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II Preparatory Acts

European Economic and Social Committee

405th plenary session, 28 and 29 January 2004

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405TH PLENARY SESSION, 28 AND 29 JANUARY 2004

Opinion of the European Economic and Social Committee on the ‘Green Paper on the conversion of the Rome Convention of 1980 on the law applicable to contractual obligations into a Community instrument and its modernisation’

(COM(2002) 654 final)

On 14 January 2003 the Commission decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-mentioned Green Paper.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 12 November 2003. The rapporteur was Mr Pegado Liz.

At its 405th plenary session of 28 and 29 January 2004 (meeting of 29 January), the Economic and Social Committee adopted the following opinion by 65 votes with one abstention.

I.   INTRODUCTION

A.   Objectives, reasons and appropriateness of the Commission's initiative

B.   The socio-economic impact of the initiative

C.   Methodological issues: the questions

II.   LEGAL BASIS AND THE LEGAL INSTRUMENT TO BE USED

III.   PRINCIPLES UNDERPINNING THE CONVENTION AND THEIR REAFFIRMATION

IV.   MAIN COMMENTS AND PROPOSALS

4.2   Structure

4.3   Scope (Article 1(2))

4.4   Application of law of non-contracting states (Article 2)

4.5   Freedom of choice (Article 3) (17)

4.6   Additional criterion for determining applicable law (Article 4)

4.6.1   Principle of proximity (Article 4(1)) (21)

4.6.1.1   Question

Debate continues on whether the degree of flexibility in determining the applicable law should be reduced where there is no electio legis or, at least, the appearance of flexibility should be reduced which in the final analysis is not wanted by the Rome Convention itself, when the presumptions of Article 4(2) are interpreted in a certain way.

4.6.1.2   Proposal

This could be achieved, for example, by choosing to delete the enunciation of the principle of closest connection in Article 4(1). It is clear that the additional conflict options are based on the principle of the ‘most significant relationship’ or ‘engste Beziehung’: this would remain equally clear if the rule set out in Article 4(1) were to be deleted.

This measure might also serve to clarify the quality of the rules contained in the following provisions, helping to reduce differences regarding the quality of the presumptions of Article 4(2), (3) and (4). Consequently, the relevant connections would no longer be indicated by these rules as presumptions identifying the closest connection, but they would be considered as additional general or specific connections and no more, at all times subject to the final exception clause.

The exception clause in Article 4(5) should therefore be left unaltered, and the possibility could be added for a judge to perform dépeçage of the contract, as currently set out in the second part of Article 4(1).

4.6.2   Concept of characteristic performance (Article 4(2)) (22)

4.6.2.1   Question

There are suggestions that the concept of characteristic performance, which is the key to determining the additional applicable law, should be clarified. However, not only are there differing theoretical conceptions of the determining criterion, but there are also cases in which observation of the specific circumstances of the case contributes significantly to such determination, taking account in particular of the recent nature of certain contractual contents of varying degrees of complexity.

4.6.2.2   Proposal

Independently of the reliance that must be placed on the sound judgment of the judge, the Committee believes it would be helpful to draw up a list, purely by way of example, of characteristic performances, for the least controversial cases. It must be recognised that such a list may in fact already be known, as well as the fact that judges may always have recourse to the exception clause in Article 4 (although it should be pointed out that, when such a list exists, a judge who decides not to take account of it must provide even greater grounds for his decision than he must already give if he wishes to make use of the exception clause). However, the advantage of such a list lies in the possible strengthening of legal certainty, arising from predictability, itself tied in with the prescriptive value always attached to such an indication, although this is reduced to some extent by its purely exemplary quality and the possibility that it is of a typically general nature.

4.6.3   Short-term leasing agreements (23)

4.6.3.1   Question

At present, the law of the place of the immovable property is in principle applicable to these contracts in a suppletive capacity (Article 4(3)). However, such short-term contracts (holiday leasing agreements) are often concluded between parties who do not reside and are not established in the country in which the object of the contract is located; moreover, the tenant is less likely to have a sound knowledge of the provisions of the lex rei sitae, the same not applying to the other party. It may be that the law of conflict of laws of the country in which the property is located decides that the lex rei sitae is applicable, since it lies outside the scope of the regulation. On the other hand, however, it may be necessary to comply with mandatory or public policy rules of lex rei sitae.

4.6.3.2   Proposal

Consideration should be given to the possibility of applying not the lex rei sitaei to such contracts, but rather the lex domicilii communis, also thereby identifying the law applicable in a suppletive capacity, through an accumulation of connections which point to the law of the economic and social environment of both parties, provided the tenant is a natural person (bearing in mind that the Brussels I Regulation also awards jurisdiction to the courts of the Member State in which both parties are domiciled – Article 22(1)). It may be necessary to take account of or apply certain mandatory public policy provisions of the lex rei sitae, if it is thought that compliance with them is not adequately safeguarded by the provisions of Article 7 (although the lex rei sitae may always be invoked under the terms of the general exception clause).

4.6.4   Contract for the carriage of goods (Article 4(4))

4.6.4.1   Question

It has been questioned if these contracts need to be dealt with separately, since the law applicable in a suppletive capacity is based on a series of connection revolving around the connection involving the place of establishment of the carrier, even if this refers to the principal place of business.

4.6.4.2   Proposal

Although this question has not been raised by the Commission, in the light of the safeguard provided by the exception clause in the current Article 4(5), it would not be inappropriate to remove the provision of Article 4(4) regarding carriage of goods, which would be subject to the general suppletive rule. Moreover, the aim of protecting carriers, which is implicit in several uniform substantive arrangements for various types of carriage of goods, does not require the present wording of the provisions, since if the accumulation of connections cannot be materialised, recourse will have to be had to either paragraph (1) or paragraph (2).

4.7   Certain consumer contracts (24)

4.7.1   Questions

4.7.2   Proposals

4.8   Employment contracts (27)

4.8.1   Questions

Similarly, a number of questions arise with regard to employment contracts, including: matching the Rome Convention with the Community rules on temporary employment and differing definitions of ‘postings’; the question of whether or not the signing of a new contract with a member of the original employer's group terminates the posting for the purposes of application of the respective conflict rule; the problem of the necessary implementation of the rules of transposition of Community law in the field of postings; the issue of work on board certain modes of international transport which are subject to registration and on maritime platforms; and the role of collective agreements in international labour relations together with the question of international collective agreements.

4.8.2   Proposals

4.9   Timesharing rights in rem and contracts (cf. point 4.6 above)

4.9.1   Question

In view of the broader content of the provision contained in Article 15(1)(c) of the Brussels I Regulation, which did not make exclusive reference to movable goods, and in the light of the content of such contracts and the position of the parties normally involved, the questions arises of whether the protection provided in contracts concluded with consumers should not apply, even where availability of immovable property is involved, particularly in view of the proposals to amend the suppletive criterion to determine which law should govern contracts with consumers (and consequently recourse to Article 4(3) and (5) under the current numbering).

4.9.2   Proposal

The conceptual framework of Article 5 should be extended to include mention of immovable property: the rules of rex rei sitae remain relevant, particularly those protective provisions resulting from the transposal of Community law (either because it is understood that with the new wording of Article 5, such law should remain competent in a suppletive quality, in the light of Article 4(3), or under the terms of Articles 7 and 9(6)).

4.10   Mandatory rules, rules of necessary and immediate implementation, provisions which, whether or not they transpose Community directives, require their application regardless of the jurisdiction of their legal systems (29)

4.10.1   Questions

These provisions involve a series of complex questions, of which the following are among the most important: reconciling the rules contained in Articles 5, 6, 7, 9(6) and 10(2), and the different way in which these rules must be considered by judges (margin of appreciation in Article 7(1)); the difficulties encountered in attempting to specify which rules are to be included in the provisions of Article 7 and the task of the judge in this respect; discrepancies in transposition of directives into national law and the problem of non-transposition, questions which do not seem to compete with the specific field of the conflict rules, but rather with harmonisation efforts; the possible obstacle which ‘mandatory rules’ or rules of necessary and immediate implementation may place in the path of achieving single market objectives and its inherent freedoms; the need, where the objectives of private international law are concerned, to reconcile the solutions found with the aim of harmony of international judgments, and hence Community judgments, preventing differing assessments of identical situations, especially within Community territory.

