against the emission of gaseous and particulate pollutants from internal combustion engines to be installed in non-road mobile machinery (OJ L 59, 27.2.1998, p. 1), as last amended by Directive 2004/26/EC of the European Parliament and of the Council (OJ L 146, 30.4.2004, p. 1);

| (l) | emissions to water (heavy metals, substances with an adverse effect on the oxygen balance, persistent organic pollutants); |
| --- | --- |

(l)

emissions to water (heavy metals, substances with an adverse effect on the oxygen balance, persistent organic pollutants);

| (m) | emissions to soil (especially leakage and spills of dangerous substances during the use phase of the product, and the potential for leaching upon its disposal as waste). |
| --- | --- |

(m)

emissions to soil (especially leakage and spills of dangerous substances during the use phase of the product, and the potential for leaching upon its disposal as waste).

Part 2.   Requirements relating to the supply of information

Implementing measures may require information to be supplied by the manufacturer that may influence the way the EuP is handled, used or recycled by parties other than the manufacturer. This information may include, where applicable:

| — | information from the designer relating to the manufacturing process; |
| --- | --- |

—

information from the designer relating to the manufacturing process;

| — | information for consumers on the significant environmental characteristics and performance of a product, accompanying the product when it is placed on the market to allow consumers to compare these aspects of the products; |
| --- | --- |

—

information for consumers on the significant environmental characteristics and performance of a product, accompanying the product when it is placed on the market to allow consumers to compare these aspects of the products;

| — | information for consumers on how to install, use and maintain the product in order to minimise its impact on the environment and to ensure optimal life-expectancy, as well as on how to return the product at end-of-life, and, where appropriate, information on the period of availability of spare parts and the possibilities of upgrading products; |
| --- | --- |

—

information for consumers on how to install, use and maintain the product in order to minimise its impact on the environment and to ensure optimal life-expectancy, as well as on how to return the product at end-of-life, and, where appropriate, information on the period of availability of spare parts and the possibilities of upgrading products;

| — | information for treatment facilities concerning disassembly, recycling, or disposal at end-of-life. |
| --- | --- |

—

information for treatment facilities concerning disassembly, recycling, or disposal at end-of-life.

Information should be given on the product itself wherever possible.

This information will take into account obligations under other Community legislation, such as Directive 2002/96/EC.

Part 3.   Requirements for the manufacturer

| 1. | Focusing on the environmental aspects identified in the implementing measure as capable of being influenced in a substantial manner through product design, manufacturers of EuPs will be required to perform an assessment of the EuP model throughout its lifecycle, based upon realistic assumptions about normal conditions and purposes of use.
  On the basis of this assessment manufacturers will establish the EuP's ecological profile. It will be based on environmentally relevant product characteristics and inputs/outputs throughout the product life cycle expressed in physical quantities that can be measured. |
| --- | --- |

1.

Focusing on the environmental aspects identified in the implementing measure as capable of being influenced in a substantial manner through product design, manufacturers of EuPs will be required to perform an assessment of the EuP model throughout its lifecycle, based upon realistic assumptions about normal conditions and purposes of use.

On the basis of this assessment manufacturers will establish the EuP's ecological profile. It will be based on environmentally relevant product characteristics and inputs/outputs throughout the product life cycle expressed in physical quantities that can be measured.

| 2. | Manufacturers will make use of this assessment to evaluate alternative design solutions and the achieved environmental performance of the product against benchmarks.
  The benchmarks will be identified by the Commission in the implementing measure on the basis of information gathered during the preparation of the measure.
  The choice of a specific design solution will achieve a reasonable balance between the various environmental aspects and between environmental aspects and other relevant considerations, such as safety and health, technical requirements for functionality, quality, and performance, and economic aspects, including manufacturing costs and marketability, while complying with all relevant legislation. |
| --- | --- |

2.

Manufacturers will make use of this assessment to evaluate alternative design solutions and the achieved environmental performance of the product against benchmarks.

The benchmarks will be identified by the Commission in the implementing measure on the basis of information gathered during the preparation of the measure.

The choice of a specific design solution will achieve a reasonable balance between the various environmental aspects and between environmental aspects and other relevant considerations, such as safety and health, technical requirements for functionality, quality, and performance, and economic aspects, including manufacturing costs and marketability, while complying with all relevant legislation.

---

ANNEX II

METHOD FOR SETTING SPECIFIC ECODESIGN REQUIREMENTS

(Referred to in Article 12)

Specific ecodesign requirements aim at improving a selected environmental aspect of the product. They may take the form of requirements for reduced consumption of a given resource, such as a limit on the use of a resource in the various stages of an EuP's life cycle, as appropriate (such as a limit on water consumption in the use phase or on the quantities of a given material incorporated in the product or a requirement for minimum quantities of recycled material).

