# Official Journal C 335/2012

| | ISSN 1977-091X
  doi:10.3000/1977091X.C_2012.335.eng |
| --- | --- |
| Official Journal
  of the European Union | C 335 |
| | |
| English edition | Information and Notices | Volume 551 November 2012 |

ISSN 1977-091X

doi:10.3000/1977091X.C_2012.335.eng

Official Journal

of the European Union

C 335

English edition

Information and Notices

Volume 551 November 2012

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| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | European Commission |
| 2012/C 335/01 | Euro exchange rates | 1 |
| 2012/C 335/02 | Opinion of the Advisory Committee on restrictive agreements and dominant positions given at its meeting of 25 June 2012 regarding a draft decision relating to Case COMP/39.611 — Water Management Products — Rapporteur: Poland | 2 |
| 2012/C 335/03 | Final Report of the Hearing Officer — COMP/39.611 — Water management products | 3 |
| 2012/C 335/04 | Summary of Commission Decision of 27 June 2012 relating to a proceeding under Article 101 of the Treaty (Case COMP/39.611 — Water management products) (notified under document C(2012) 4313) | 4 |
| | European Data Protection Supervisor |
| 2012/C 335/05 | Executive summary of the Opinion of the European Data Protection Supervisor on the proposal for a Council decision on the conclusion of the Agreement between the European Union and Canada with respect to matters related to supply chain security | 6 |
| 2012/C 335/06 | Executive summary of the Opinion of the European Data Protection Supervisor on the Open-Data Package of the European Commission including a proposal for a directive amending Directive 2003/98/EC on reuse of public sector information (PSI), a Communication on Open Data and Commission Decision 2011/833/EU on the reuse of Commission documents | 8 |
| 2012/C 335/07 | Executive summary of the Opinion of the European Data Protection Supervisor on the Commission Regulation establishing a Union Registry for the trading period commencing on 1 January 2013, and subsequent trading periods, of the Union emissions trading scheme | 10 |
| 2012/C 335/08 | Executive summary of the Opinion of the European Data Protection Supervisor on the Commission Recommendation on preparations for the roll-out of smart metering systems | 13 |
| 2012/C 335/09 | Executive summary of the EDPS Opinion of 14 June 2012 on the proposals for a regulation on European venture capital funds and for a regulation on European social entrepreneurship funds | 16 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

2012/C 335/01

Euro exchange rates

1

2012/C 335/02

Opinion of the Advisory Committee on restrictive agreements and dominant positions given at its meeting of 25 June 2012 regarding a draft decision relating to Case COMP/39.611 — Water Management Products — Rapporteur: Poland

2

2012/C 335/03

Final Report of the Hearing Officer — COMP/39.611 — Water management products

3

2012/C 335/04

Summary of Commission Decision of 27 June 2012 relating to a proceeding under Article 101 of the Treaty (Case COMP/39.611 — Water management products) (notified under document C(2012) 4313)

(notified under document C(2012) 4313)

4

European Data Protection Supervisor

2012/C 335/05

Executive summary of the Opinion of the European Data Protection Supervisor on the proposal for a Council decision on the conclusion of the Agreement between the European Union and Canada with respect to matters related to supply chain security

6

2012/C 335/06

Executive summary of the Opinion of the European Data Protection Supervisor on the Open-Data Package of the European Commission including a proposal for a directive amending Directive 2003/98/EC on reuse of public sector information (PSI), a Communication on Open Data and Commission Decision 2011/833/EU on the reuse of Commission documents

8

2012/C 335/07

Executive summary of the Opinion of the European Data Protection Supervisor on the Commission Regulation establishing a Union Registry for the trading period commencing on 1 January 2013, and subsequent trading periods, of the Union emissions trading scheme

10

2012/C 335/08

Executive summary of the Opinion of the European Data Protection Supervisor on the Commission Recommendation on preparations for the roll-out of smart metering systems

13

2012/C 335/09

Executive summary of the EDPS Opinion of 14 June 2012 on the proposals for a regulation on European venture capital funds and for a regulation on European social entrepreneurship funds

16

| | V   Announcements |
| --- | --- |
| | PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY |
| | European Commission |
| 2012/C 335/10 | Prior notification of a concentration (Case COMP/M.6724 — PAI/Marcolin) — Candidate case for simplified procedure (
  1
  ) | 18 |

V   Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY

European Commission

2012/C 335/10

Prior notification of a concentration (Case COMP/M.6724 — PAI/Marcolin) — Candidate case for simplified procedure (
  1
  )

1

18

| | |
| --- | --- |
| | (1)   Text with EEA relevance |

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(1)   Text with EEA relevance

1

| EN | |
| --- | --- |

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

| 1.11.2012 | EN | Official Journal of the European Union | C 335/1 |
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1.11.2012

EN

Official Journal of the European Union

C 335/1

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Euro exchange rates (1)

31 October 2012

2012/C 335/01

1 euro =

| | Currency | Exchange rate |
| --- | --- | --- |
| USD | US dollar | 1,2993 |
| JPY | Japanese yen | 103,78 |
| DKK | Danish krone | 7,4598 |
| GBP | Pound sterling | 0,80645 |
| SEK | Swedish krona | 8,6000 |
| CHF | Swiss franc | 1,2076 |
| ISK | Iceland króna | |
| NOK | Norwegian krone | 7,3855 |
| BGN | Bulgarian lev | 1,9558 |
| CZK | Czech koruna | 25,064 |
| HUF | Hungarian forint | 284,05 |
| LTL | Lithuanian litas | 3,4528 |
| LVL | Latvian lats | 0,6962 |
| PLN | Polish zloty | 4,1390 |
| RON | Romanian leu | 4,5420 |
| TRY | Turkish lira | 2,3312 |
| AUD | Australian dollar | 1,2528 |
| CAD | Canadian dollar | 1,3005 |
| HKD | Hong Kong dollar | 10,0697 |
| NZD | New Zealand dollar | 1,5810 |
| SGD | Singapore dollar | 1,5853 |
| KRW | South Korean won | 1 417,18 |
| ZAR | South African rand | 11,2692 |
| CNY | Chinese yuan renminbi | 8,1041 |
| HRK | Croatian kuna | 7,5270 |
| IDR | Indonesian rupiah | 12 481,56 |
| MYR | Malaysian ringgit | 3,9597 |
| PHP | Philippine peso | 53,527 |
| RUB | Russian rouble | 40,7049 |
| THB | Thai baht | 39,876 |
| BRL | Brazilian real | 2,6389 |
| MXN | Mexican peso | 16,9685 |
| INR | Indian rupee | 69,9200 |

Currency

Exchange rate

USD

US dollar

1,2993

JPY

Japanese yen

103,78

DKK

Danish krone

7,4598

GBP

Pound sterling

0,80645

SEK

Swedish krona

8,6000

CHF

Swiss franc

1,2076

ISK

Iceland króna

NOK

Norwegian krone

7,3855

BGN

Bulgarian lev

1,9558

CZK

Czech koruna

25,064

HUF

Hungarian forint

284,05

LTL

Lithuanian litas

3,4528

LVL

Latvian lats

0,6962

PLN

Polish zloty

4,1390

RON

Romanian leu

4,5420

TRY

Turkish lira

2,3312

AUD

Australian dollar

1,2528

CAD

Canadian dollar

1,3005

HKD

Hong Kong dollar

10,0697

NZD

New Zealand dollar

1,5810

SGD

Singapore dollar

1,5853

KRW

South Korean won

1 417,18

ZAR

South African rand

11,2692

CNY

Chinese yuan renminbi

8,1041

HRK

Croatian kuna

7,5270

IDR

Indonesian rupiah

12 481,56

MYR

Malaysian ringgit

3,9597

PHP

Philippine peso

53,527

RUB

Russian rouble

40,7049

THB

Thai baht

39,876

BRL

Brazilian real

2,6389

MXN

Mexican peso

16,9685

INR

Indian rupee

69,9200

---

(1)  Source: reference exchange rate published by the ECB.