4.10.2   Proposals

4.11   Form of contracts and electronic commerce (cf. point 4.6 above) (32)

4.11.1   Question

In view of the difficulties in establishing location caused by the new means of communication and the need to avoid discriminating against them, given their usefulness, the question arises as to whether a single rule should be adopted, regardless of the means used by the parties to conclude the contract, and if the formal validity of contracts should be maintained.

4.11.2   Proposal

Designation of the lex causae in matters of form may depend on the choice between lex contractus, the law of the place where the parties meet at the time of declaration of negotiations and the law of the place of residence of the parties, as well as a reference to Article 5, according to which the provisions of Article 9 shall not prejudice application of the protecting rules of Article 5 (i.e. those under the law of the place of residence of the consumer).

4.12   Incapacity and legal persons (Article 11)

4.12.1   Question

In the area of capacity, by indicating application of lex loci celebrationis (not applying to contracts inter absentes), Article 11 seeks to uphold the validity of the transaction and to protect the confidence of one of the parties in the apparent capacity of the other. This rule is grounded in the ‘theory of national interest’. It may, however, be wondered if this approach can be applied to legal persons (which would be contrary to their capacity in the light of a possible principle of speciality, and to aspects of organic representation), considering that the Rome Convention refers also to natural persons (33).

4.12.2   Proposal

If it is intended to take a legislative position on this issue, then the exception could be extended to legal persons, in the interests of clarification and harmonisation.

4.13   Voluntary assignment and subrogation (34)

4.13.4   The problem of subrogation not based on fulfilment of an obligation by the assigned creditor.

4.14   Law applicable to credit compensation (36)

If it is judged necessary to include a rule of conflicts relating to compensation, the cumulative application of the leges contractuum will have to be determined.

V.   SUMMARY OF THE REPLIES TO THE QUESTIONS

5.2   QUESTION 1

5.3   QUESTION 2

The reply to this question is given in points 1.2 to 1.10 of the present opinion.

5.4   QUESTION 3

As mentioned in several of its opinions, quoted throughout the present opinion, the EESC has always pointed out the disadvantages of a large number of scattered rules, which affect the law applicable under several Community instruments, and it has underlined the desirability of coherent and consistent consolidation of these rules into a single Community instrument in this field.

5.5   QUESTION 4

5.6   QUESTION 5

In relation to international agreements containing rules of conflict to which the Member States are party, the Committee believes that the minor disadvantage arising from the application, in specific cases, of rules of conflict differing from those laid down in a Community instrument is far less serious than withdrawing from such agreements. The general thrust of the first part of Article 21 of the Rome Convention should therefore be retained. In view of the primacy of Community law, possible future links with existing or potential conventions on the unification of rules of conflict should only be established if they have no effect on the objective of the regulation. The regulation should not therefore prejudice accession to conventions of uniform substantive law, or prevent Member States from acceding to conventions extending the legislative aspects of the regulation to other, non-EU countries.

5.7   QUESTION 6

A detailed reply to this question is given in point 4.5.3.

5.8   QUESTION 7

The EESC does not consider the solution set out in the Rome Convention to provide the best protection for the rights of insured persons/policy holders. The position of insured persons/policy holders should be put on the same footing as that of consumers, regardless of whether insurers are established within the Community territory or not. It is general knowledge that certain insurance directives contain rules which influence the applicable law (cf. Directives 88/357/EEC of 22 June 1988, 90/619/EEC of 8 November 1990 and 83/2002/EC of 5 November 2002) but, in the interests of the aim of unification, consideration should be given to including all insurance policies in the regulation, adopting a special rule of conflicts encompassing the most advantageous aspects in this field.

5.9   QUESTION 8

A reply to this question is given in points 4.5.1 and 4.5.2.

5.10   QUESTION 9

A reply to this question is given in point 4.5. The terms of the ‘either/or’ formulation laid down by the Commission are not in fact mutually exclusive and are perfectly compatible. It should however be acknowledged that it is the role of the judge to determine, in each case, if a tacit choice has been made in accordance with the factual and evidential elements available to him.

5.11   QUESTION 10

A reply to this question is given in point 4.6.1.

5.12   QUESTION 11

A reply to this question is given in point 4.6.3.

5.13   QUESTION 12

Replies to these questions, and other related questions, are given in point 4.7.

5.14   QUESTION 13

A reply to this question is given in point 4.10.

5.15   QUESTION 14

A reply to this question is given in point 4.8.

5.16   QUESTION 15

A reply to this question is given in point 4.8.

5.17   QUESTION 16

A reply to this question is given in point 4.10.

5.18   QUESTION 17

A reply to this question is given in point 4.11.

5.19   QUESTION 18

A reply to this question is given in point 4.13.

5.20   QUESTION 19

A reply to this question is given in point 4.13.

5.21   QUESTION 20

A reply to this question is given in point 4.14.

VI.   CONCLUSIONS AND RECOMMENDATIONS

Brussels, 29 January 2004.

The President

of the European Economic and Social Committee

Roger BRIESCH

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(1)  See question 2 of the Green Paper.

(2)  In particular, the opinions on the Proposal for a Regulation on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (OJ C 117 of 26.4.2000); on the Initiative of the Federal Republic of Germany with a view to adopting a Council Regulation on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters (OJ C 139 of 11.5.2001); on the Proposal for a Council Decision establishing a European Judicial Network in civil and commercial matters (OJ C 139 of 11.5.2001); on the Proposal for a Council Directive on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (OJ C 368 of 20.12.1999); on the Proposal for a Council Regulation creating a European Enforcement Order (OJ C 85 of 8.4.2003); on the Report from the Commission on the implementation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ C 116 of 20.4.2001); and on the Green Paper on a European order for payment procedure and on measures to simplify and speed up small claims litigation (COM(2000) 746 final) (OJ C 220/2, 16.9.03).

(3)OJ C 19 of 23.1.1999.

(4)OJ C 117 of 26.4.2000.

(5)OJ C 241 of 7.10.2000.

(6)  Including the work of the European Group for Private International Law (http://www.drt.ucl.ac.be/gedip).

(7)  Including Regulations (EC) Nos 1346, 1347 and 1348 of 29 May 2000 on insolvency proceedings, on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and parental responsibility, and on the service of judicial and extrajudicial documents in civil or commercial matters (OJ L 160 of 30.6.2000); Regulation (EC) No 1206/2001 of 28 May 2001 on the taking of evidence in civil or commercial matters (OJ L 174 of 27.6.2001); the Proposal for a Council Regulation creating a European enforcement order (COM(2002) 159 final); the Green Paper on alternative dispute resolution in civil and commercial law (COM(2002) 196 final of 19 April 2002); the Green Paper on liability for defective products (COM(1999) 396 final of 28 July 1999); Directive 2000/35/EC of 29 June 2000 on combating late payment in commercial transactions (OJ L 200 of 8.8.2000); Directive 2002/65/EC of 23 September 2002 concerning distance marketing of consumer financial services (OJ L 271 of 9.10.2002); Directive 1999/44/EC of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ L 171 of 7.7.1999); Directive 97/7/EC of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ L 144 of 4.6.1997); the Communication from the Commission on the codification of the acquis communautaire (COM(2001) 645 final); Council Decision 2003/48/JHA of 19 December 2002 on police and judicial cooperation to combat terrorism (OJ L 16 of 22.1.2003); Directive 2002/8/EC of 27 January 2003 on access to justice in cross-border disputes (OJ L 26 of 31.1.2003); and Directive 98/27/EC of 19 May 1998 on injunctions (OJ L 166 of 11.6.1998).

(8)  See the Communication from the Commission – A more coherent European contract law: an action plan (COM(2003) 68 final of 12 February 2003.

(9)  See COM(2003) 427 final of 22 July 2003 - http://europa.eu.int/comm/dgs/justice_home/index_en.htm.

(10)  The formal approach of private international law is propitious to unification, since effective rules to govern it are often independent of the specific circumstances of each national community. This applies even more in the field of contracts, where the views of those involve tend to converge, regardless of their geographical location. This may be to the detriment of certain legal-substantive objectives, but there is widespread agreement in the Community as to these objectives. The question remains whether existing laws match the desired substantive results, as will be the case of protection of the party considered to be weaker. Recent comments on the Brussels I Regulation could, mutatis mutandis, be brought to bear on this question.