In preparing implementing measures laying down specific ecodesign requirements pursuant to Article 12, the Commission will identify, as appropriate to the EuP covered by the implementing measure, the relevant ecodesign parameters from among those referred to in Annex I, part 1, and set the levels of these requirements, in accordance with the procedure referred to in Article 15(2), as follows:

| 1. | A technical, environmental and economic analysis will select a number of representative models of the EuP in question on the market and identify the technical options for improving the environmental performance of the product, keeping sight of the economic viability of the options and avoiding any significant loss of performance or of usefulness for consumers.
  The technical, environmental and economic analysis will also identify, for the environmental aspects under consideration, the best-performing products and technology available on the market.
  On the basis of this analysis and taking into account economic and technical feasibility as well as potential for improvement, concrete measures are taken with a view to reducing the product's environmental impact.
  Concerning energy consumption in use, the level of energy efficiency or consumption will be set aiming at the life cycle cost minimum to end users for representative EuP models, taking into account the consequences on other environmental aspects. The life cycle cost analysis method uses a real discount rate on the basis of data provided from the European Central Bank and a realistic lifetime for the EuP; it is based on the sum of the variations in purchase price (resulting from the variations in industrial costs) and in operating expenses, which result from the different levels of technical improvement options, discounted over the lifetime of the representative EuP models considered. The operating expenses cover primarily energy consumption and additional expenses in other resources (such as water or detergent).
  A sensitivity analysis covering the relevant factors (such as the price of energy or other resource, the cost of raw materials or production costs, discount rates) and, where appropriate, external environmental costs, will be carried out to check if there are significant changes and if the overall conclusions are reliable. The requirement will be adapted accordingly.
  A similar methodology could be applied to other resources such as water. |
| --- | --- |

1.

A technical, environmental and economic analysis will select a number of representative models of the EuP in question on the market and identify the technical options for improving the environmental performance of the product, keeping sight of the economic viability of the options and avoiding any significant loss of performance or of usefulness for consumers.

The technical, environmental and economic analysis will also identify, for the environmental aspects under consideration, the best-performing products and technology available on the market.

On the basis of this analysis and taking into account economic and technical feasibility as well as potential for improvement, concrete measures are taken with a view to reducing the product's environmental impact.

Concerning energy consumption in use, the level of energy efficiency or consumption will be set aiming at the life cycle cost minimum to end users for representative EuP models, taking into account the consequences on other environmental aspects. The life cycle cost analysis method uses a real discount rate on the basis of data provided from the European Central Bank and a realistic lifetime for the EuP; it is based on the sum of the variations in purchase price (resulting from the variations in industrial costs) and in operating expenses, which result from the different levels of technical improvement options, discounted over the lifetime of the representative EuP models considered. The operating expenses cover primarily energy consumption and additional expenses in other resources (such as water or detergent).

A sensitivity analysis covering the relevant factors (such as the price of energy or other resource, the cost of raw materials or production costs, discount rates) and, where appropriate, external environmental costs, will be carried out to check if there are significant changes and if the overall conclusions are reliable. The requirement will be adapted accordingly.

A similar methodology could be applied to other resources such as water.

| 2. | For the development of the technical, environmental and economic analyses, information available in the framework of other Community activities could be used.
  The same applies for information available from existing programmes applied in other parts of the world for setting the specific ecodesign requirement of EuPs traded with the EU's economic partners. |
| --- | --- |

2.

For the development of the technical, environmental and economic analyses, information available in the framework of other Community activities could be used.

The same applies for information available from existing programmes applied in other parts of the world for setting the specific ecodesign requirement of EuPs traded with the EU's economic partners.

| 3. | The date of entry into force of the requirement will take the redesign cycle for the product into account. |
| --- | --- |

3.

The date of entry into force of the requirement will take the redesign cycle for the product into account.

---

ANNEX III

CE MARKING

(Referred to in Article 4(2))

Image

The CE marking must have a height of at least 5 mm. If the CE marking is reduced or enlarged the proportions given in the above graduated drawing must be respected.

The CE marking must be affixed to the EuP. Where this is not possible, it must be affixed to the packaging and to the accompanying documents.

---

ANNEX IV

INTERNAL DESIGN CONTROL

(Referred to in Article 7)

| 1. | This Annex describes the procedure whereby the manufacturer or its authorised representative who carries out the obligations laid down in section 2 of this Annex ensures and declares that the EuP satisfies the relevant requirements of the applicable implementing measure. The declaration of conformity may cover one or more products and must be kept by the manufacturer. |
| --- | --- |

1.