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| 1.11.2012 | EN | Official Journal of the European Union | C 335/2 |
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1.11.2012

EN

Official Journal of the European Union

C 335/2

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Opinion of the Advisory Committee on restrictive agreements and dominant positions given at its meeting of 25 June 2012 regarding a draft decision relating to Case COMP/39.611 — Water Management Products

Rapporteur: Poland

2012/C 335/02

| 1. | The Advisory Committee agrees with the Commission that the anticompetitive behaviour covered by the draft decision constitutes an agreement and/or concerted practice between undertakings within the meaning of Article 101 of the TFEU. |
| --- | --- |

1.

The Advisory Committee agrees with the Commission that the anticompetitive behaviour covered by the draft decision constitutes an agreement and/or concerted practice between undertakings within the meaning of Article 101 of the TFEU.

| 2. | The Advisory Committee agrees with the Commission's assessment of the product and geographic scope of the agreement and/or concerted practice contained in the draft decision. |
| --- | --- |

2.

The Advisory Committee agrees with the Commission's assessment of the product and geographic scope of the agreement and/or concerted practice contained in the draft decision.

| 3. | The Advisory Committee agrees with the Commission that the undertakings concerned by the draft decision have participated in a single and continuous infringement of Article 101 of the TFEU. |
| --- | --- |

3.

The Advisory Committee agrees with the Commission that the undertakings concerned by the draft decision have participated in a single and continuous infringement of Article 101 of the TFEU.

| 4. | The Advisory Committee agrees with the Commission that the object of the agreement and/or concerted practice was to restrict competition within the meaning of Article 101 of the TFEU. |
| --- | --- |

4.

The Advisory Committee agrees with the Commission that the object of the agreement and/or concerted practice was to restrict competition within the meaning of Article 101 of the TFEU.

| 5. | The Advisory Committee agrees with the Commission that the agreement and/or concerted practice have been capable of appreciably affecting trade between the Member States of the EU. |
| --- | --- |

5.

The Advisory Committee agrees with the Commission that the agreement and/or concerted practice have been capable of appreciably affecting trade between the Member States of the EU.

| 6. | The Advisory Committee agrees with the Commission's assessment as regards the duration of the infringement. |
| --- | --- |

6.

The Advisory Committee agrees with the Commission's assessment as regards the duration of the infringement.

| 7. | The Advisory Committee agrees with the Commission's draft decision as regards the addressees. |
| --- | --- |

7.

The Advisory Committee agrees with the Commission's draft decision as regards the addressees.

| 8. | The Advisory Committee agrees with the Commission that a fine should be imposed on the addressees of the draft decision. |
| --- | --- |

8.

The Advisory Committee agrees with the Commission that a fine should be imposed on the addressees of the draft decision.

| 9. | The Advisory Committee agrees with the Commission on the application of the 2006 Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003. |
| --- | --- |

9.

The Advisory Committee agrees with the Commission on the application of the 2006 Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003.

| 10. | The Advisory Committee agrees with the Commission on the basic amounts of the fines. |
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10.

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

| 11. | The Advisory Committee agrees with the determination of the duration for the purpose of calculating the fines. |
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11.

The Advisory Committee agrees with the determination of the duration for the purpose of calculating the fines.

| 12. | The Advisory Committee agrees with the Commission that there are no aggravating and no mitigating circumstances applicable in this case. |
| --- | --- |

12.

The Advisory Committee agrees with the Commission that there are no aggravating and no mitigating circumstances applicable in this case.

| 13. | The Advisory Committee agrees with the Commission as regards the reduction of the fines based on the 2006 Leniency Notice. |
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13.

The Advisory Committee agrees with the Commission as regards the reduction of the fines based on the 2006 Leniency Notice.

| 14. | The Advisory Committee agrees with the Commission as regards the reduction of the fines based on the 2008 Settlement Notice. |
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14.

The Advisory Committee agrees with the Commission as regards the reduction of the fines based on the 2008 Settlement Notice.

| 15. | The Advisory Committee agrees with the Commission on the final amounts of the fines. |
| --- | --- |

15.

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

| 16. | The Advisory Committee recommends the publication of its Opinion in the Official Journal of the European Union. |
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16.

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

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| 1.11.2012 | EN | Official Journal of the European Union | C 335/3 |
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1.11.2012

EN

Official Journal of the European Union

C 335/3

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Final Report of the Hearing Officer (1)

COMP/39.611 — Water management products

2012/C 335/03

On 27 January 2011, the European Commission initiated proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003 (2) against Flamco Wemefa GmbH, Flamco Holding B.V., voestalpine Polynorm B.V. and voestalpine AG (‘Flamco’), Reflex Winkelman GmbH & Co. and Winkelman Group GmbH & Co. KG (‘Reflex’) and TA Hydronics Switzerland AG (formerly ‘Pneumatex AG’ and hereafter referred to as ‘Pneumatex’) (together ‘the parties’).

Following settlement discussions and settlement submissions in accordance with Article 10a(2) of Regulation (EC) No 773/2004 (3), the European Commission adopted a statement of objections (the ‘SO’) addressed to Flamco, Reflex and Pneumatex stating that the parties had participated in a single and continuous infringement of Article 101 of the Treaty on the Functioning of the European Union. The infringement was described as price coordination for water management products, comprising pressurisation systems and products for quality assurance. The parties' respective replies to the SO confirmed that the SO addressed to them reflected the contents of their settlement submissions.

Pursuant to Article 16 of the Terms of Reference, I have examined whether the draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known their views, and I have come to a positive conclusion.

In view of the above, and taking into account that the parties have not addressed any requests or complaints to me (4), I consider that the effective exercise of the procedural rights of all participants to the proceedings in this case has been respected.

Brussels, 25 June 2012.

Wouter WILS

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(1)  Pursuant to Articles 16 and 17 of Decision of the President of the European Commission 2011/695/EU of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings, OJ L 275, 20.10.2011, p. 29 (the ‘Terms of Reference’).

1

(2)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 4.1.2003, p. 1.

2

(3)  Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty, OJ L 123, 27.4.2004, p.18.

3

(4)  Under Article 15(2) of the Terms of Reference, parties to the proceedings in cartel cases which engage in settlement discussions pursuant to Article 10a of Regulation (EC) No 773/2004 may call upon the hearing officer at any stage of the procedure in order to ensure the effective exercise of their procedural rights. See also paragraph 18 of Commission Notice 2008/C 167/01.

4

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| 1.11.2012 | EN | Official Journal of the European Union | C 335/4 |
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1.11.2012

EN

Official Journal of the European Union

C 335/4

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Summary of Commission Decision

of 27 June 2012

relating to a proceeding under Article 101 of the Treaty (1)

(Case COMP/39.611 — Water management products)

(notified under document C(2012) 4313)

(Only the English text is authentic)

2012/C 335/04

On 27 June 2012, the Commission adopted a decision relating to a proceeding under Article 101 of the Treaty. In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003
   (2), the Commission herewith publishes the names of the parties and the main content of the decision, including any penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business secrets.

1.   INTRODUCTION

| (1) | The Decision relates to a single and continuous infringement of Article 101 of the Treaty relating to the production and sale of water management products (WMP). WMP comprise pressurisation systems and products for quality assurance. Pressurisation systems cover pressure maintenance systems, expansion vessels and water make-up systems. Products for quality assurance cover degassing systems, air vents, separators and safety valves. The Decision is addressed to the following undertakings: (i) Flamco (3); (ii) Reflex (4) and (iii) Pneumatex (5). |
| --- | --- |

(1)

The Decision relates to a single and continuous infringement of Article 101 of the Treaty relating to the production and sale of water management products (WMP). WMP comprise pressurisation systems and products for quality assurance. Pressurisation systems cover pressure maintenance systems, expansion vessels and water make-up systems. Products for quality assurance cover degassing systems, air vents, separators and safety valves. The Decision is addressed to the following undertakings: (i) Flamco (3); (ii) Reflex (4) and (iii) Pneumatex (5).