(11)  Furthermore, unification in the field of conflicts of laws would, by reducing forum shopping on the basis of the law deemed competent by each country's system of private international law, enable further steps to be taken towards uniform rules on international jurisdiction: there is nothing to choose between different forums available for an action, at least from the point of view of the law that is to be applied in a given forum, thereby increasing market unity and boosting commercial activity in the single market. This is a further reason for proposing complementarity between the two branches of conflict in private international law, even if the diversity of values and objectives which they seek to pursue is confirmed, and they address problems which are also distinct and raise a number of legal issues. Irrelevance of the location in which an action takes place will always have the effect of facilitating the movement and establishment of persons and interests in different places, fostering real mobility within the common market on the basis of real needs and uninfluenced by the consideration that a law may be more favourable in one country than in another.

Cf. M. Giuliano and P. Lagarde, op.cit., pointing out that unification of the rules of conflict in contractual matters would be ‘a natural sequel to the Convention on jurisdiction and enforcement of judgments’, and M. Giuliano, ‘Osservazioni introduttive in Verso una disciplina comunitaria della legge applicabile ai contratti, Padova, 1983, p. XXI’, emphasising that the Rome Convention would be a natural supplement to the 1968 Brussels Convention, as it would prevent the forum shopping loophole left by the Brussels Convention in the field of contracts.

(12)  Cf. M. Giuliano and P. Lagarde, Report on the Convention on the law applicable to contractual obligations, 19 June 1980, OJ C 282 of 31.10.1980, p.4 et seq.; and M. Giuliano, op.cit., loc.cit.,, where the author suggests that the Rome Convention should be seen as a kind of ‘membership card’ for a common legal area, designed to ensure that natural and legal persons operating within the Community enjoy a high level of legal certainty in their contractual relations, both internally and externally, thereby facilitating the operation of the common market.

(13)  Possibly to the benefit of the underlying aims of the conflict rules, as in the case of the protection of certain categories of person, since even while assuring a substantive minimum level of protection by implementing domestic or Community legislative policies the aim is, as has been seen, not to render meaningless the concept of choice in conflicts which flows from the freedom of choice of both parties.

(14)  In some fields, there is already a well-established history of successful substantive unification, but its partial nature continues to point to the need for unification in the area of conflict of laws. On unification and harmonisation of substantive contract law, see the Commission's action plan referred to in footnote 8, and the Opinion of the European Economic and Social Committee on the Communication from the Commission to the Council and the European Parliament on European contract law, OJ C 241 of 7.10.2002.

(15)  In analysing this question, careful account is taken of the judicious proposals for amendments made during the protracted debate within GEDIP, and its suggestions are frequently taken on board.

(16)  See question 7 of the Green Paper.

(17)  Discussed, inter alia, in questions 8 and 9 of the Green Paper.

(18)  Clearly, this will not prevent substantive reference to such bodies of rules which although depending on the position of lex contractus, would be considered to form part of the contractual content, especially since some of these rules will be in force in certain countries. Filtering recourse to such bodies of substantive rules through national conflict laws does not seem to seriously obstruct international trade, and may be a way of boosting legal certainty (although individual countries can retain a considerable degree of autonomy for the parties in this area, and there is the possibility of dépeçage of the contract within certain limits). In fact, even though such a choice may be permitted, states can block the application of some of these international rules by drawing up rules of necessary and immediate implementation.

(19)  Moreover, the argument exists in such cases that, even in the light of the existing version of the Rome Convention, it should be accepted that reference be made to a body of rules contained in an international convention in order to resolve conflicts of law, even if the state of the forum is not a party to that convention, provided that provision is made for this type of electio iuris.

(20)  From this point of view, this would amount to no more than a clarification, although this may be controversial. The overall aims of the Rome Convention not only do not rule out this conclusion; indeed, they would appear to encourage it. Thus basing the electio iuris directly on a convention would amount to an indirect choice, i.e. choosing (explicitly or tacitly) a national system providing for such referral to the system contained in an international convention – which would, in principle, be the case of the law of a country bound by the convention which explicitly allowed the parties to trigger its implementation through an option provision, a profession iuris (cf. the case of the Hague-Visby Rules of 1968 and the Hamburg Convention of 1978 on the carriage of goods by sea).

The objectives of the Rome Convention and the basic values of private international law point to this conclusion. Firstly, the Rome Convention urges scrupulous respect for the wishes of the parties; secondly, it is clear that accepting the referral made by the parties regarding conflict of laws to international arrangements of this kind (provided the real agreement of the parties has been ascertained) will always be the best way to safeguard legal certainty and predictability, i.e. to uphold the expectations of the parties who have given their agreement and the contractual content, while reflecting the rules laid down by the international convention. This conclusion would also serve to prevent forum shopping.

Lastly, this solution could eventually help to encourage unity of international law, especially where there are different versions of a single convention which has been revised and the parties do not agree on these versions. In this case, unless it is obliged to apply an earlier version of the convention in question on account of the objective connection arising in the case, the forum may agree to apply a different version to that by which it is bound, specifically because it has been chosen by the parties who could always have chosen the law of a country bound by the new version, which might provide for its application in accordance with the wishes of the parties.

Referral by the parties to a convention which does not consider private autonomy as a connection liable to triger its applicability may always be interpreted as a substantive referral, i.e. as a substantive incorporation of the rules of the international system into the contract.

(21)  See question 10 of the Green Paper.

(22)  Ibidem.

(23)  See question 11 of the Green Paper.

(24)  See question 12 of the Green Paper.

(25)  This applies in particular to the principle of freedom of choice given the lack of real equality between the parties, especially in ‘standard-form contracts’; it applies to the general presumption of Article 4(2) insofar as in most cases it points to the law of the business operator: it also applies to a narrow interpretation of Article 7, which does not include consumer protection provisions as ‘administrative law’.

(26)  Law of 27 June 2000, Bundesgesetzblatt, a.2000, part I, No 28 of 29 June 2000.

(27)  See questions 14 and 15 of the Green Paper.

(28)  The Committee will soon issue an opinion on the Communication from the Commission on the implementation of Directive 96/71/EC in the Member States (COM(2003) 458 final of 25 July 2003).

(29)  See questions 13 and 16 of the Green Paper.

(30)  In this case, it is possible that the transposal rules of the law of the country where the building is located would not apply – although not necessarily in the light of Article 7 – in the event that the law of a third country has been chosen to cover the timeshare and even then, only when the consumer did not live in a Member State. In the event of residence, the minimum level of protection under lex domicilii would still be applicable, if Article 5 were to cover consumer contracts involving immovable property.

If this approach were to be followed, it must be made clear what is meant by close connection in the various directives on rules of protection, which generally establish that states must ensure implementation on their own territory of transposal rules, provided that the contract displays a close connection with a Member State, and if implementation of certain mandatory provisions of other legal systems were still possible in the light of Article 7 (it should be pointed out that even under secondary law, what constitutes a close connection liable to trigger application of the rules of protection resulting from transposal may always be determined by the judge, depending on how the directives have been transposed i.e. it would depend on knowing whether the national legislators had or had not defined this concept for the purpose of triggering application of the rules of necessary and immediate implementation of transposal).

(31)  On the one hand, it must be acknowledged that the provision contained in Article 7(1), although it could serve as a means of invoking mandatory rules for the transposal of Community law (provided they meet the requirements laid down), is not based on the intention to give importance to foreign legislative policies (whether of Member States or third countries), or the wish to examine the ways in which third-country legal systems (i.e. neither lex fori nor lex causae) give body through law to certain concepts of the socio-economic organisation of states. The purpose of such a rule must be found among the legal objectives of private international law, which is where the grounds for the consideration or application of those rules which would not be invoked through the normal functioning of the rules of conflicts lie. It therefore appears that this provision sets out to bring about uniform assessment of specific legal situations extending over different locations, while taking account of the legitimate expectations of the parties, since the relevant rules would belong to the legal system displaying a close connection with the case. This is intended to prevent a judgment in the forum differing from that which would be obtained elsewhere, and also to prevent forum shopping (and, possibly, to avoid making it possible, for example, that a judgment might clash, in the place of recognition or implementation, with the public policy reservation of a third country, because rules are involved touching upon the sphere of that country's public international policy – in this regard, it might be proper to admit that the rules of greatest concern to the judge of the forum would be none other than those which forward public interests, even though a non-substantive definition of the rules set out in Article 7 persists).

On the other hand, interference on the part of these rules may always constitute an obstacle to legal certainty, in addition – and necessarily – to problems of implementation which may arise in specific cases, especially where rules deriving from other legal systems are involved.

(32)  See question 17 of the Green Paper.