This Annex describes the procedure whereby the manufacturer or its authorised representative who carries out the obligations laid down in section 2 of this Annex ensures and declares that the EuP satisfies the relevant requirements of the applicable implementing measure. The declaration of conformity may cover one or more products and must be kept by the manufacturer.

| 2. | A technical documentation file making possible an assessment of the conformity of the EuP with the requirements of the applicable implementing measure will be compiled by the manufacturer.
  The documentation will specify, in particular:






  (a) | a general description of the EuP and of its intended use; |
| --- | --- | --- |

2.

A technical documentation file making possible an assessment of the conformity of the EuP with the requirements of the applicable implementing measure will be compiled by the manufacturer.

The documentation will specify, in particular:

(a)

a general description of the EuP and of its intended use;

| (b) | the results of relevant environmental assessment studies carried out by the manufacturer, and/or references to environmental assessment literature or case studies, which are used by the manufacturer in evaluating, documenting and determining product design solutions; |
| --- | --- |

(b)

the results of relevant environmental assessment studies carried out by the manufacturer, and/or references to environmental assessment literature or case studies, which are used by the manufacturer in evaluating, documenting and determining product design solutions;

| (c) | the ecological profile, if required by the implementing measure; |
| --- | --- |

(c)

the ecological profile, if required by the implementing measure;

| (d) | elements of the product design specification relating to environmental design aspects of the product; |
| --- | --- |

(d)

elements of the product design specification relating to environmental design aspects of the product;

| (e) | a list of the appropriate standards referred to in Article 9, applied in full or in part, and a description of the solutions adopted to meet the requirements of the applicable implementing measure where the standards referred to in Article 9 have not been applied or where these standards do not cover entirely the requirements of the applicable implementing measure; |
| --- | --- |

(e)

a list of the appropriate standards referred to in Article 9, applied in full or in part, and a description of the solutions adopted to meet the requirements of the applicable implementing measure where the standards referred to in Article 9 have not been applied or where these standards do not cover entirely the requirements of the applicable implementing measure;

| (f) | a copy of the information concerning the environmental design aspects of the product provided in accordance with the requirements specified in Annex I, part 2; |
| --- | --- |

(f)

a copy of the information concerning the environmental design aspects of the product provided in accordance with the requirements specified in Annex I, part 2;

| (g) | the results of measurements on the ecodesign requirements carried out, including details of the conformity of these measurements as compared with the ecodesign requirements set out in the applicable implementing measure. |
| --- | --- |

(g)

the results of measurements on the ecodesign requirements carried out, including details of the conformity of these measurements as compared with the ecodesign requirements set out in the applicable implementing measure.

| 3. | The manufacturer must take all measures necessary to ensure that the product will be manufactured in compliance with the design specifications referred to in section 2 and with the requirements of the measure which apply to it. |
| --- | --- |

3.

The manufacturer must take all measures necessary to ensure that the product will be manufactured in compliance with the design specifications referred to in section 2 and with the requirements of the measure which apply to it.

---

ANNEX V

MANAGEMENT SYSTEM FOR ASSESSING CONFORMITY

(Referred to in Article 7)

| 1. | This Annex describes the procedure whereby the manufacturer who satisfies the obligations of section 2 of this Annex ensures and declares that the EuP satisfies the requirements of the applicable implementing measure. The declaration of conformity may cover one or more products and must be kept by the manufacturer. |
| --- | --- |

1.

This Annex describes the procedure whereby the manufacturer who satisfies the obligations of section 2 of this Annex ensures and declares that the EuP satisfies the requirements of the applicable implementing measure. The declaration of conformity may cover one or more products and must be kept by the manufacturer.

| 2. | A management system may be used for the conformity assessment of an EuP provided that the manufacturer implements the environmental elements specified in section 3 of this Annex. |
| --- | --- |

2.

A management system may be used for the conformity assessment of an EuP provided that the manufacturer implements the environmental elements specified in section 3 of this Annex.

| 3. | Environmental elements of the management system
  This section specifies the elements of a management system and the procedures by which the manufacturer can demonstrate that the EuP complies with the requirements of the applicable implementing measure.
  3.1.   The environmental product performance policy
  The manufacturer must be able to demonstrate conformity with the requirements of the applicable implementing measure. The manufacturer must also be able to provide a framework for setting and reviewing environmental product performance objectives and indicators with a view to improving the overall environmental product performance.
  All the measures adopted by the manufacturer to improve the overall environmental performance of and to establish the ecological profile of an EuP, if required by the implementing measure, through design and manufacturing, must be documented in a systematic and orderly manner in the form of written procedures and instructions.
  These procedures and instructions must contain, in particular, an adequate description of:






  — | the list of documents that must be prepared to demonstrate the EuP's conformity, and – if relevant – that have to be made available; |
| --- | --- | --- |

3.