2.   CASE DESCRIPTION

2.1.   Procedure

| (2) | Following the immunity application of Pneumatex, the Commission carried out unannounced inspections in December 2008 and April 2009 at the premises of Flamco, Reflex and Pneumatex and thereafter sent out several requests for information. |
| --- | --- |

(2)

Following the immunity application of Pneumatex, the Commission carried out unannounced inspections in December 2008 and April 2009 at the premises of Flamco, Reflex and Pneumatex and thereafter sent out several requests for information.

| (3) | The Commission initiated proceedings in this case on 27 January 2011. Settlement discussions took place between 16 February 2011 and 20 March 2012. Subsequently, the cartel members submitted to the Commission their formal request to settle pursuant to Article 10a(2) of Regulation (EC) No 773/2004. On 25 April 2012, the Commission adopted a statement of objections and the parties all confirmed that its content reflected their submissions and that they remained committed to follow the settlement procedure. The Advisory Committee on restrictive practices and dominant positions issued a favourable opinion on 25 June 2012 and the Commission adopted the Decision on 27 June 2012. |
| --- | --- |

(3)

The Commission initiated proceedings in this case on 27 January 2011. Settlement discussions took place between 16 February 2011 and 20 March 2012. Subsequently, the cartel members submitted to the Commission their formal request to settle pursuant to Article 10a(2) of Regulation (EC) No 773/2004. On 25 April 2012, the Commission adopted a statement of objections and the parties all confirmed that its content reflected their submissions and that they remained committed to follow the settlement procedure. The Advisory Committee on restrictive practices and dominant positions issued a favourable opinion on 25 June 2012 and the Commission adopted the Decision on 27 June 2012.

2.2.   Addressees and duration of the infringement

| (4) | The following undertakings infringed Article 101 of the Treaty by participating, during the periods indicated below, in anti-competitive activities with respect to the production and sale of WMP:






  (a) | Flamco and Pneumatex from 21 June 2006 to 15 May 2008; |
| --- | --- | --- |

(4)

The following undertakings infringed Article 101 of the Treaty by participating, during the periods indicated below, in anti-competitive activities with respect to the production and sale of WMP:

(a)

Flamco and Pneumatex from 21 June 2006 to 15 May 2008;

| (b) | Reflex from 21 June 2006 to 13 May 2008. |
| --- | --- |

(b)

Reflex from 21 June 2006 to 13 May 2008.

2.3.   Summary of the infringement

| (5) | Flamco, Pneumatex and Reflex participated in a cartel, the overall aim of which was to coordinate prices in the WMP sector in Germany. In autumn 2006, Reflex and Pneumatex also aimed at coordinating prices in some other Member States. Flamco was involved in contacts only as regards the German market for WMP. |
| --- | --- |

(5)

Flamco, Pneumatex and Reflex participated in a cartel, the overall aim of which was to coordinate prices in the WMP sector in Germany. In autumn 2006, Reflex and Pneumatex also aimed at coordinating prices in some other Member States. Flamco was involved in contacts only as regards the German market for WMP.

| (6) | The undertakings informed each other through bilateral contacts of the amount and date of planned price increases and exchanged information on current prices, including gross price lists, and other commercially sensitive information with the ultimate aim to coordinate prices of WMP. The undertakings communicated and/or received information from each other regarding their pricing intentions and are presumed to have taken this into account when determining their own conduct on the market. |
| --- | --- |

(6)

The undertakings informed each other through bilateral contacts of the amount and date of planned price increases and exchanged information on current prices, including gross price lists, and other commercially sensitive information with the ultimate aim to coordinate prices of WMP. The undertakings communicated and/or received information from each other regarding their pricing intentions and are presumed to have taken this into account when determining their own conduct on the market.

| (7) | The geographic scope of the infringement, as regards all three participants, concerned Germany during the entire period of the infringement. In addition, in autumn 2006 Reflex and Pneumatex exchanged information on price increases amounting to price coordination concerning some other Member States, namely, France, Belgium, Spain, Portugal, Luxembourg, Italy, Finland, Sweden, Hungary, the United Kingdom, Greece, the Netherlands and Denmark. |
| --- | --- |

(7)

The geographic scope of the infringement, as regards all three participants, concerned Germany during the entire period of the infringement. In addition, in autumn 2006 Reflex and Pneumatex exchanged information on price increases amounting to price coordination concerning some other Member States, namely, France, Belgium, Spain, Portugal, Luxembourg, Italy, Finland, Sweden, Hungary, the United Kingdom, Greece, the Netherlands and Denmark.

| (8) | Overall, the cartel lasted from 21 June 2006 until 15 May 2008 (13 May 2008 for Reflex). The cartel contacts had a varying intensity in the course of the overall duration of the cartel. The contacts were less intense during the period from mid-December 2006 to mid-April 2008. It is therefore considered that this period constituted a period of limited activity of the cartel. |
| --- | --- |

(8)

Overall, the cartel lasted from 21 June 2006 until 15 May 2008 (13 May 2008 for Reflex). The cartel contacts had a varying intensity in the course of the overall duration of the cartel. The contacts were less intense during the period from mid-December 2006 to mid-April 2008. It is therefore considered that this period constituted a period of limited activity of the cartel.

2.4.   Remedies

| (9) | The Decision applies the 2006 Guidelines on Fines (6). With the exception of Pneumatex, the Decision imposes fines on all relevant companies of the undertakings listed under point 4 above. |
| --- | --- |

(9)

The Decision applies the 2006 Guidelines on Fines (6). With the exception of Pneumatex, the Decision imposes fines on all relevant companies of the undertakings listed under point 4 above.

2.4.1.   Basic amount of the fine

| (10) | The basic amount of fine is set at 15 % of the undertakings' sales of WMP in the geographic area listed under point 7 above. |
| --- | --- |

(10)

The basic amount of fine is set at 15 % of the undertakings' sales of WMP in the geographic area listed under point 7 above.

| (11) | The basic amount is multiplied by the number of years of participation in the infringement in order to take fully into account the duration of the participation for each undertaking in the infringement individually. |
| --- | --- |

(11)

The basic amount is multiplied by the number of years of participation in the infringement in order to take fully into account the duration of the participation for each undertaking in the infringement individually.

| (12) | As specified above, the cartel went through a period of limited activity which should not be taken into account for the purposes of calculating the fines. The duration to be taken into account amounts to a period of six months for Flamco, Reflex and Pneumatex. |
| --- | --- |

(12)

As specified above, the cartel went through a period of limited activity which should not be taken into account for the purposes of calculating the fines. The duration to be taken into account amounts to a period of six months for Flamco, Reflex and Pneumatex.

2.4.2.   Adjustments to the basic amount

2.4.2.1.   Aggravating and mitigating circumstances

| (13) | There are no aggravating or mitigating circumstances in this case. |
| --- | --- |

(13)

There are no aggravating or mitigating circumstances in this case.

2.4.2.2.   Specific increase for deterrence

| (14) | In this case, there is no need to increase the fine in order to achieve a sufficiently deterrent effect. |
| --- | --- |

(14)

In this case, there is no need to increase the fine in order to achieve a sufficiently deterrent effect.

2.4.3.   Application of the 10 % turnover limit

| (15) | In this particular case, the adjusted basic amounts do not exceed 10 % of the total turnover of any of the undertakings achieved in 2011. |
| --- | --- |

(15)

In this particular case, the adjusted basic amounts do not exceed 10 % of the total turnover of any of the undertakings achieved in 2011.

2.4.4.   Application of the 2006 Leniency Notice

| (16) | Pneumatex is granted immunity from fines. |
| --- | --- |

(16)

Pneumatex is granted immunity from fines.

2.4.5.   Application of the Settlement Notice

| (17) | As a result of the application of the Settlement Notice, the amount of the fine to be imposed on Flamco and Reflex is reduced by 10 %. |
| --- | --- |

(17)

As a result of the application of the Settlement Notice, the amount of the fine to be imposed on Flamco and Reflex is reduced by 10 %.

