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I Information

Council

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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:

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:

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:

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:

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:

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:

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:

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:

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:

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:

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:

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:

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:

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

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:

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:

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:

(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:

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.

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.

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.

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.

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

...

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

(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).

(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).

(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.).

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

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

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

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

(9)  This Directive.

(10)  OJ L ... ’

(11)  This Directive.

(12)  OJ L ... ’

(13)  OJ L ... ’

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

(15)  This Directive.

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

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

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ANNEX I

COMMERCIAL PRACTICES WHICH ARE IN ALL CIRCUMSTANCES CONSIDERED UNFAIR

Misleading commercial practices

Aggressive commercial practices

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(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).

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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).

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(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.

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STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

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:

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:

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:

3.   Other innovations introduced by the Council

The other innovations introduced in the common position are:

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.

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(1)OJ C 104 E, 30.4.2004.

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

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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:

HAVE ADOPTED THIS REGULATION:

Article 1

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

Article 2

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

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

...

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

(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).

(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).

(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).

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

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

(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.

(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.

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

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...’.

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ANNEX I

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

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ANNEX II

The Annexes to Regulation (EEC) No 574/72 are hereby amended as follows:

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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:

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:

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.

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(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.

----

----

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:

HAVE ADOPTED THIS REGULATION

Article 1

Regulation (EEC) No 2913/92 is hereby amended as follows:

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.

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).

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.

(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).

(3)OJ L 302, 19.10.1992, p. 1. Regulation as last amended by the 2003 Act of Accession.

(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).

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

(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).

(7)OJ L 8, 12.1.2001, p. 1.’

(8)  the date of entry into force of this Regulation.

----

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:

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.

----

----

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:

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:

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:

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:

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:

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:

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:

4.   In preparing a draft implementing measure the Commission shall:

5.   Implementing measures shall meet all the following criteria:

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:

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.

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.

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.

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.

(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).

(3)OJ L 242, 10.9.2002, p. 1.

(4)OJ L 220, 30.8.1993, p. 23.

(5)OJ C 136, 4.6.1985, p. 1.

(6)OJ C 141, 19.5.2000, p.1.

(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).

(8)OJ L 237, 21.9.2000, p. 1.

(9)OJ L 332, 15.12.2001, p. 1.

(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).

(11)OJ L 37, 13.2.2003, p. 19.

(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).

(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).

(14)OJ L 236, 18.9.1996, p. 36.

(15)OJ L 279, 1.11.2000, p. 33.

(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).

(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).

(18)OJ L 1, 4.1.2003, p. 65.

(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)

(20)OJ L 184, 17.07.1999, p. 23.

(21)OJ C 321, 31.12.2003, p. 1.

(22)OJ L 194, 25.7.1975, p. 39. Directive as last amended by Regulation (EC) No 1882/2003.

(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).

(24)OJ L 204, 29.7.1998, p. 37. Directive as last amended by the 2003 Act of Accession.

(25)OJ L 114, 24.4.2001, p. 1.

(26)  Two years after adoption of this Directive.

(27)  OJ L...’

(28)  This Directive.

(29)  OJ L...’

(30)  OJ L...’

(31)  This Directive.

(32)  Five years after adoption of this Directive.

(33)  24 months after the entry into force of this Directive.

----

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

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 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

----

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:

----

ANNEX III

CE MARKING

(Referred to in Article 4(2))

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)

----

ANNEX V

MANAGEMENT SYSTEM FOR ASSESSING CONFORMITY

(Referred to in Article 7)

----

ANNEX VI

DECLARATION OF CONFORMITY

(Referred to in Article 4(3))

The EC declaration of conformity must contain the following elements:

----

ANNEX VII

CONTENTS OF THE IMPLEMENTING MEASURES

(Referred to in Article 12(8))

The implementing measure will specify, in particular:

----

STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

II.   OBJECTIVE OF THE PROPOSAL

III.   ANALYSIS OF THE COMMON POSITION

IV.   AMENDMENTS ACCEPTED

V.   AMENDMENTS NOT INTEGRATED

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(1)OJ C 112, 30.4.2004, p. 25.

(2)OJ C 104 E, 30.4.2004.

----