This section specifies the elements of a management system and the procedures by which the manufacturer can demonstrate that the EuP complies with the requirements of the applicable implementing measure.

3.1.   The environmental product performance policy

The manufacturer must be able to demonstrate conformity with the requirements of the applicable implementing measure. The manufacturer must also be able to provide a framework for setting and reviewing environmental product performance objectives and indicators with a view to improving the overall environmental product performance.

All the measures adopted by the manufacturer to improve the overall environmental performance of and to establish the ecological profile of an EuP, if required by the implementing measure, through design and manufacturing, must be documented in a systematic and orderly manner in the form of written procedures and instructions.

These procedures and instructions must contain, in particular, an adequate description of:

—

the list of documents that must be prepared to demonstrate the EuP's conformity, and – if relevant – that have to be made available;

| — | the environmental product performance objectives and indicators and the organisational structure, responsibilities, powers of the management and allocation of resources with regard to their implementation and maintenance; |
| --- | --- |

—

the environmental product performance objectives and indicators and the organisational structure, responsibilities, powers of the management and allocation of resources with regard to their implementation and maintenance;

| — | the checks and tests to be carried out after manufacture to verify product performance against environmental performance indicators; |
| --- | --- |

—

the checks and tests to be carried out after manufacture to verify product performance against environmental performance indicators;

| — | procedures for controlling the required documentation and ensuring that it is kept up to date; |
| --- | --- |

—

procedures for controlling the required documentation and ensuring that it is kept up to date;

| — | the method of verifying the implementation and effectiveness of the environmental elements of the management system. |
| --- | --- |

—

the method of verifying the implementation and effectiveness of the environmental elements of the management system.

3.2.   Planning

The manufacturer will establish and maintain

| (a) | procedures for establishing the ecological profile of the product; |
| --- | --- |

(a)

procedures for establishing the ecological profile of the product;

| (b) | environmental product performance objectives and indicators, which consider technological options taking into account technical and economic requirements; |
| --- | --- |

(b)

environmental product performance objectives and indicators, which consider technological options taking into account technical and economic requirements;

| (c) | a programme for achieving these objectives. |
| --- | --- |

(c)

a programme for achieving these objectives.

3.3.   Implementation and documentation

| 3.3.1. | The documentation concerning the management system should cover the following, in particular:






  (a) | responsibilities and authorities will be defined and documented in order to ensure effective environmental product performance and reporting on its operation for review and improvement; |
| --- | --- | --- |

3.3.1.

The documentation concerning the management system should cover the following, in particular:

(a)

responsibilities and authorities will be defined and documented in order to ensure effective environmental product performance and reporting on its operation for review and improvement;

| (b) | documents will be established indicating the design control and verification techniques implemented and processes and systematic measures used when designing the product; |
| --- | --- |

(b)

documents will be established indicating the design control and verification techniques implemented and processes and systematic measures used when designing the product;

| (c) | the manufacturer will establish and maintain information to describe the core environmental elements of the management system and the procedures for controlling all documents required. |
| --- | --- |

(c)

the manufacturer will establish and maintain information to describe the core environmental elements of the management system and the procedures for controlling all documents required.

| 3.3.2. | The documentation concerning the EuP will specify, in particular:






  (a) | a general description of the EuP and of its intended use; |
| --- | --- | --- |

3.3.2.

The documentation concerning the EuP will specify, in particular:

(a)

a general description of the EuP and of its intended use;

| (b) | the results of relevant environmental assessment studies carried out by the manufacturer, and/or references to environmental assessment literature or case studies, which are used by the manufacturer in evaluating, documenting and determining product design solutions; |
| --- | --- |

(b)

the results of relevant environmental assessment studies carried out by the manufacturer, and/or references to environmental assessment literature or case studies, which are used by the manufacturer in evaluating, documenting and determining product design solutions;

| (c) | the ecological profile, if required by the implementing measure; |
| --- | --- |

(c)

the ecological profile, if required by the implementing measure;

| (d) | documents describing the results of measurements on the ecodesign requirements carried out including details of the conformity of these measurements as compared with the ecodesign requirements set out in the applicable implementing measure; |
| --- | --- |

(d)

documents describing the results of measurements on the ecodesign requirements carried out including details of the conformity of these measurements as compared with the ecodesign requirements set out in the applicable implementing measure;

| (e) | the manufacturer will establish specifications indicating, in particular, standards which have been applied; where standards referred to in Article 9 are not applied or where they do not cover entirely the requirements of the relevant implementing measure, the means used to ensure compliance; |
| --- | --- |

(e)

the manufacturer will establish specifications indicating, in particular, standards which have been applied; where standards referred to in Article 9 are not applied or where they do not cover entirely the requirements of the relevant implementing measure, the means used to ensure compliance;

| (f) | a copy of the information concerning the environmental design aspects of the product provided in accordance with the requirements specified in Annex I, part 2. |
| --- | --- |

(f)

a copy of the information concerning the environmental design aspects of the product provided in accordance with the requirements specified in Annex I, part 2.