3.   FINES IMPOSED BY THE DECISION

| (18) | For the single and continuous infringement dealt with in this Decision, the following fines are imposed:






  (a) | on Reflex Winkelmann GmbH & Co. KG and Winkelmann Group GmbH & Co. KG, jointly and severally: EUR 9 791 000; |
| --- | --- | --- |

(18)

For the single and continuous infringement dealt with in this Decision, the following fines are imposed:

(a)

on Reflex Winkelmann GmbH & Co. KG and Winkelmann Group GmbH & Co. KG, jointly and severally: EUR 9 791 000;

| (b) | on TA Hydronics Switzerland AG: EUR 0; |
| --- | --- |

(b)

on TA Hydronics Switzerland AG: EUR 0;

| (c) | on Flamco GmbH, Flamco Holding B.V., voestalpine Polynorm B.V. and voestalpine AG, jointly and severally: EUR 3 870 000. |
| --- | --- |

(c)

on Flamco GmbH, Flamco Holding B.V., voestalpine Polynorm B.V. and voestalpine AG, jointly and severally: EUR 3 870 000.

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(1)  With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty have become Articles 101 and 102, respectively, of the Treaty on the Functioning of the European Union (‘the Treaty’). The two sets of provisions are, in substance, identical. References to Articles 101 and 102 of the Treaty should be understood as references to Articles 81 and 82, respectively, of the EC Treaty where appropriate.

(2)  OJ L 1, 4.1.2003, p. 1.

(3)  The relevant companies are Flamco GmbH (formerly ‘Flamco Wemefa GmbH’), Flamco Holding B.V., voestalpine Polynorm B.V. (formerly ‘voestalpine Polynorm N.V.’) and voestalpine AG.

(4)  The relevant companies are Reflex Winkelmann GmbH & Co. KG and Winkelmann Group GmbH & Co. KG.

(5)  The relevant companies are TA Hydronics Switzerland AG (formerly ‘Pneumatex AG’).

(6)  OJ C 210, 1.9.2006, p. 2.

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European Data Protection Supervisor

| 1.11.2012 | EN | Official Journal of the European Union | C 335/6 |
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1.11.2012

EN

Official Journal of the European Union

C 335/6

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Executive summary of the Opinion of the European Data Protection Supervisor on the proposal for a Council decision on the conclusion of the Agreement between the European Union and Canada with respect to matters related to supply chain security

(The full text of this Opinion can be found in EN, FR & DE on the EDPS website: http://www.edps.europa.eu)

2012/C 335/05

I.   Introduction

I.1.   Consultation of the EDPS

| 1. | On 28 March 2012, the Commission adopted a proposal for a Council decision on the conclusion of the Agreement between the European Union and Canada with respect to matters related to supply chain security (1) (hereinafter: ‘the draft agreement’). The proposal was sent to the EDPS on the same day. |
| --- | --- |

1.

On 28 March 2012, the Commission adopted a proposal for a Council decision on the conclusion of the Agreement between the European Union and Canada with respect to matters related to supply chain security (1) (hereinafter: ‘the draft agreement’). The proposal was sent to the EDPS on the same day.

I.2.   Context and objective of the proposal

| 2. | The relations between the EU and Canada in the area of customs are based on the Agreement on customs cooperation and mutual assistance in customs matters (CMAA) of 1998 (2). Article 23 of the CMAA allows the contracting parties to expand this agreement to increase customs cooperation. |
| --- | --- |

2.

The relations between the EU and Canada in the area of customs are based on the Agreement on customs cooperation and mutual assistance in customs matters (CMAA) of 1998 (2). Article 23 of the CMAA allows the contracting parties to expand this agreement to increase customs cooperation.

| 3. | The proposal aims at expanding the CMAA through a new, complementary agreement (hereinafter ‘the draft agreement’) and at establishing a legal basis for EU-Canada customs cooperation on matters of supply chain security and related risk management, similarly to the current cooperation with the United States, on which the EDPS adopted an opinion on 9 February 2012 (3). |
| --- | --- |

3.

The proposal aims at expanding the CMAA through a new, complementary agreement (hereinafter ‘the draft agreement’) and at establishing a legal basis for EU-Canada customs cooperation on matters of supply chain security and related risk management, similarly to the current cooperation with the United States, on which the EDPS adopted an opinion on 9 February 2012 (3).

I.3.   Aim of the EDPS Opinion

| 4. | According to the proposal, the draft agreement also aims at providing a legal basis for the exchange of information. While the exchange of personal data is not the main aim of the proposal, significant exchanges of personal data will take place, especially related to operators. The present Opinion will analyse how the exchange of such personal data is regulated in the draft agreement. The Opinion will also analyse the relevant provisions of the CMAA agreement insofar as they have an effect on the processing of personal data under the draft agreement. Taking into account that the draft agreement provides the legal basis for further cooperation, the Opinion also provides recommendations for future decisions or agreements requiring the exchange of personal data that may be adopted on the basis of the draft agreement. |
| --- | --- |

4.

According to the proposal, the draft agreement also aims at providing a legal basis for the exchange of information. While the exchange of personal data is not the main aim of the proposal, significant exchanges of personal data will take place, especially related to operators. The present Opinion will analyse how the exchange of such personal data is regulated in the draft agreement. The Opinion will also analyse the relevant provisions of the CMAA agreement insofar as they have an effect on the processing of personal data under the draft agreement. Taking into account that the draft agreement provides the legal basis for further cooperation, the Opinion also provides recommendations for future decisions or agreements requiring the exchange of personal data that may be adopted on the basis of the draft agreement.

IV.   Conclusion

| 27. | The EDPS welcomes the reference to the applicability of the confidentiality and privacy requirements of the contracting parties and the reference to Article 16 of the CMAA. However, he recommends adding the following in the text of the draft agreement where possible or in future decisions or agreements adopted on the basis of the draft agreement:






  — | clarifying that matters not falling within the common commercial policy should be excluded from the scope of the agreement, |
| --- | --- | --- |

27.

The EDPS welcomes the reference to the applicability of the confidentiality and privacy requirements of the contracting parties and the reference to Article 16 of the CMAA. However, he recommends adding the following in the text of the draft agreement where possible or in future decisions or agreements adopted on the basis of the draft agreement:

—

clarifying that matters not falling within the common commercial policy should be excluded from the scope of the agreement,

| — | narrowing and better defining the scope of the exchanges of personal data, |
| --- | --- |

—

narrowing and better defining the scope of the exchanges of personal data,

| — | specifying the categories of data to be exchanged, |
| --- | --- |

—

specifying the categories of data to be exchanged,

| — | as regards the processing of sensitive data, providing for adequate safeguards and subjecting where relevant the processing to prior check by EU national data protection authorities and the EDPS, |
| --- | --- |

—

as regards the processing of sensitive data, providing for adequate safeguards and subjecting where relevant the processing to prior check by EU national data protection authorities and the EDPS,

| — | guaranteeing to all data subjects the rights of access, rectification and effective judicial and administrative redress, |
| --- | --- |

—

guaranteeing to all data subjects the rights of access, rectification and effective judicial and administrative redress,

| — | informing data subjects on the characteristics of the processing as developed above, |
| --- | --- |

—

informing data subjects on the characteristics of the processing as developed above,

| — | requiring adequate security measures, |
| --- | --- |

—

requiring adequate security measures,

| — | mentioning that compliance with the contracting parties personal data protection law shall be supervised by EU national data protection authorities, the EDPS and Canada's privacy commissioners, |
| --- | --- |

—

mentioning that compliance with the contracting parties personal data protection law shall be supervised by EU national data protection authorities, the EDPS and Canada's privacy commissioners,

| — | consulting the EDPS on further JCCC decisions regarding the processing of personal data. |
| --- | --- |

—

consulting the EDPS on further JCCC decisions regarding the processing of personal data.

Done at Brussels, 12 April 2012.

Giovanni BUTTARELLI

Assistant European Data Protection Supervisor

---

(1)  COM(2011) 937 final.

1

(2)  Agreement between the European Community and Canada on customs cooperation and mutual assistance in customs matters (OJ L 7, 13.1.1998, p. 38).