(33)  The existing text appears to allow three possible interpretations. Firstly, the reference to natural persons could be understood as being exclusive, ruling out application to legal persons. Secondly, it would be possible to argue for application of the provision to legal persons by analogy. Lastly, in view of the extreme prudence which must be exercised in the application by analogy of the provisions of all international instruments – which entail sovereign will and state policies – in order not to undermine the internationally accepted compromise and the degree of unification sought, and in the light of the differences which have emerged with regard to the ‘theory of national interest’, and of the fact that the Rome Convention did not set out to govern either the question of capacity or matters relating to legal persons, then it may be concluded that the Rome Convention intended to address the question of capacity only to this limited extent and that the agreement on unification of the contracting states went no further; in consequence, it may be concluded that any aspect concerning capacity which exceeds the provisions of Article 11 remains a matter for the contracting states. Each state would then decide for itself whether or not to extend this precept to legal persons since no unification has been achieved on this specific question.

(34)  See questions 18 and 19 of the Green Paper.

(35)  See M. Giuliano and P. Lagarde, op.cit.

(36)  See question 20 of the Green Paper.

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Opinion of the European Economic and Social Committee on the ‘communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions - Adapting e-Business policies in a changing environment: The lessons of the Go Digital initiative and the challenges ahead’

(COM(2003) 148 final)

(2004/C 108/02)

On 27 March 2003, the Commission decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-mentioned communication.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 16 December 2003. The rapporteur was Mr McDonogh.

At its 405th plenary session (meeting of 28 January 2004), the European Economic and Social Committee adopted the following opinion by 106 votes in favour, three votes against and one abstention.

1.   Introduction and executive summary

2.   General remarks

3.   Specific policy issues

3.1   E-business environment

3.2   Managerial understanding

3.3   Skills for e-business

3.4   Availability of e-business solutions

3.5   E-marketplaces and e-business networks

3.6   Assessment of European efforts to bring SMEs into the digital age

Brussels, 28 January 2004.

The President

of the European Economic and Social Committee

Roger BRIESCH

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(1)  eEurope 2002 – an information society for all, OJ C123, 25.4.2001

Innovation, OJ C260, 17.9.2001

Computer-related crime, OJ C311, 7.11.2001

eLearning Action Plan, C36, 8.2.2002

Go Digital, C80, 3.4.2002

MODINIS, C61, 14.3.2003

e-Learning Programme, C133, 6.6.2003

eEurope 2003 Final Report C220, 16.9.2003

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Opinion of the European Economic and Social Committee on the ‘proposal for a Directive of the European Parliament and of the Council on the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (recast version)’

(COM(2003) 418 final – 2003/0153 (COD))

(2004/C 108/03)

On 28 July 2003 the Council decided to consult the European Economic and Social Committee, under Article 95 of the Treaty establishing the European Community on the above-mentioned proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 16 December 2003. The rapporteur was Mr Levaux).

At its 405th plenary session of 28 and 29 January 2004 (meeting of 28 January), the European Economic and Social Committee adopted the following opinion unanimously:

1.   Introduction

1.1   Aim of the proposal

1.2   Involvement of interested parties in drafting the proposal

1.3   Content of the draft directive

2.   General comments

3.   Specific comments

4.   Conclusions

Brussels, 28 January 2004.

The President

of the European Economic and Social Committee

Roger BRIESCH

----

(1)OJ C 48 of 16.4.1969.

(2)  Following the Committee's comment, the Commission proposal now includes the missing figures.

(3)OJ C 234 of 30.9.2003

(4)OJ C 221 of 17.9.2002

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Opinion of the European Economic and Social Committee on the ‘proposal for a Directive of the European Parliament and of the Council on the approximation of the laws of the Member States relating to the measures to be taken against the emission of gaseous and particulate pollutants from compression-ignition engines for use in vehicles, and the emission of gaseous pollutants from positive-ignition engines fuelled with natural gas or liquefied petroleum gas for use in vehicles’

(COM(2003) 522 final - 2003/0205 (COD))

(2004/C 108/04)

On 22 October 2003 the Council decided to consult the Economic and Social Committee, under Article 95 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 16 December 2003. The rapporteur was Mr Ranocchiari.

At its 405th plenary session (meeting of 28 January 2004), the Economic and Social Committee adopted the following opinion by 113 votes to one.

1.   Introduction

2.   Summary of the Commission proposal

2.4   Measures confirming the durability of emission control systems

3.   General comments

4.   Specific comments

5.   Conclusions

Brussels, 28 January 2004.

The President

of the European Economic and Social Committee

Roger BRIESCH

----

(1)  M = vehicles for the carriage of passengers: M1 (8 seats + 1); M2 (> 8 seats + 1 and total weight < 5t); M3 (> 8 seats + 1 and total weight > 5t); N = vehicles for the carriage of goods; N1 (total weight <= 3.5t); N2 (total weight > 3.5t <= 12t); N3 (total weight > 12t).

(2)OJ C 41 of 18.2.1991; OJ C 155 of 21.6.1995; OJ C 407 of 28.12.1998.

(3)  Motor Vehicle Emissions Group.

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Opinion of the European Economic and Social Committee on ‘preparing transport infrastructure for the future: planning and neighbouring countries - sustainable mobility - financing’

(2004/C 108/05)

On 17 July 2003 the European Economic and Social Committee, acting under Rule 29(2) of its Rules of Procedure, decided to draw up an opinion on: preparing transport infrastructure for the future: planning and neighbouring countries – sustainable mobility – financing.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 24 November 2003. The rapporteurs were Mrs Alleweldt, Mr Levaux and Mr Ribbe.

At its 405th plenary session on 28 and 29 January (meeting of 28 January), the European Economic and Social Committee adopted the following opinion by 107 votes to two, with three abstentions.

Foreword

On 8 April 2003, in a letter from Mr Umberto Vattani, Ambassador and Permanent Representative of Italy to the European Union, the Council asked the European Economic and Social Committee to draw up an exploratory opinion on the Revision of the list of Trans-European Network (TEN) projects up to 2004.

At the July plenary session, the Italian Minister for European Affairs, Mr Buttiglione, on behalf of the Council presidency, enlarged upon this request, explaining that it was one of the priorities of the Italian presidency to give new impetus to European transport infrastructure policy. He also expressed the hope that trans-European transport networks would not only facilitate the transport of goods, but would also strengthen ties between the communities along their routes.

Meeting in Rome on 4 September 2003 at the invitation of the Italian Economic and Labour Council (CNEL) and in the presence of Mr Buttiglione, the European Economic and Social Committee's Section for Transport, Energy, Infrastructure and the Information Society adopted its exploratory opinion and a joint resolution with Commission V of the CNEL on large-scale infrastructure projects and networks, emphasising that

Speaking on behalf of the Italian presidency, Mr Buttiglione also wished to see the EESC more closely involved in European policy in this area. The TEN section was therefore given the task of drawing up an own-initiative opinion on Preparing transport infrastructure for the future: planning and neighbouring countries – sustainable mobility – financing. Owing to the complexity of the topic, it was decided to appoint three rapporteurs (1), each dealing with one of the three aspects with reference to ongoing work on the growth initiative and the work of the Van Miert group. The EESC's work on the subject is constantly evolving and this opinion, which is to be submitted before the end of the Italian presidency at its final meeting in early December, constitutes its current position.

Alexander Graf von Schwerin

President of the Section for Transport, Energy,

Infrastructure and the Information Society

1.   Planning and neighbourhood policy – linking the trans-European networks to the Helsinki pan-European corridors

2.   Transport infrastructure with reference to sustainable development

2.1   Introduction

2.2   Transport infrastructure and sustainable development

2.3   Specific comments

3.   Financing

3.1   Introduction

3.2   Reasons for the failure to fulfil aspirations or commitments in the field of transport infrastructure

3.3   How can the situation be improved?

3.4   The financing of European transport network projects

3.4.1   Raising a European loan (1993 Commission proposal)

3.4.2   The Public-Private Partnership including Concessions

3.4.3   Cofinancing arrangements and coordination thereof

3.4.4   The interoperability of toll systems

3.4.5   Creating a ‘major works fund’ fed by EU budget surpluses

3.4.6   Creating a European fund dedicated to transport infrastructure

Brussels, 28 January 2004.