3.4.   Checking and corrective action

| (a) | the manufacturer must take all measures necessary to ensure that the EuP is manufactured in compliance with its design specification and with the requirements of the implementing measure which applies to it; |
| --- | --- |

(a)

the manufacturer must take all measures necessary to ensure that the EuP is manufactured in compliance with its design specification and with the requirements of the implementing measure which applies to it;

| (b) | the manufacturer will establish and maintain procedures to investigate and respond to non-conformity, and implement changes in the documented procedures resulting from corrective action; |
| --- | --- |

(b)

the manufacturer will establish and maintain procedures to investigate and respond to non-conformity, and implement changes in the documented procedures resulting from corrective action;

| (c) | the manufacturer will carry out at least every three years a full internal audit of the management system with regard to its environmental elements. |
| --- | --- |

(c)

the manufacturer will carry out at least every three years a full internal audit of the management system with regard to its environmental elements.

---

ANNEX VI

DECLARATION OF CONFORMITY

(Referred to in Article 4(3))

The EC declaration of conformity must contain the following elements:

| 1. | the name and address of the manufacturer or of its authorised representative; |
| --- | --- |

1.

the name and address of the manufacturer or of its authorised representative;

| 2. | a description of the model sufficient for unambiguous identification; |
| --- | --- |

2.

a description of the model sufficient for unambiguous identification;

| 3. | where appropriate, the references of the harmonised standards applied; |
| --- | --- |

3.

where appropriate, the references of the harmonised standards applied;

| 4. | where appropriate, the other technical standards and specifications used; |
| --- | --- |

4.

where appropriate, the other technical standards and specifications used;

| 5. | where appropriate, the reference to other Community legislation providing for the affixing of the CE mark that is applied; |
| --- | --- |

5.

where appropriate, the reference to other Community legislation providing for the affixing of the CE mark that is applied;

| 6. | identification and signature of the person empowered to bind the manufacturer or its authorised representative. |
| --- | --- |

6.

identification and signature of the person empowered to bind the manufacturer or its authorised representative.

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ANNEX VII

CONTENTS OF THE IMPLEMENTING MEASURES

(Referred to in Article 12(8))

The implementing measure will specify, in particular:

| 1. | the exact definition of the type(s) of EuP(s) covered; |
| --- | --- |

1.

the exact definition of the type(s) of EuP(s) covered;

| 2. | the ecodesign requirement(s) for the EuP(s) covered, implementing date(s), staged or transitional measures or periods;






  — | in the case of generic ecodesign requirement(s), the relevant phases and aspects selected from those mentioned in Annex I, sections 1.1 and 1.2, accompanied by examples of parameters selected from those mentioned in Annex I, section 1.3 as guidance when evaluating improvements regarding identified environmental aspects; |
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2.

the ecodesign requirement(s) for the EuP(s) covered, implementing date(s), staged or transitional measures or periods;

—

in the case of generic ecodesign requirement(s), the relevant phases and aspects selected from those mentioned in Annex I, sections 1.1 and 1.2, accompanied by examples of parameters selected from those mentioned in Annex I, section 1.3 as guidance when evaluating improvements regarding identified environmental aspects;

| — | in the case of specific ecodesign requirement(s), its (their) level(s); |
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—

in the case of specific ecodesign requirement(s), its (their) level(s);

| 3. | the ecodesign parameters referred to in Annex I, part 1 relating to which no ecodesign requirement is necessary; |
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3.

the ecodesign parameters referred to in Annex I, part 1 relating to which no ecodesign requirement is necessary;

| 4. | the requirements on installation of the EuP where it has a direct relevance to the EuP's environmental performance considered; |
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4.

the requirements on installation of the EuP where it has a direct relevance to the EuP's environmental performance considered;

| 5. | the measurement standards and/or measurement methods to be used; when available, harmonised standards the reference numbers of which have been published in the Official Journal of the European Union will be used; |
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5.

the measurement standards and/or measurement methods to be used; when available, harmonised standards the reference numbers of which have been published in the Official Journal of the European Union will be used;

| 6. | the details for conformity assessment under Decision 93/465/EEC






  — | where the module(s) to be applied is (are) different from Module A; the factors leading to the selection of that specific procedure; |
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6.