2

(3)  Agreement between the European Community and the United States of America on intensifying and broadening the Agreement between the European Community and the United States of America on customs cooperation and mutual assistance in customs matters to include cooperation on container security and related matters (OJ L 304, 30.9.2004, p. 34). See also the recent proposal for a Council decision on a Union position within the EU-US Joint Customs Cooperation Committee regarding mutual recognition of the ‘Authorised economic operator’ programme of the European Union and the ‘Customs-trade partnership against terrorism’ programme of the United States (COM(2011) 937 final) and the EDPS Opinion of 9 February 2012, available on: http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2012/12-02-09_EU_US_Joint_Customs_EN.pdf

3

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| 1.11.2012 | EN | Official Journal of the European Union | C 335/8 |
| --- | --- | --- | --- |

1.11.2012

EN

Official Journal of the European Union

C 335/8

---

Executive summary of the Opinion of the European Data Protection Supervisor on the ‘Open-Data Package’ of the European Commission including a proposal for a directive amending Directive 2003/98/EC on reuse of public sector information (PSI), a Communication on Open Data and Commission Decision 2011/833/EU on the reuse of Commission documents

(The full text of this Opinion can be found in English, French and German on the EDPS website: http://www.edps.europa.eu)

2012/C 335/06

1.   Introduction

1.1.   Background

| 1. | On 12 December 2011, the Commission adopted a proposal for a directive amending Directive 2003/98/EC on reuse of public sector information (PSI) (the ‘proposal’) (1). The proposal is part of the ‘Open-Data Package’, which also includes two other documents adopted on the same day: (i) a Commission Communication entitled ‘Open data — An engine for innovation, growth and transparent governance’ (the ‘Communication’) (2) and (ii) a Commission Decision on the reuse of Commission documents (the ‘Decision’) (3). |
| --- | --- |

1.

On 12 December 2011, the Commission adopted a proposal for a directive amending Directive 2003/98/EC on reuse of public sector information (PSI) (the ‘proposal’) (1). The proposal is part of the ‘Open-Data Package’, which also includes two other documents adopted on the same day: (i) a Commission Communication entitled ‘Open data — An engine for innovation, growth and transparent governance’ (the ‘Communication’) (2) and (ii) a Commission Decision on the reuse of Commission documents (the ‘Decision’) (3).

| 2. | The EDPS has not been consulted as required by Article 28(2) of Regulation (EC) No 45/2001. This is regrettable in view of the large amount of personal data potentially concerned by this initiative. This Opinion is therefore based on Article 41(2) of the same Regulation. The EDPS recommends that a reference to this Opinion be included in the preamble of the instrument adopted. |
| --- | --- |

2.

The EDPS has not been consulted as required by Article 28(2) of Regulation (EC) No 45/2001. This is regrettable in view of the large amount of personal data potentially concerned by this initiative. This Opinion is therefore based on Article 41(2) of the same Regulation. The EDPS recommends that a reference to this Opinion be included in the preamble of the instrument adopted.

1.2.   Objectives and scope of the proposal and the Decision; focus of the EDPS Opinion

| 3. | The objective of the proposal is to update and amend the existing text of Directive 2003/98/EC on re-use of public sector information (the ‘PSI Directive’). |
| --- | --- |

3.

The objective of the proposal is to update and amend the existing text of Directive 2003/98/EC on re-use of public sector information (the ‘PSI Directive’).

| 4. | The PSI Directive aims at facilitating the reuse of public sector information throughout the European Union by harmonising the basic conditions for reuse and removing barriers to reuse in the internal market. The PSI Directive contains provisions on non-discrimination, charging, exclusive arrangements, transparency, licensing and practical tools to facilitate the discovery and reuse of public documents (4). |
| --- | --- |

4.

The PSI Directive aims at facilitating the reuse of public sector information throughout the European Union by harmonising the basic conditions for reuse and removing barriers to reuse in the internal market. The PSI Directive contains provisions on non-discrimination, charging, exclusive arrangements, transparency, licensing and practical tools to facilitate the discovery and reuse of public documents (4).

| 5. | One of the key novel policy objectives of the proposal, as described in Section 5.1 of the Communication, is the objective to introduce the ‘principle that all public information that is not explicitly covered by one of the exceptions is reusable for both commercial and non-commercial purposes’ (5). In particular, the proposed amendment to Article 3(1) of the PSI Directive specifically requires Member States to ensure that ‘existing documents’ held by public sector bodies of the Member States shall be ‘reusable for commercial and non-commercial purposes’. |
| --- | --- |

5.

One of the key novel policy objectives of the proposal, as described in Section 5.1 of the Communication, is the objective to introduce the ‘principle that all public information that is not explicitly covered by one of the exceptions is reusable for both commercial and non-commercial purposes’ (5). In particular, the proposed amendment to Article 3(1) of the PSI Directive specifically requires Member States to ensure that ‘existing documents’ held by public sector bodies of the Member States shall be ‘reusable for commercial and non-commercial purposes’.

| 6. | Other relevant new provisions of the proposal include, subject to some exceptions, the limitation on the amounts that can be charged by the public sector for the information reused to ‘marginal costs incurred for their reproduction and dissemination’ (revised Article 6(1)). Further, the proposal also expands the scope of the PSI Directive to include libraries, archives, museums and university libraries. |
| --- | --- |

6.

Other relevant new provisions of the proposal include, subject to some exceptions, the limitation on the amounts that can be charged by the public sector for the information reused to ‘marginal costs incurred for their reproduction and dissemination’ (revised Article 6(1)). Further, the proposal also expands the scope of the PSI Directive to include libraries, archives, museums and university libraries.

| 7. | The objective of the Decision is to establish the rules applicable to the Commission for the reuse of its own documents. |
| --- | --- |

7.

The objective of the Decision is to establish the rules applicable to the Commission for the reuse of its own documents.

| 8. | This Opinion focuses, in Sections 2 and 3, on the proposal itself while Section 4 briefly comments on the Decision. Section 2 provides a general overview of the data protection concerns relating to open data, with challenges and considerations that serve as important points of reference and determine, to a large part, the approach that the EDPS takes in his more specific recommendations in Section 3. |
| --- | --- |

8.

This Opinion focuses, in Sections 2 and 3, on the proposal itself while Section 4 briefly comments on the Decision. Section 2 provides a general overview of the data protection concerns relating to open data, with challenges and considerations that serve as important points of reference and determine, to a large part, the approach that the EDPS takes in his more specific recommendations in Section 3.

5.   Conclusions

| 72. | The reuse of PSI that contains personal data may bring significant benefits, but also entails considerable risks to the protection of personal data. In light of these risks, the EDPS recommends that the proposal should more clearly define in what situations and subject to what safeguards information containing personal data may be required to be made available for reuse. In particular, the proposal should:






  — | establish more clearly the scope of applicability of the PSI Directive to personal data (Section 3.1), |
| --- | --- | --- |

72.

The reuse of PSI that contains personal data may bring significant benefits, but also entails considerable risks to the protection of personal data. In light of these risks, the EDPS recommends that the proposal should more clearly define in what situations and subject to what safeguards information containing personal data may be required to be made available for reuse. In particular, the proposal should:

—

establish more clearly the scope of applicability of the PSI Directive to personal data (Section 3.1),

| — | require that an assessment be carried out by the public sector body concerned before any PSI containing personal data may be made available for reuse (Section 3.1), |
| --- | --- |

—

require that an assessment be carried out by the public sector body concerned before any PSI containing personal data may be made available for reuse (Section 3.1),

| — | where appropriate, require that data be fully or partially anonymised and license conditions specifically prohibit re-identification of individuals and the reuse of personal data for purposes that may individually affect the data subjects (Sections 3.2 and 3.3), |
| --- | --- |

—

where appropriate, require that data be fully or partially anonymised and license conditions specifically prohibit re-identification of individuals and the reuse of personal data for purposes that may individually affect the data subjects (Sections 3.2 and 3.3),

| — | require that the terms of the licence to reuse PSI include a data protection clause, whenever personal data are processed (Section 3.3), |
| --- | --- |

—

require that the terms of the licence to reuse PSI include a data protection clause, whenever personal data are processed (Section 3.3),

| — | where necessary considering the risks to the protection of personal data, require applicants to demonstrate (via a data protection impact assessment or otherwise) that any risks to the protection of personal data are adequately addressed and that the applicant will process data in compliance with applicable data protection law (Section 3.3, |
| --- | --- |

—

where necessary considering the risks to the protection of personal data, require applicants to demonstrate (via a data protection impact assessment or otherwise) that any risks to the protection of personal data are adequately addressed and that the applicant will process data in compliance with applicable data protection law (Section 3.3,

| — | clarify that reuse can be made contingent upon the purpose for which reuse is made, in derogation from the general rule allowing reuse for any commercial and non-commercial purposes (Section 3.3). |
| --- | --- |

—

clarify that reuse can be made contingent upon the purpose for which reuse is made, in derogation from the general rule allowing reuse for any commercial and non-commercial purposes (Section 3.3).

| 73. | In addition, the EDPS suggests:






  — | to consider allowing costs of pre-processing (such as digitalisation), anonymisation and aggregation to be charged to license-holders where appropriate (Section 3.5), and |
| --- | --- | --- |

73.