The President

of the European Economic and Social Committee

Roger BRIESCH

----

(1)  Mrs Alleweldt: Planning and neighbouring countries

Mr Ribbe: Sustainable mobility

Mr Levaux: Financing

(2)  COM(2003) 579 final A European initiative for growth: Investing in networks and knowledge for growth and employment. Interim Report to the European Council

(3)  Report by the high-level group on trans-European transport networks chaired by Karel van Miert, European Commission, 20.6.2003.

(4)  COM(2003) 564 final of 1.10.2003

(5)  cf. EESC opinion OJ C 407, 28.12.1998, p.100.

(6)  Germany – Austria – Slovakia – Hungary – Croatia – Serbia – Bulgaria – Moldova – Ukraine – Romania

(7)  OJ C 32, 5.2.2004.

(8)  Germany – Czech Republic – Slovakia – Hungary – Romania – Bulgaria – Greece – Turkey

(9)  Austria – Croatia – FYROM – Slovenia – Hungary – Serbia – Bulgaria

(10)  COM(2003) 564 final, Article 17 a (4) c), p. 23

(11)  Source: http://europa.eu.int/pol/trans/index_en.htm

(12)OJ C 048, 21.2.2002, p. 112 etc.

(13)  The EESC has several times mentioned regional bus transport as being an important pillar of sustainable transport policy. However, since this opinion is primarily concerned with European transport infrastructure, no specific views are given on promoting bus transport; a separate EU bus infrastructure policy is inconceivable for the EESC.

(14)  Eurostat News Releases No. 42/2002, 9.4.2002

(15)  Promoting traffic-reducing regional economic networks plays a role here. For example, creating a limited number of centrally located, large-scale abattoirs (often with EU funds) has led to an enormous increase in traffic (including the controversial transport of animals) while wiping out regional jobs. If all the external costs incurred were incorporated into the costing of slaughtering operations, their ‘economic viability’ would look quite different.

(16)  COM(2001) 370 – EESC opinion OJ C 241, 7.10.2002, p. 168

(17)  OJ C 10, 14.1.2004

(18)  COM(2003) 132 final, 23.4.2003

(19)  OJ C 32, 14.1.2004

(20)OJ C 85, 8.4.2003, p. 133 (opinion on the harmonisation of excise duties on petrol and diesel fuel), OJ C 220, 16.9.2003, p.26 (opinion on safety in tunnels on the trans-European road network), OJ C 10, 14.1.2004.

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Opinion of the European Economic and Social Committee on ‘Promoting renewable energy: Means of action and financing instruments’

(2004/C 108/06)

On 17 July 2003, the European Economic and Social Committee, acting under Rule 29(2) of its Rules of Procedure, decided to draw up an opinion on promoting renewable energy: Means of action and financing instruments.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the work on the subject, adopted its opinion on 8 January 2004. The rapporteur was Mrs Sirkeinen.

At its 405th plenary session of 28 and 29 January 2004 (meeting of 28 January 2004) the European Economic and Social Committee adopted the following opinion by 113 votes to two.

1.   Aim and background

2.   Present EU goals and regulations

3.   Related Policies and Measures

4.   Promotion of renewables in Member States

5.   Enlargement

6.   Potentials and non-tariff obstacles to renewables

7.   Evaluation of promotion methods and results

8.   Conclusions and recommendations

Brussels, 28 January 2004.

The President

of the European Economic and Social Committee

Roger BRIESCH

----

(1)  ECJ ruling of 13.3.2001, case C-379/98

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Opinion of the European Economic and Social Committee on the ‘proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No. 1406/2002 establishing a European Maritime Safety Agency’

(COM(2003) 440 final - 2003/0159 (COD))

(2004/C 108/07)

On 8 September 2003, the Council decided to consult the European Economic and Social Committee, under Article 80(2) of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 8 January 2004. The rapporteur was Mr Chagas.

At its 405th plenary session of 28 and 29 January 2004 (meeting of 28 January), the European Economic and Social Committee adopted the following opinion by 107 votes with two abstentions.

1.   The Commission proposal

2.   General comments

3.   Conclusions

Brussels, 28 January 2004.

The President

of the European Economic and Social Committee

Roger BRIESCH

----

(1)OJ L 208 of 5.8.2002, p. 1

(2)  Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on enhancing maritime transport security, COM(2003) 229 final.

(3)OJ C 221 of 7.8.2001, p. 54.

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Opinion of the European Economic and Social Committee on the ‘proposal for a Directive of the European Parliament and of the Council on the regulation of the operation of aeroplanes covered by Part II, Chapter 3, Volume I of Annex 16 to the Convention on International Civil Aviation, second edition (1988)’

(COM(2003) 524 final - 2003/0207 (COD))

(2004/C 108/08)

On 22 September 2003, the Council decided to consult the European Economic and Social Committee, under Article 80(2) of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 8 January 2004. The rapporteur was Mr Green.

At its 405th plenary session on 28 and 29 January 2004 (meeting of 28 January), the European Economic and Social Committee adopted the following opinion by 46 votes to one.

1.   Background

2.   The Commission proposal

3.   General comments

Brussels, 28 January 2004.

The President

of the European Economic and Social Committee

Roger BRIESCH

----

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Opinion of the European Economic and Social Committee on the ‘proposal for a Directive of the European Parliament and of the Council on the use of vehicles hired without drivers for the carriage of goods by road’

(COM(2003) 559 final - 2003/0221 (COD))

(2004/C 108/09)

On 3 October 2003 the Council decided to consult the European Economic and Social Committee, under Article 71 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 8 January 2004. The rapporteur was Mr Simons.

At its 405th plenary session of 28 and 29 January 2004 (meeting of 28 January) the European Economic and Social Committee unanimously adopted the following opinion:

In the context of a people's Europe, the clarity and transparency of Community law are an important element. The European Parliament, the Council and the Commission have therefore stressed the need to codify frequently amended legislative acts and have agreed on a rapid procedure. No changes of substance may be made to legislative acts in the process of codification.

This Commission proposal complies with this intention and the EESC therefore has no objections.

Brussels, 28 January 2004

The President

of the European Economic and Social Committee

Roger BRIESCH

----

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Opinion of the European Economic and Social Committee on the ‘proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No. 2320/2002 of the European Parliament and of the Council establishing common rules in the field of civil aviation security’

(COM(2003) 566 final - 2003/0222 (COD))

(2004/C 108/10)

On 8 October 2003 the Council of the European Union decided to consult the European Economic and Social Committee, under Article 80 (2) of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 8 January 2004. The rapporteur was Mr Simons.

At its 405th plenary session (meeting of 28 and 29 January 2004), the European Economic and Social Committee adopted the following opinion unanimously.

Brussels, 28 January 2004.

The President

of the European Economic and Social Committee

Roger BRIESCH

----

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Opinion of the European Economic and Social Committee on the ‘proposal for a Regulation of the European Parliament and of the Council on shipments of waste’

(COM(2003) 379 final - 2003/0139 COD)

(2004/C 108/11)

On 1 September 2003 the Council decided to consult the European Economic and Social Committee, under Article 175 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 18 December 2003. The rapporteur was Mr Buffetaut.

At its 405th plenary session held on 28 and 29 January 2004 (meeting of 28 January 2004), the European Economic and Social Committee adopted the following opinion unanimously.

1.   Introduction

The proposal has four main objectives:

2.   Main elements of the proposal

Waste shipments must follow various procedures and control regimes, which are determined by the type of waste shipped and the type of treatment to be applied to the waste at its destination. Therefore, different levels of control regime are to apply, depending on the risk posed by the waste and its treatment.

2.1   Prior written notification and consent procedure

Prior written notification and consent is to be required for shipments of all waste destined for disposal and shipments of hazardous and semi-hazardous waste destined for recovery.

In practical terms, when a waste producer or waste collector – the notifier – intends to ship hazardous or semi-hazardous waste (Annex IV) for recovery or disposal or non-hazardous waste (Annex III) for disposal, he or she must submit prior written notification to the competent authority of dispatch.

The notifier is also to be obliged to draw up a contract with the consignee for the recovery or disposal of the notified waste.

Notification must be sent to the competent authority of dispatch, which forwards it to the competent authority of destination. The latter sends an acknowledgement of receipt to the notifier if it considers that the notification has been ‘properly completed’.

2.2   Prior information requirement

Shipments of non-hazardous waste (Annex III) destined for recovery are not to be subject to the prior written notification procedure. However, a contract must be drawn up between the person arranging the shipment and the consignee.

2.3   Main changes to the scope and definitions (Title I)

2.4   Main changes and clarifications as regards shipments within the Community (Title II)

This is the heart of the Regulation and contains the main provisions.