the details for conformity assessment under Decision 93/465/EEC

—

where the module(s) to be applied is (are) different from Module A; the factors leading to the selection of that specific procedure;

| — | where relevant the criteria for approval and/or certification of the third parties; |
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—

where relevant the criteria for approval and/or certification of the third parties;

where different modules are laid down in other CE requirements for the same EuP, the module defined in the implementing measure will prevail for the requirement concerned;

| 7. | requirements on information to be provided by manufacturers or their authorised representatives to the authorities for enhanced market surveillance; |
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7.

requirements on information to be provided by manufacturers or their authorised representatives to the authorities for enhanced market surveillance;

| 8. | the duration of the transitional period during which Member States must permit the placing on the market and/or putting into service of EuPs which comply with the regulations in force in their territory on the date of adoption of the implementing measure; |
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8.

the duration of the transitional period during which Member States must permit the placing on the market and/or putting into service of EuPs which comply with the regulations in force in their territory on the date of adoption of the implementing measure;

| 9. | the date for the evaluation and possible revision of the implementing measure. |
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9.

the date for the evaluation and possible revision of the implementing measure.

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STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

| 1. | On 26 August 2003, the Commission presented a proposal based on Article 95 of the Treaty. |
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1.

On 26 August 2003, the Commission presented a proposal based on Article 95 of the Treaty.

| 2. | The Economic and Social Committee delivered its opinion (1) on 31 March 2004. |
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2.

The Economic and Social Committee delivered its opinion (1) on 31 March 2004.

| 3. | The European Parliament adopted its Opinion (2) at first reading on 20 April 2004, approving 78 amendments. The Commission made an oral presentation of its modified proposal on 27 April 2004. On 29 November 2004, the Council adopted its common position in accordance with Article 251 of the Treaty. |
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3.

The European Parliament adopted its Opinion (2) at first reading on 20 April 2004, approving 78 amendments. The Commission made an oral presentation of its modified proposal on 27 April 2004. On 29 November 2004, the Council adopted its common position in accordance with Article 251 of the Treaty.

II.   OBJECTIVE OF THE PROPOSAL

| 4. | The objective of this proposal is to create a comprehensive and coherent legislative framework for addressing eco-design requirements with the aim of:






  — | ensuring the free movement of energy-using products (EuP) within the EU; |
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4.

The objective of this proposal is to create a comprehensive and coherent legislative framework for addressing eco-design requirements with the aim of:

—

ensuring the free movement of energy-using products (EuP) within the EU;

| — | improving the overall environmental performance of these products and thereby contributing to the protection of the environment; |
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—

improving the overall environmental performance of these products and thereby contributing to the protection of the environment;

| — | contributing to the security of energy supply and enhancing the competitiveness of the EU economy. |
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—

contributing to the security of energy supply and enhancing the competitiveness of the EU economy.

The proposal applies in principle to any product, except means of transport for persons or goods, using energy to perform the function for which it is designed, manufactured and put on the market or into service, and covers all energy sources, although it is likely that only those using electricity, solid, liquid and gaseous fuel will be the subject of implementing measures.

III.   ANALYSIS OF THE COMMON POSITION

| 5. | The main changes introduced by the Council are as follows:






  — | Clarification that the objective of the proposed Directive (Article 1(4)) is without prejudice to Community waste management legislation and Community chemicals legislation, including Community legislation on fluorinated greenhouse gases. |
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5.

The main changes introduced by the Council are as follows:

—

Clarification that the objective of the proposed Directive (Article 1(4)) is without prejudice to Community waste management legislation and Community chemicals legislation, including Community legislation on fluorinated greenhouse gases.

| — | Definitions (Article 2): the common position specifies more clearly the scope of the proposal (definition 1) and the attribution of responsibility for the conformity of the EuP (definitions 6 and 7). |
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—

Definitions (Article 2): the common position specifies more clearly the scope of the proposal (definition 1) and the attribution of responsibility for the conformity of the EuP (definitions 6 and 7).

| — | Placing on the market (Article 3): the common position clarifies that Member States have to designate authorities responsible for market surveillance and its tasks. |
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—

Placing on the market (Article 3): the common position clarifies that Member States have to designate authorities responsible for market surveillance and its tasks.

| — | Free movement (Article 5): the current text makes clear that the EuP must comply with the eco-design parameters described in Annex I part 1 which are covered by the applicable implementing measure. |
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—

Free movement (Article 5): the current text makes clear that the EuP must comply with the eco-design parameters described in Annex I part 1 which are covered by the applicable implementing measure.