In addition, the EDPS suggests:

—

to consider allowing costs of pre-processing (such as digitalisation), anonymisation and aggregation to be charged to license-holders where appropriate (Section 3.5), and

| — | that the Commission develops further guidance, focusing on anonymisation and licensing and consult the WP29 in this regard (Section 3.6). |
| --- | --- |

—

that the Commission develops further guidance, focusing on anonymisation and licensing and consult the WP29 in this regard (Section 3.6).

Done at Brussels, 18 April 2012.

Peter HUSTINX

European Data Protection Supervisor

---

(1)  COM(2011) 877 final.

1

(2)  COM(2011) 882 final.

2

(3)  2011/833/EU.

3

(4)  See Explanatory Memorandum to the proposal, Section 1.

4

(5)  See also Section 3.2, paragraph 6 of the Explanatory Memorandum to the proposal which calls for action at Union level to ‘guarantee’ that ‘reuse is allowed for valuable core public sector data across Member States’; and Section 5, heading ‘Legislative amendments’, item (iii) of the Executive Summary of the Impact Assessment, which calls for ‘amending the general principle to make accessible documents reusable’.

5

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| 1.11.2012 | EN | Official Journal of the European Union | C 335/10 |
| --- | --- | --- | --- |

1.11.2012

EN

Official Journal of the European Union

C 335/10

---

Executive summary of the Opinion of the European Data Protection Supervisor on the Commission Regulation establishing a Union Registry for the trading period commencing on 1 January 2013, and subsequent trading periods, of the Union emissions trading scheme

(The full text of this Opinion can be found in English, French and German on the EDPS website: http://www.edps.europa.eu)

2012/C 335/07

1.   Introduction

1.1.   Background

| 1. | On 18 November 2011, the Commission adopted Commission Regulation (EU) No 1193/2011 establishing a Union Registry for the trading period commencing on 1 January 2013, and subsequent trading periods, of the Union emissions trading scheme pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision No 280/2004/EC of the European Parliament and of the Council and amending Commission Regulations (EC) No 2216/2004 and (EU) No 920/2010 (the ‘Regulation’) (1). The Regulation was sent to the EDPS for consultation on the same date. |
| --- | --- |

1.

On 18 November 2011, the Commission adopted Commission Regulation (EU) No 1193/2011 establishing a Union Registry for the trading period commencing on 1 January 2013, and subsequent trading periods, of the Union emissions trading scheme pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision No 280/2004/EC of the European Parliament and of the Council and amending Commission Regulations (EC) No 2216/2004 and (EU) No 920/2010 (the ‘Regulation’) (1). The Regulation was sent to the EDPS for consultation on the same date.

| 2. | Already before the adoption of the Regulation, the EDPS was given the possibility to provide informal comments. Some of these comments have been taken into account in the Regulation, and the EDPS notes that the data protections safeguards have been strengthened as a result. |
| --- | --- |

2.

Already before the adoption of the Regulation, the EDPS was given the possibility to provide informal comments. Some of these comments have been taken into account in the Regulation, and the EDPS notes that the data protections safeguards have been strengthened as a result.

| 3. | The EDPS welcomes the fact that he is formally consulted by the Commission and that a reference to the present Opinion is included in the preamble of the instrument adopted. |
| --- | --- |

3.

The EDPS welcomes the fact that he is formally consulted by the Commission and that a reference to the present Opinion is included in the preamble of the instrument adopted.

1.2.   Objectives and scope of the Regulation

| 4. | The EU Emissions Trading System (‘ETS’) is one of the policies introduced across the European Union (‘EU’) to help meet EU greenhouse gas emissions reduction targets under the Kyoto Protocol. The ETS creates a compliance regime for operators and aims at ensuring that emissions are effectively capped across the EU (2). |
| --- | --- |

4.

The EU Emissions Trading System (‘ETS’) is one of the policies introduced across the European Union (‘EU’) to help meet EU greenhouse gas emissions reduction targets under the Kyoto Protocol. The ETS creates a compliance regime for operators and aims at ensuring that emissions are effectively capped across the EU (2).

| 5. | The Regulation amends and will replace as of 1 January 2013 earlier Commission Regulations on the subject, in particular, Commission Regulations (EC) No 2216/2004 and (EU) No 920/2010 (3), both adopted to provide the rules ‘for a standardised and secured system of registries’. |
| --- | --- |

5.

The Regulation amends and will replace as of 1 January 2013 earlier Commission Regulations on the subject, in particular, Commission Regulations (EC) No 2216/2004 and (EU) No 920/2010 (3), both adopted to provide the rules ‘for a standardised and secured system of registries’.

| 6. | One of the key novelties introduced via the Regulation is the establishment, as of 2012, of a centralised, Union Registry, instead of the previous system of a combination of national registries. |
| --- | --- |

6.

One of the key novelties introduced via the Regulation is the establishment, as of 2012, of a centralised, Union Registry, instead of the previous system of a combination of national registries.

| 7. | The Union Registry and the so-called European Union Transaction Log (or ‘EUTL’), which has already been in place at the EU level, are two sub-systems hosted and operated by the European Commission. They have two different functions but are complementary systems. |
| --- | --- |

7.

The Union Registry and the so-called European Union Transaction Log (or ‘EUTL’), which has already been in place at the EU level, are two sub-systems hosted and operated by the European Commission. They have two different functions but are complementary systems.

| 8. | The Union Registry holds the accounts of actors involved in the ETS (e.g. operator holding accounts, aircraft operating holding accounts, trading accounts, auction accounts) and records transactions performed between accounts. The Union Registry, thus, is a central electronic registry at EU level to support emission trading by account holders within and across Member States. |
| --- | --- |

8.

The Union Registry holds the accounts of actors involved in the ETS (e.g. operator holding accounts, aircraft operating holding accounts, trading accounts, auction accounts) and records transactions performed between accounts. The Union Registry, thus, is a central electronic registry at EU level to support emission trading by account holders within and across Member States.

| 9. | The EUTL, in turn, records the allocations, transfer and cancellation of CO2 emission allowances in the EU and checks the consistency and coherence of certain operations. |
| --- | --- |

9.

The EUTL, in turn, records the allocations, transfer and cancellation of CO2 emission allowances in the EU and checks the consistency and coherence of certain operations.

2.   Objectives and structure of the EDPS opinion

| 10. | While the main objective of the Regulation is not the processing of personal data, the Regulation nevertheless requires the processing of personal data, including criminal record information and information on suspected criminal activities. These data are processed in order to ensure that the accounts will not be misused for criminal activities. |
| --- | --- |

10.

While the main objective of the Regulation is not the processing of personal data, the Regulation nevertheless requires the processing of personal data, including criminal record information and information on suspected criminal activities. These data are processed in order to ensure that the accounts will not be misused for criminal activities.

| 11. | The personal data may relate to individuals acting on behalf of the account-holders such as their ‘directors’ and authorised representatives. In addition, account-holders themselves may also be natural persons. If so, their personal data may also be processed. Further, some data are also collected about beneficial owners of the account-holders, who may also be individuals (4). |
| --- | --- |

11.