2.5   Provisions as regards shipments within Member States (Title III)

No changes are proposed.

2.6   Main changes and clarifications as regards Community exports and imports (Titles IV, V and VI)

3.   General comments

4.   Specific comments

4.2   Article 1(6)

The EESC has reservations about excluding waste covered by Regulation No. 1774/2002. If these products are waste, they should be covered by the legislation on waste shipments, if only to ensure uniform procedures.

4.3   Article 2, Definitions

Parliament's proposals clarify the text and make it more precise.

4.4   Article 3(4) and Article 20

It seems somewhat unrealistic to require that companies wishing to send samples for laboratory analysis inform the authorities three days in advance. Such an arrangement seems impossible to organise and monitor in practice. In fact, in most cases samples are delivered by car and collected the same day.

A declaration to be sent on the same day or before the waste is transported or collected could solve the problem of traceability, samples being transported with a copy of the information.

4.5   Article 3

Parliament has proposed that shipments of waste not intended for ‘final’ treatment should be prohibited.

Under current legislation, no definition or operating rules exist for interim operations. Surely the export of waste not intended for final treatment should therefore be banned, as Parliament proposes.

How can operations involving mixtures of waste be allowed without addressing issues of dilution and therefore potential decommissioning?

4.6   Article 4

It does not make sense that an operator who changes the nature of waste should be the notifier of the shipment.

What is meant here by ‘changing’? As long as there is no legislative framework governing such operations that are not waste treatment operations, it seems inappropriate to ‘authorise’ them in a regulation that is intended to ensure that waste shipments are only possible if the environment is better protected and recovery operations improved.

4.7   Article 5

It should be specified that the notification and movement documents could comprise e-documents standardised by a competent authority or an environmental agency.

However, Parliament's proposal, which would tend to exempt public facilities from the obligations imposed on private facilities, should not be taken up for the obvious reasons concerning respect of competition rules.

4.8   Articles 6(4), 7(3) and 7(6)

For the reasons already given above, operations that are not final should not be covered by this regulation.

4.9   Articles 8 and 9

The EESC welcomes the guarantees provided for professionals with respect to deadlines. To make these more effective, it should be stipulated that the notifier may claim damages and interest if there is an unjustified delay in delivery of the acknowledgement.

4.10   Article 10

The purpose of this article is to accelerate procedures, and it should therefore also encourage the use of e-mail to transmit requests.

4.11   Article 11

It could be proposed in this article that waste treatment facilities which import waste should inform the authorities of dispatch of what will ultimately happen to the waste treated, and that the authorities of dispatch and destination should also be required to cooperate by each checking that the operations are completed successfully.

4.12   Article 16

This is the first time in European legislation that the concept of transparency has been introduced for so-called interim operations and the operator made accountable. This is a positive development, but as noted above ‘interim’ operations are introduced here without any background legislation. It would therefore seem preferable in the current circumstances to limit shipments to final operations.

4.13   Article 21

The mixing of waste during shipment should be prohibited.

4.14   Article 31

Under this article, administrative costs may be charged to the notifier. The problem here is that the definition of appropriate and proportionate costs may vary considerably between individual countries, which could lead to distortions of competition.

4.15   Article 62

This article is very vague and general. What type of additional measures might the Commission adopt?

5.   Conclusion

The EESC stresses that the proposal for a regulation improves the traceability of waste and provides a guarantee for professionals that deadlines will be met. This is in the interests of better environmental protection and respect for the requirements of sustainable development, objectives which must be the fundamental priority of the text. Certain provisions must be made more precise and simplified in order to be more effective.

To achieve a real liberalisation of the market, clear definitions that are accepted by all the Member States must be proposed in relation to recycling, recovery, disposal and interim operations.

It would also be particularly useful to organise an exchange of information on good practice in the Member States. Subject to these comments, the Committee considers that the amendment of the regulation will help to improve European legislation.

Brussels, 28 January 2004.

The President

of the European Economic and Social Committee

Roger BRIESCH

----

(1)  See document EP T5-0505/2003.

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Opinion of the European Economic and Social Committee on the ‘proposal for a Regulation of the European Parliament and of the Council on certain fluorinated greenhouse gases’

(COM(2003) 492 final – 0189/2003 COD)

(2004/C 108/12)

On 9 September 2003, the Council decided to consult the European Economic and Social Committee, under Article 95 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing the Committee's work on this subject, adopted its opinion on 18 December 2003 The rapporteur was Mr Sears.

At its 495th plenary session held on 28 and 29 January 2004 (meeting of 28 January 2004), the European Economic and Social Committee adopted the following opinion unanimously.

1.   Introduction

2.   Summary of the Commission's proposal

3.   General comments

4.   Specific comments

Brussels, 28 January 2004.

The President

of the European Economic and Social Committee

Roger BRIESCH

----

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Opinion of the European Economic and Social Committee on the ‘proposal for a Council Regulation on the establishment of a regime of local border traffic at the external land borders of the Member States’ and the ‘proposal for a Council Regulation on the establishment of a regime of local border traffic at the temporary external land borders between Member States’

(COM(2003) 502 final – 2003/0193 (CNS) – 2003/0194 (CNS))

(2004/C 108/13)

On 18 September 2003, the Council decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-mentioned proposals.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 6 January 2004. The rapporteur was Mr Simons.

At its 405th plenary session of 28 and 29 January 2004 (meeting of 28 January), the European Economic and Social Committee adopted the following opinion by 52 votes to three, with no abstentions.

Introduction

The purpose of the European Commission's proposals on the establishment of a regime of local border traffic at the external land borders of the EU Member States (1) and at the temporary external land borders between Member States (2) is to facilitate border crossing for bona fide border residents having legitimate reasons to frequently cross the external land borders and, at the same time, to take account of the need to prevent illegal immigration and potential threats to security posed by criminal activities.

1.   Gist of the Commission proposals

2.   General comments

3.   Specific comments

3.1   Proposal for a Council Regulation on the establishment of a regime of local border traffic at the external land borders of the Member States (2003/0193 (CNS))

3.1.1   Article 3 (definitions)

3.1.2   Article 4 (non-discrimination clause)

3.1.3   Article 10 (format of the visa)

3.1.4   Article 20 (Amendment of the Common Consular Instructions)

3.1.5   Article 21 (Amendment of the Convention implementing the Schengen agreement)

3.2   Proposal for a Council Regulation on the establishment of a regime of local border traffic at the temporary external land borders between Member States (2003/0194 (CNS))

4.   Conclusions

Brussels, 28 January 2004.

The President

of the European Economic and Social Committee

Roger BRIESCH

----

(1)  COM(2003) 502 final – 2003/0193 (CNS)

(2)  COM(2003) 502 final – 2003/0194 (CNS)

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Opinion of the European Economic and Social Committee on ‘Europe's Creative Industries’

(2004/C 108/14)

On 9 April 2003, in a letter from Mrs Viviane Reding, the Commission asked the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, to draw up an opinion on Europe's Creative Industries.

On 15 April 2003, the Committee Bureau instructed the Section for the Single Market, Production and Consumption to prepare the Committee's work on the subject. The section adopted its opinion on 16 December 2003. The rapporteur was Mr Rodríguez García Caro.

At its 405th plenary session of 28 and 29 January 2004 (meeting of 28 January), the European Economic and Social Committee adopted the following opinion by 72 votes to seven with five abstentions.

1.   Introduction

1.1   Reason for the opinion

1.2   Content of the exploratory opinion

2.   Europe and culture

2.1   Culture

2.2   Cultural Policy and a European Cultural Area

3.   Community Programmes that support culture and the creative industries

3.1   Legal basis

3.2   Specific programmes in the field of culture

3.3   Community programmes relevant to the field of culture

4.   The creative industries

4.1   What is meant by the creative industries?

4.2   Into what categories could the different creative industries be placed?

5.   The European Economic and Social Committee, culture and the creative industries

5.5   The European Economic and Social Committee and the Culture 2000 Programme

6.   Cultural and socio-economic challenges faced by the creative industries in Europe

6.1   The need to define what is meant by the ‘creative industries’ and identify the sectors of activity that fall within this category

6.2   Challenges arising from linguistic diversity

6.3   Specific problems affecting businesses in the cultural sector

6.4   Challenges related to globalisation

6.5   Problems facing the European Union

7.   The potential contribution to be made by Europe to finding long-term solutions to these challenges

Without reiterating the opinions already stated by the Committee throughout this document and, more precisely, under points 5 and 6, the following observations may be made regarding how to address some of the problems faced by the creative industries.