| — | Conformity assessment (Article 7 and Annex V): while maintaining the choice for a manufacturer between the internal design control (Annex IV) and the management system (Annex V), the latter has been amended with a view to keeping the possibility for manufacturers to use quality management systems for proving conformity, as long as they meet the requirements described in Annex V. |
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—

Conformity assessment (Article 7 and Annex V): while maintaining the choice for a manufacturer between the internal design control (Annex IV) and the management system (Annex V), the latter has been amended with a view to keeping the possibility for manufacturers to use quality management systems for proving conformity, as long as they meet the requirements described in Annex V.

| — | Presumption of conformity (Article 8): eco-labels which will be considered to fulfil conditions equivalent to the Community eco-label will be presumed to be in conformity with the requirements of the applicable implementing measures. |
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—

Presumption of conformity (Article 8): eco-labels which will be considered to fulfil conditions equivalent to the Community eco-label will be presumed to be in conformity with the requirements of the applicable implementing measures.

| — | Implementing measures (Article 12): while it is stated that the Commission shall adopt implementing measures, criteria and steps to be taken by the Commission when preparing implementing measures have been clarified and specified, i.e. as concerns the criteria that particular products must meet before they can be subject to implementing measures (Article 12(2)), in particular a minimum sales and trade volume threshold. |
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—

Implementing measures (Article 12): while it is stated that the Commission shall adopt implementing measures, criteria and steps to be taken by the Commission when preparing implementing measures have been clarified and specified, i.e. as concerns the criteria that particular products must meet before they can be subject to implementing measures (Article 12(2)), in particular a minimum sales and trade volume threshold.

| — | Working Plan (Article 13): in order to ensure transparency, the Commission shall establish a working plan which sets out an indicative list of products which could be subject to implementing measures as a priority, in particular those products which have been identified by the (European Climate Change Plan) ECCP as offering a high potential for cost-effective reduction of greenhouse gases. |
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—

Working Plan (Article 13): in order to ensure transparency, the Commission shall establish a working plan which sets out an indicative list of products which could be subject to implementing measures as a priority, in particular those products which have been identified by the (European Climate Change Plan) ECCP as offering a high potential for cost-effective reduction of greenhouse gases.

| — | Consultation Forum (Article 14): when envisaging to prepare an implementing measure with regard to a given product, the Commission has to ensure balanced participation of Member States' representatives and proper involvement of all parties concerned by this product. To this effect, the common position provides for the establishment of a consultation forum. |
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—

Consultation Forum (Article 14): when envisaging to prepare an implementing measure with regard to a given product, the Commission has to ensure balanced participation of Member States' representatives and proper involvement of all parties concerned by this product. To this effect, the common position provides for the establishment of a consultation forum.

| — | Review (Article 19): the common position provides for an evaluation of the effectiveness of the Directive and of the implementing measures which may have been adopted under this Directive within five years after the adoption of this Directive. |
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—

Review (Article 19): the common position provides for an evaluation of the effectiveness of the Directive and of the implementing measures which may have been adopted under this Directive within five years after the adoption of this Directive.

| — | Annex I, part 3 (Requirements for the manufacturer): the description of the requirements for the manufacturer endeavours to clarify the division of tasks between the parties involved. |
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—

Annex I, part 3 (Requirements for the manufacturer): the description of the requirements for the manufacturer endeavours to clarify the division of tasks between the parties involved.

| — | Annex VII (Contents of the implementing measures): it is now specified that implementing measures may also be subject to evaluation and revision. |
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—

Annex VII (Contents of the implementing measures): it is now specified that implementing measures may also be subject to evaluation and revision.

IV.   AMENDMENTS ACCEPTED

| 6. | Of the 78 Parliament amendments, the Council accepted the following 23, some of them in substance, partially or in principle.
  Recitals:

  Amendments 5 to 10: provide for further justification for a framework Directive on promoting eco-design of products in terms of environmental improvement and energy efficiency (recitals 2 to 7)

  Amendment 13: clarifies the need for consumers to be informed (recital 9)

  Amendment 16: specifies that priority should be given to energy efficiency in a way not detrimental to the integrated approach of the Directive (recital 11)

  Amendment 17 : confirms that commitments to Kyoto Protocol are without prejudice to the integrated approach (recital 12)

  Amendment 20: points out that proper involvement of all parties concerned is required (recital 13)

  Amendment 73 : refers to the Commission Communication's chapter dealing with the assessment of self-regulation by industry in the context of the Directive

  Amendment 23: highlights that eco-design should also be integrated in SMEs and very small firms (recital 17)

  Amendment 24: compliance of EuPs with eco-design requirements laid down in implementing measures will be awarded the ‘CE’ marking and associated information (recital 18).