The personal data may relate to individuals acting on behalf of the account-holders such as their ‘directors’ and authorised representatives. In addition, account-holders themselves may also be natural persons. If so, their personal data may also be processed. Further, some data are also collected about beneficial owners of the account-holders, who may also be individuals (4).

| 12. | In light of the — often sensitive — personal data that are required to be processed under the Regulation, the EDPS recommends that adequate data protection safeguards should be established in the Regulation. |
| --- | --- |

12.

In light of the — often sensitive — personal data that are required to be processed under the Regulation, the EDPS recommends that adequate data protection safeguards should be established in the Regulation.

| 13. | Considering that the Regulation has already been adopted, the primary objective of this Opinion is to help ensure that the EDPS recommendations will be taken into account when the Regulation will be amended, which is foreseen for the end of 2012. |
| --- | --- |

13.

Considering that the Regulation has already been adopted, the primary objective of this Opinion is to help ensure that the EDPS recommendations will be taken into account when the Regulation will be amended, which is foreseen for the end of 2012.

| 14. | In addition, the recommendations provided in the Opinion may also serve to guide the Commission and national administrators when implementing the necessary data protection safeguards at the practical level. For more detail on practical implementation, see paragraphs 41-43 calling for the preparation of a comprehensive data protection policy, paragraph 36 on other practical measures such as help menus and warning messages in the Union Registry, and training materials, and paragraph 40 on system documentation and publication of information on the Union Registry website. |
| --- | --- |

14.

In addition, the recommendations provided in the Opinion may also serve to guide the Commission and national administrators when implementing the necessary data protection safeguards at the practical level. For more detail on practical implementation, see paragraphs 41-43 calling for the preparation of a comprehensive data protection policy, paragraph 36 on other practical measures such as help menus and warning messages in the Union Registry, and training materials, and paragraph 40 on system documentation and publication of information on the Union Registry website.

| 15. | Section 3 of this Opinion briefly outlines what personal data are required to be processed pursuant to the Regulation, focusing on sensitive data. This description is necessary in order to put into context the recommendations provided in Sections 4-12 of this Opinion. Section 4 calls for further clarifications on what personal data are processed under the Regulation, who processes such data and where the data are stored, focusing, again, on sensitive data. Sections 5-12 contain the remaining recommendations of the EDPS, while Section 13 outlines his conclusions. |
| --- | --- |

15.

Section 3 of this Opinion briefly outlines what personal data are required to be processed pursuant to the Regulation, focusing on sensitive data. This description is necessary in order to put into context the recommendations provided in Sections 4-12 of this Opinion. Section 4 calls for further clarifications on what personal data are processed under the Regulation, who processes such data and where the data are stored, focusing, again, on sensitive data. Sections 5-12 contain the remaining recommendations of the EDPS, while Section 13 outlines his conclusions.

13.   Conclusions

| 77. | The EDPS recommends that the Regulation should, when it will be amended, as foreseen, later in 2012:






  — | clarify further what personal data are to be processed under the Regulation, and what personal data are stored and processed in the Union Registry and the EUTL. The EDPS would in particular welcome a general provision in the Regulation that no special categories of personal data shall be recorded in the EUTL and the Union Registry (Section 4), |
| --- | --- | --- |

77.

The EDPS recommends that the Regulation should, when it will be amended, as foreseen, later in 2012:

—

clarify further what personal data are to be processed under the Regulation, and what personal data are stored and processed in the Union Registry and the EUTL. The EDPS would in particular welcome a general provision in the Regulation that no special categories of personal data shall be recorded in the EUTL and the Union Registry (Section 4),

| — | establish clearly whether the central administrator will be part of the European Commission, will be another EU institution/agency/body, or an entity organised under the laws of one of the Member States (Section 5), |
| --- | --- |

—

establish clearly whether the central administrator will be part of the European Commission, will be another EU institution/agency/body, or an entity organised under the laws of one of the Member States (Section 5),

| — | require the adoption of a data protection policy to allocate tasks and responsibilities (Section 6), |
| --- | --- |

—

require the adoption of a data protection policy to allocate tasks and responsibilities (Section 6),

| — | define more specifically the purposes of access to data by third parties, including Europol, and provide adequate safeguards for anonymisation in case of data mining (Section 7), |
| --- | --- |

—

define more specifically the purposes of access to data by third parties, including Europol, and provide adequate safeguards for anonymisation in case of data mining (Section 7),

| — | prohibit publication of sensitive data (Section 8), |
| --- | --- |

—

prohibit publication of sensitive data (Section 8),

| — | be amended with regard to retention periods to ensure that the data retention requirements are in accordance with EU data protection legislation (Section 9), |
| --- | --- |

—

be amended with regard to retention periods to ensure that the data retention requirements are in accordance with EU data protection legislation (Section 9),

| — | ensure that adequate notice should be provided to data subjects about the fact that they have been blacklisted and that a mechanism is available to ensure rights of access of data subjects and that the information contained in the blacklist is accurate and up-to-date; ensure adequate retention periods, limits on access and limits on the purposes for which the black-list may be used (Section 10), |
| --- | --- |

—

ensure that adequate notice should be provided to data subjects about the fact that they have been blacklisted and that a mechanism is available to ensure rights of access of data subjects and that the information contained in the blacklist is accurate and up-to-date; ensure adequate retention periods, limits on access and limits on the purposes for which the black-list may be used (Section 10),

| — | prohibit transfers of sensitive personal data outside the European Union, in particular, to the International Transaction Log (Section 11), and |
| --- | --- |

—

prohibit transfers of sensitive personal data outside the European Union, in particular, to the International Transaction Log (Section 11), and

| — | provide additional clarifications on security and accountability (audits) (Section 12). |
| --- | --- |

—

provide additional clarifications on security and accountability (audits) (Section 12).

| 78. | In addition, the EDPS recommends that his comments be taken into account by the Commission and Member States when implementing the necessary data protection safeguards at the practical level. This may include adoption of a data protection policy, provision of information on the Union Registry website, other practical measures such as help menus and warning messages in the Union Registry, and provision of training materials. |
| --- | --- |

78.

In addition, the EDPS recommends that his comments be taken into account by the Commission and Member States when implementing the necessary data protection safeguards at the practical level. This may include adoption of a data protection policy, provision of information on the Union Registry website, other practical measures such as help menus and warning messages in the Union Registry, and provision of training materials.

Done at Brussels, 11 May 2012.

Giovanni BUTTARELLI

Assistant European Data Protection Supervisor

---

(1)  OJ L 315, 29.11.2011, p. 1.

1

(2)  For further information on the ETS, see: http://ec.europa.eu/clima/publications/docs/ets_en.pdf

2

(3)  OJ L 386, 29.12.2004, p. 1 and OJ L 270, 14.10.2010, p. 1.

3

(4)  See Section 3 below for more detail on the categories of data, including sensitive data, processed under the Regulation.

4

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| 1.11.2012 | EN | Official Journal of the European Union | C 335/13 |
| --- | --- | --- | --- |

1.11.2012

EN

Official Journal of the European Union

C 335/13

---

Executive summary of the Opinion of the European Data Protection Supervisor on the Commission Recommendation on preparations for the roll-out of smart metering systems

(The full text of this Opinion can be found in English, French and German on the EDPS website: http://www.edps.europa.eu)

2012/C 335/08

1.   Introduction

1.1.   Consultation of the EDPS

| 1. | On 9 March 2012, the Commission adopted a Recommendation on preparations for the roll-out of smart metering systems (1) (‘the Recommendation’). The Recommendation was sent to the EDPS for consultation on 19 March 2012. |
| --- | --- |

1.

On 9 March 2012, the Commission adopted a Recommendation on preparations for the roll-out of smart metering systems (1) (‘the Recommendation’). The Recommendation was sent to the EDPS for consultation on 19 March 2012.

| 2. | Before the adoption of the Recommendation, the EDPS was given the opportunity to provide informal comments. Some of these comments have been taken into account in the Recommendation. As a result, the data protections safeguards in the Recommendation have been strengthened. |
| --- | --- |

2.