7.1   A cultural policy for the European Union

7.2   A European Cultural Area

7.3   Definition of the creative industries

7.4   Support for the creative industries

7.5   Cultural education and awareness-raising

7.6   Support for artists and other creative performers

7.7   Cultural industry, freedom and pluralism

Brussels, 28 January 2004.

The President

of the European Economic and Social Committee

Roger BRIESCH

----

(1)  European Parliament Resolution on Cultural Industries, whereas clause A. [P 5 TA-PROV (2003)0382].

(2)  Decision 719/96/EC

(3)  Decision 2085/97/EC

(4)  Decision 2228/97/EC

(5)  Decision 508/2000/EC

(6)  COM(2003) 187

(7)  Decision 163/2001/EC

(8)  Decision 821/2000/EC

(9)  http://www.unesco.org/culture/industries

(10)OJ C 329, 17.11.1999

(11)OJ C 148, 30.5.1994

(12)OJ C 256, 2.10.1995

(13)OJ C 168, 16.6.2000

(14)OJ C 10, 14.1.2004.

(15)  http://europa.eu.int/comm/culture/eac/archive/consult_pub_en/html

(16)  COM(2003) 46 final

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APPENDIX

to the Opinion of the European Economic and Social Committee

The following amendments, which received at least one quarter of the votes cast, were rejected in the course of the discussion:

New point 2.1.1.3

‘What constitutes culture is in the eye of the beholder, so it is difficult to give a clear-cut definition. Culture also includes all types of sporting events, and all those activities pursued by people across Europe in various types of association, such as folk music, folk dance, and arts and crafts.’

Result of the vote:

For: 16, against: 37, abstentions: 7.

New point 2.1.1.4

‘We in Europe also have a duty to protect and advance the specific culture of the Sami people and of other indigenous and minority populations. In this context, language is particularly important.’

Result of the vote:

For: 21, against: 44, abstentions: 9.

New point 2.1.2.1.

‘Culture is not just a matter of performers but of users, too. There is a huge imbalance in access to culture, and this is a key issue for cultural policy. Every citizen must have the right and opportunity to be both performer and user of culture.’

Result of the vote:

For: 30, against: 36, abstentions: 4.

New point 4.2.2.2

‘In an increasingly multicultural Europe, it is particularly important to safeguard the specific cultures of the new Member States’.

Result of the vote:

For: 26, against: 31, abstentions: 8.

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Opinion of the European Economic and Social Committee on the ‘proposal for a Council Directive amending Directive 77/388/EEC to extend the facility allowing Member States to apply reduced rates of VAT to certain labour-intensive services’

(COM(2003) 825 final – 2003/0317 (CNS))

(2004/C 108/15)

On 18 December 2003, the Council of the European Union decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

Given the urgency of the work, the Committee decided at its 405th plenary session (meeting of 28 January) to appoint Mr Malosse as rapporteur-general and adopted the following opinion with 40 votes in favour and four abstentions:

1.   The proposal's content and raison d'être

2.   The European Economic and Social Committee's opinion

Brussels, 28 January 2003

The President

of the European Economic and Social Committee

Roger BRIESCH

----

(1)  COM(2003) 397 final of 23.7.2003

(2)OJ C 20 of 22.7.1999

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Opinion of the European Economic and Social Committee on the ‘proposal for a Council Regulation amending Regulation (EC) No. 1673/2000 on the common organisation of the markets in flax and hemp grown for fibre’

(COM(2003) 701 final - 2003/0275 CNS)

(2004/C 108/16)

On 1 December 2003 the Council decided to consult the European Economic and Social Committee, under Article 37 of the Treaty establishing the European Community, on the above-mentioned proposal.

On 9 December 2003 the Committee Bureau instructed the Section for Agriculture, Rural Development and the Environment to prepare the Committee's work on the subject.

In view of the urgency of the matter, at its 405th plenary session (meeting of 28 January 2004) the European Economic and Social Committee decided to appoint Mrs Santiago as rapporteur-general and adopted the following opinion with 31 votes in favour and one abstention.

1.   Introduction

2.   Comments

Brussels, 28 January 2004

The President

of the European Economic and Social Committee

Roger BRIESCH

----

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Opinion of the European Economic and Social Committee on the ‘proposal for a Directive of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the Internal Market and amending Directives 84/450/EEC, 97/7/EC and 98/27/EC (the Unfair Commercial Practices Directive)’

COM(2003) 356 final - 2003/0134 (COD)

(2004/C 108/17)

On 25 July 2003 the Council decided to consult the European Economic and Social Committee, under Article 95 of the Treaty establishing the European Economic Community, on the above-mentioned proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 16 December 2003. The rapporteur was Mr Hernández Bataller.

At its 405th plenary session (meeting of 29 January 2004) the European Economic and Social Committee adopted the following opinion by 77 votes to eight with ten abstentions.

1.   Introduction

2.   Content of the proposed directive

3.   General comments

3.3.   Specific comments

Minimum harmonisation

3.4   Scope

3.5   Legal basis

3.6   Concept of the ‘average consumer’

3.7   Unfair commercial practices

3.8.   Conceptual clarity of the proposal

3.9   Consistency with other Community legislation

3.10   Out-of-court settlements

Brussels, 29 January 2004.

The President

of the European Economic and Social Committee

Roger BRIESCH

----

(1)  COM(2001) 531 final

(2)OJ C 125 of 27.5.2002.

(3)  Ibid.

(4)  COM(2002) 289 final

(5)  COM(2001) 546 final

(6)OJ C 221 of 17.9.2002. COM(2001) 546 final.

(7)OJ C 95 of 23.4.2003.

(8)  Ibid.

(9)  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

(10)  See footnote 7

(11)  See footnote 2

(12)  COM(2003) 68 final

(13)  Footnote 2

(14)  Footnote 2

(15)  Footnote 6

(16)  Commission recommendation on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes. OJ L 115 of 17.4.1998

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APPENDIX

to the Opinion of the European Economic and Social Committee

The following amendments were defeated although they obtained at least a quarter of the votes cast.

Point 3.6

Delete points 3.6.1 and 3.6.2.

Result of vote:

For 24, against 55, abstentions 3.

Point 3.7.2

Delete.

Result of vote:

For 24, against 59, abstentions 4.

The following text from the section opinion was defeated in favour of an amendment, but obtained at least a quarter of the votes cast:

Result of vote:

For 28, against 53, abstentions 5.

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Opinion of the European Economic and Social Committee on the ‘proposal for a Regulation of the European Parliament and of the Council on cooperation between national authorities responsible for the enforcement of consumer protection laws (“the regulation on consumer protection cooperation”)’

(COM(2003) 443 final – 2003/0162 (COD))

(2004/C 108/18)

On 1 August 2003 the Council decided to consult the European Economic and Social Committee, under Article 95 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 16 December 2003. The rapporteur was Mr Hernández Bataller.

At its 405th plenary session of 28 and 29 January 2004 (meeting of 29 January), the European Economic and Social Committee adopted the following opinion with 68 votes in favour and four abstentions.

1.   Introduction

2.   The Proposal for a Regulation

3.   General comments

Brussels, 29 January 2004

The President

of the European Economic and Social Committee

Roger BRIESCH

----

(1)  COM(2001) 531 final.

(2)  COM(2002) 289 final.

(3)  COM(2003) 238 final

(4)  EESC Opinion 344/2002 on the Green Paper on European Union Consumer Protection. OJ C 125 of 27.5.2002 and EESC Opinion on the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on consumer policy strategy 2002-2006. OJ C 95 of 23.4.2003.

(5)  Article 3 of Directive 98/27/EC of the European Parliament and of the Council of 19.5.1998 on injunctions for the protection of consumers' interests. OJ L 166 of 11.6.1998.

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Opinion of the European Economic and Social Committee on the ‘Commission Report XXXIInd Competition Policy Report 2002’

SEC(2003) 467 final

(2004/C 108/19)

On 25 April 2003 the Commission decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the: XXXIInd Competition Policy Report 2002.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 16 December 2003. The rapporteur was Mr Metzler.

At its 405th plenary session (meeting of 29 January 2004), the European Economic and Social Committee adopted the following opinion by 60 votes to 18, with three abstentions.