  Amendment 25: exchange of information by appropriate means of communication should be facilitated (recital 22)

  Amendment 26: training and information on eco-design for small and medium-sized businesses may be considered in an appropriate way (recital 23)
  Articles:

  Amendment 35: the definition of ‘putting into service’ is identical to the one proposed by the EP (Article 2(5))

  Amendment 47: Article 3(2 and 3) takes on board a stricter description of obligations to ensure market surveillance as proposed by the EP

  Amendment 48: provides for allowing information on conformity to be supplied in one or more other official languages (Article 4(5))

  Amendment 59 : establishes a working plan that should set out an indicative list of products which will be considered as priorities for the adoption of implementing measures (Article 13)

  Amendment 63: provides for the creation of a Consultation Forum (Article 14), with a balanced representation of Member States and all relevant parties, to be consulted before the Committee established in the Directive

  Amendment 65 : establishes the review of the effectiveness of the Directive including implementing measures within five years after its adoption (Article 19)

  Amendment 66: introduces clarification with regard to the methods for setting generic eco-design requirements, including as concerns the role of the producer, and provides for a separate chapter covering information obligations (Annex I)

  Amendment 69: clarifies the procedure of the internal design control (Annex IV). |
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6.

Of the 78 Parliament amendments, the Council accepted the following 23, some of them in substance, partially or in principle.

Recitals:

Amendments 5 to 10: provide for further justification for a framework Directive on promoting eco-design of products in terms of environmental improvement and energy efficiency (recitals 2 to 7)

Amendment 13: clarifies the need for consumers to be informed (recital 9)

Amendment 16: specifies that priority should be given to energy efficiency in a way not detrimental to the integrated approach of the Directive (recital 11)

Amendment 17 : confirms that commitments to Kyoto Protocol are without prejudice to the integrated approach (recital 12)

Amendment 20: points out that proper involvement of all parties concerned is required (recital 13)

Amendment 73 : refers to the Commission Communication's chapter dealing with the assessment of self-regulation by industry in the context of the Directive

Amendment 23: highlights that eco-design should also be integrated in SMEs and very small firms (recital 17)

Amendment 24: compliance of EuPs with eco-design requirements laid down in implementing measures will be awarded the ‘CE’ marking and associated information (recital 18).

Amendment 25: exchange of information by appropriate means of communication should be facilitated (recital 22)

Amendment 26: training and information on eco-design for small and medium-sized businesses may be considered in an appropriate way (recital 23)

Articles:

Amendment 35: the definition of ‘putting into service’ is identical to the one proposed by the EP (Article 2(5))

Amendment 47: Article 3(2 and 3) takes on board a stricter description of obligations to ensure market surveillance as proposed by the EP

Amendment 48: provides for allowing information on conformity to be supplied in one or more other official languages (Article 4(5))

Amendment 59 : establishes a working plan that should set out an indicative list of products which will be considered as priorities for the adoption of implementing measures (Article 13)

Amendment 63: provides for the creation of a Consultation Forum (Article 14), with a balanced representation of Member States and all relevant parties, to be consulted before the Committee established in the Directive

Amendment 65 : establishes the review of the effectiveness of the Directive including implementing measures within five years after its adoption (Article 19)

Amendment 66: introduces clarification with regard to the methods for setting generic eco-design requirements, including as concerns the role of the producer, and provides for a separate chapter covering information obligations (Annex I)

Amendment 69: clarifies the procedure of the internal design control (Annex IV).

V.   AMENDMENTS NOT INTEGRATED

| 7. | The Council considered that amendments 1 to 4, 11, 12, 14, 15, 18, 19, 21, 22, 27, 29 to 34, 36 to 46, 49 to 58, 60 to 62, 64, 67 to 68, 70 to 72, 74 to 76 and 79 to 81 would either undermine the harmonisation aim of the Directive (e.g. 1, 2 and 61), would be inconsistent with the objective of the Directive or its legal base (e.g. 3, 4, 29, 31, 37, 50 to 52, 64, 67, 68 ), and decided therefore not to integrate them in its common position. The Commission has rejected the same amendments. |
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7.

The Council considered that amendments 1 to 4, 11, 12, 14, 15, 18, 19, 21, 22, 27, 29 to 34, 36 to 46, 49 to 58, 60 to 62, 64, 67 to 68, 70 to 72, 74 to 76 and 79 to 81 would either undermine the harmonisation aim of the Directive (e.g. 1, 2 and 61), would be inconsistent with the objective of the Directive or its legal base (e.g. 3, 4, 29, 31, 37, 50 to 52, 64, 67, 68 ), and decided therefore not to integrate them in its common position. The Commission has rejected the same amendments.

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(1)  OJ C 112, 30.4.2004, p. 25.

(2)  OJ C 104 E, 30.4.2004.

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