1.   Introduction: General Background

2.   Antitrust – EC Treaty Articles 81 and 82; State monopolies and monopoly rights – EC Treaty Articles 31 and 86

3.   Merger control

4.   State aid

5.   Services of general interest

6.   International cooperation

7.   Conclusions

Brussels, 29 January 2004.

The President

of the European Economic and Social Committee

Roger BRIESCH

----

(1)  cf. ESC opinion on the White Paper on modernisation of the rules implementing Articles 81 and 82 of the EC Treaty, OJ C 51/55 of 23.2.2000, and the ESC opinion on the draft Regulation in OJ C 155/73 of 29.5.2001.

(2)  cf. ESC opinion on the draft Regulation, OJ C 155/73, point 2.8.2.5

(3)  cf. ESC opinion, OJ C 155/73, point 2.10.1.

(4)  cf. ESC opinion, OJ C 155ç/73, point 2.12.

(5)  cf. ESC opinion the two drafts, OJ C 36/10 of 8.2.2002

(6)  cf. ESC opinion on the draft directive, OJ C 116/99 of 20.4.2001

(7)  cf. ESC opinion on the five draft directives, OJ C 123/50, C 123/53, C 123/55 and C 123/56 of 25.4.2001

(8)  cf. ESC opinion on the draft regulation, OJ C 221/10 of 17.9.2002

(9)  This is also expressed in work on the mutual recognition of qualifications directive.

(10)  cf. ESC opinion on the draft regulation, CESE 1169/2003 of 24.9.2003

(11)  cf. ESC opinion on the draft communication, CESE 1170/2003 of 24.9.2003

(12)  cf. ESC opinion on the draft regulation, CESE 1169/2003 of 24.9.2003 , point 3.10, and on the Green Paper on the Review of the Merger Regulation, OJ C 241/130 of 7.10.2002, point 3.3.1

(13)  cf. ESC opinion on the draft regulation, CESE 1169/2003 of 24.9.2003 , point 3.10, and on the Green Paper on the Review of the Merger Regulation, OJ C 241/130 of 7.10.2002, point 3.2.13

(14)  cf. ESC opinion on the draft communication, CESE 1170/2003 of 24.9.2003, point 3.1.4.

(15)  cf. ESC opinion on the Green Paper, OJ C 241/130 of 7.10.2002, point 3.2.12

(16)  cf. ESC opinion on the draft communication, CESE 1170/2003 of 24.9.2003, point 4.7.2.

(17)  cf. ESC opinion on the Green Paper, OJ C 241/130 of 7.10.2002, point 3.1.2

(18)  cf. ESC opinion on the draft regulation, OJ C 241/143 of 7.10.2002

(19)  cf. ESC opinion on services of general interest, OJ C 241/119 of 7.10.2002

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Opinion of the European Economic and Social Committee on the ‘proposal for a Council Regulation establishing a European Agency for the Management of Operational Co-operation at the External Borders’

(COM(2003) 687 final - 2003/0273(CNS))

(2004/C 108/20)

On 8 December 2003 the Council decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

The European Economic and Social Committee decided to appoint Mr Pariza Castaños rapporteur-general for this opinion.

At its 405th plenary session of 28 and 29 January 2004 (meeting of 29 January 2004), the European Economic and Social Committee adopted the following opinion by seventy-five to one, with three abstentions.

1.   Gist of the Proposal for a Regulation

2.   General comments

3.   Specific comments

Brussels, 29 January 2004

The President

of the European Economic and Social Committee

Roger BRIESCH

----

(1)  See EESC opinion on the Communication on a common policy on illegal immigration – OJ C 149 of 21.6.2002 and EESC opinion on immigration, integration and employment adopted at its plenary session of 11.12.2003.

(2)  See first opinion referred to in footnote 2.

(3)  Ibid.

(4)  See second opinion referred to in footnote 2.

(5)  See OJ C 221 of 17.9.2002 .

(6)  See first opinion referred to in footnote 2, point 3.6.4.

(7)  See point 2.4 of the opinion in OJ C 61 of 14.3.2003

(8)  See OJ C 220 of 16.9.2003

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Opinion of the European Economic and Social Committee on ‘the agricultural employment situation in the EU and the accession countries: options for action for 2010’

(2004/C 108/21)

On 23 January 2003, the European Economic and Social Committee, acting under Rule 29(2) of its Rules of Procedure, decided to draw up an opinion on the agricultural employment situation in the EU and the accession countries: options for action for 2010.

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 18 December 2003. The rapporteur was Mr Wilms.

At its 405th plenary session, held on 28 and 29 January 2004, (meeting of 29 January), the European Economic and Social Committee adopted the following opinion by 65 votes to 2, with no abstentions.

1.   Introduction

2.   Starting point

2.1   Competitive and sustainable farming

2.2   Sustainable farming can only work as part of an integrated policy for rural areas

2.3   Safeguarding of farmers' incomes

2.4   Employment in agriculture

2.5   Farm incomes

2.6   Social criteria in sustainable agriculture

2.7   Social security

2.8   Basic and further training

2.9   Co-determination and participation

3.   A vision for 2010

3.2   The EESC is looking forward to a competitive, sustainable agricultural sector offering employment and social balance.

3.3   The EESC is calling for an integrated policy for rural areas. Such a policy should take the impact of upstream and downstream sectors into account.

3.4   The EESC demands the establishment of a uniform system of aid in Europe, which safeguards farm incomes.

3.5   The EESC is expecting employment in agriculture to pick up.

3.6   The EESC wants the social partners to conclude collective agreements to safeguard adequate levels of income.

3.7   The EESC is calling for equal treatment for seasonal workers.

3.8   The EESC is hoping for social criteria and indicators for certifying businesses where farming is the main activity, as a contribution to sustainable farming.

3.9   The EESC believes that effective social security systems will make jobs in agriculture attractive.

3.10   The EESC is looking forward to a sector-based strategy for lifelong learning to underpin employment.

3.11   The EESC is calling for civil society players to be involved in the sustainable development of rural areas.

4.   Possible courses of action

4.1   Achieving a competitive, sustainable agricultural sector

4.2   Integrated rural development

4.3   Safeguarding incomes in the agricultural sector

4.4   Measures to boost employment in agriculture

4.5   Collective agreements to be concluded by the social partners

4.6   Seasonal work

4.7   Introduction of social criteria and indicators for certifying businesses where farming is the main activity

4.8   Social security systems in sustainable agriculture

4.9   A sector-based strategy for lifelong learning in the agricultural sector

4.10   Civil society players are to help shape sustainable development in rural areas

Brussels, 29 January 2004.

The President

of the European Economic and Social Committee

Roger BRIESCH

----

(1)  Opinion of the Economic and Social Committee on policy to consolidate the European agricultural model, OJ C 368, 20.12.99, pages 76-86

(2)  The European Commission's Comprehensive monitoring report on the state of preparedness for EU membership, 2003

(3)  Communication from the Commission to the Council and the European Parliament: Mid-term review of the Common Agricultural Policy, COM(2002) 394 final, page 8.

(4)  Communication from the Commission: Second progress report on economic and social cohesion, COM(2003) 34 final, pages 13 and 14.

(5)  Ibidem.

(6)  ‘Social economy’, or ‘third sector’, businesses and organisations encompass socio-economic bodies which basically have the following principles in common: they are not-for-profit organisations which operate independently of the public and private sectors, target a more participatory form of organisation and are geared to serving the community ; they cater for needs and public services which the market does not cover and, to this end, engage in economic activity and employ staff; and they are mostly small and medium-sized businesses in local communities whose work is geared to long-term regional development (See footnote 5).

(7)  Communication from the Commission: Acting locally for employment - A local dimension for the European Employment Strategy COM(2000) 196 final, pages 11 and 12.

(8)  Ibidem.

(9)  See footnote 2.

(10)  EFFAT-GEOPA agreement on vocational training

(11)  The term ‘reasonable income’ implies that employees will receive an agreed performance-related income to satisfy their economic, social and cultural needs. Income trends in agriculture must be geared to general income trends.

(12)  cf. footnote 1.

(13)  EESC Opinion on the Elaboration of an initiative aimed at establishing a regulatory framework for the employment of migrant agricultural workers from non-EU states (Own-initiative Opinion, OJ C 204 of 18.7.2002, page 92).

(14)  See EESC Opinion on the CAP review, CESE 591/2003, pages 10 and 11.

(15)  See EESC Opinion on the CAP review, CESE 591/2003, p 11.

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