Before the adoption of the Recommendation, the EDPS was given the opportunity to provide informal comments. Some of these comments have been taken into account in the Recommendation. As a result, the data protections safeguards in the Recommendation have been strengthened.

| 3. | The EDPS welcomes the fact that the Commission also consulted him formally and that this Opinion is referred to in the preamble of the Recommendation. |
| --- | --- |

3.

The EDPS welcomes the fact that the Commission also consulted him formally and that this Opinion is referred to in the preamble of the Recommendation.

1.2.   Objectives and background of the Recommendation

| 4. | The objective of the Recommendation is to give guidance to Member States on preparation for the roll-out of smart metering systems (2) in Europe. The roll-out is foreseen by 2020 for both the electricity and the gas markets and is subject to an economic assessment of costs and benefits. This assessment is to be carried out by each Member State by 3 September 2012 (3). |
| --- | --- |

4.

The objective of the Recommendation is to give guidance to Member States on preparation for the roll-out of smart metering systems (2) in Europe. The roll-out is foreseen by 2020 for both the electricity and the gas markets and is subject to an economic assessment of costs and benefits. This assessment is to be carried out by each Member State by 3 September 2012 (3).

| 5. | A significant part of the Recommendation (Section I) is dedicated to data protection. Importantly, the Recommendation calls for the preparation of a template for a data protection impact assessment (4) (‘the Template’) and its submission to the Article 29 Data Protection Working Party (‘the WP29’) for advice within 12 months of the publication of the Recommendation (5). |
| --- | --- |

5.

A significant part of the Recommendation (Section I) is dedicated to data protection. Importantly, the Recommendation calls for the preparation of a template for a data protection impact assessment (4) (‘the Template’) and its submission to the Article 29 Data Protection Working Party (‘the WP29’) for advice within 12 months of the publication of the Recommendation (5).

| 6. | The first draft of the Template is currently under preparation by Expert Group 2 of the Commission's Task Force on Smart Grids. The Task Force has been established by the Commission prior to the adoption of the Recommendation, to give advice on smart grid issues. One of the subgroups of the Task Force, Expert Group 2, focuses on security and data protection aspects. The group comprises mainly industry representatives (with some representation of civil society and consumer groups) (6). |
| --- | --- |

6.

The first draft of the Template is currently under preparation by Expert Group 2 of the Commission's Task Force on Smart Grids. The Task Force has been established by the Commission prior to the adoption of the Recommendation, to give advice on smart grid issues. One of the subgroups of the Task Force, Expert Group 2, focuses on security and data protection aspects. The group comprises mainly industry representatives (with some representation of civil society and consumer groups) (6).

| 7. | The Commission pursues a ‘soft law’ approach combining (i) a Commission Recommendation covering data protection among other issues and (ii) further guidance to Member States in the form of a template for a data protection impact assessment, which is to be applied voluntarily by industry participants. The approach is based on the experience gained from the development and revision, following WP29 comments, of the ‘Industry Proposal for a Privacy and Data Protection Impact Assessment Framework for RFID Applications’ (7). However, the Commission has not excluded the need for legislative action at national and/or at the European level (8). |
| --- | --- |

7.

The Commission pursues a ‘soft law’ approach combining (i) a Commission Recommendation covering data protection among other issues and (ii) further guidance to Member States in the form of a template for a data protection impact assessment, which is to be applied voluntarily by industry participants. The approach is based on the experience gained from the development and revision, following WP29 comments, of the ‘Industry Proposal for a Privacy and Data Protection Impact Assessment Framework for RFID Applications’ (7). However, the Commission has not excluded the need for legislative action at national and/or at the European level (8).

1.3.   Objectives, main messages and structure of the EDPS Opinion

| 8. | While this EDPS Opinion is adopted in response to the Commission Recommendation, it is not strictly limited to the content of this Recommendation, as there are important data protection aspects of the roll-out of smart metering which are not fully addressed in the Recommendation itself. The EDPS also recalls in this context his formal comments on the Energy Efficiency Proposal (9). |
| --- | --- |

8.

While this EDPS Opinion is adopted in response to the Commission Recommendation, it is not strictly limited to the content of this Recommendation, as there are important data protection aspects of the roll-out of smart metering which are not fully addressed in the Recommendation itself. The EDPS also recalls in this context his formal comments on the Energy Efficiency Proposal (9).

| 9. | The EDPS Opinion has three main objectives and messages:






  — | First, the Opinion evaluates the Recommendation: it welcomes the Recommendation as a first step, highlights its achievements, but also criticises its shortcomings, including its insufficient specificity. |
| --- | --- | --- |

9.

The EDPS Opinion has three main objectives and messages:

—

First, the Opinion evaluates the Recommendation: it welcomes the Recommendation as a first step, highlights its achievements, but also criticises its shortcomings, including its insufficient specificity.

| — | Second, while the EDPS regrets that the Recommendation has not provided more specific and more practical guidance on data protection, he considers that some guidance can still be given in the data protection impact assessment Template, which is currently under preparation. Therefore, the Opinion provides a number of targeted recommendations on the Template. |
| --- | --- |

—

Second, while the EDPS regrets that the Recommendation has not provided more specific and more practical guidance on data protection, he considers that some guidance can still be given in the data protection impact assessment Template, which is currently under preparation. Therefore, the Opinion provides a number of targeted recommendations on the Template.

| — | Third, the Opinion calls on the Commission to assess whether, beyond the adoption of the Recommendation and the Template, further legislative action is necessary at the EU level and provides a number of targeted recommendations for possible legislative action. |
| --- | --- |

—

Third, the Opinion calls on the Commission to assess whether, beyond the adoption of the Recommendation and the Template, further legislative action is necessary at the EU level and provides a number of targeted recommendations for possible legislative action.

| 10. | In light of these objectives, the Opinion is structured as follows:






  — | Section 2 provides a brief introduction to the concepts of smart meters and smart grids and explains the data protection concerns they raise. |
| --- | --- | --- |

10.

In light of these objectives, the Opinion is structured as follows:

—

Section 2 provides a brief introduction to the concepts of smart meters and smart grids and explains the data protection concerns they raise.

| — | Section 3 provides general comments on the Commission’s approach followed in the Recommendation, discusses the need for further legislative action, and gives recommendations for a possible legislative action. |
| --- | --- |

—

Section 3 provides general comments on the Commission’s approach followed in the Recommendation, discusses the need for further legislative action, and gives recommendations for a possible legislative action.

| — | Section 4 outlines some of the key issues that — in the view of the EDPS — should have been addressed more specifically in the Recommendation. Some of these recommendations may also serve to guide national or European legislators when considering further regulatory or legislative action. Others may be addressed in the data protection impact assessment Template to be developed. |
| --- | --- |

—

Section 4 outlines some of the key issues that — in the view of the EDPS — should have been addressed more specifically in the Recommendation. Some of these recommendations may also serve to guide national or European legislators when considering further regulatory or legislative action. Others may be addressed in the data protection impact assessment Template to be developed.

| — | Section 5 provides a few targeted recommendations on the data protection impact assessment methodology and on the content of the Template to be developed. These should be read in conjunction with Section 4. |
| --- | --- |

—

Section 5 provides a few targeted recommendations on the data protection impact assessment methodology and on the content of the Template to be developed. These should be read in conjunction with Section 4.

6.   Conclusions

| 68. | The Europe-wide roll-out of smart metering systems may bring significant benefits, but also entails considerable risks to the protection of personal data. It enables massive collection of personal data from European households and may lead to tracking what members of a household do within the privacy of their own homes. In light of these risks, the EDPS welcomes the Commission's efforts made in the Recommendation to provide guidance to Member States on the measures that should be taken in order to ensure that smart metering and smart grid systems are designed and operated subject to adequate data protection safeguards. |
| --- | --- |

68.

The Europe-wide roll-out of smart metering systems may bring significant benefits, but also entails considerable risks to the protection of personal data. It enables massive collection of personal data from European households and may lead to tracking what members of a household do within the privacy of their own homes. In light of these risks, the EDPS welcomes the Commission's efforts made in the Recommendation to provide guidance to Member States on the measures that should be taken in order to ensure that smart metering and smart grid systems are designed and operated subject to adequate data protection safeguards.

| 69. | The EDPS appreciates the efforts of the Commission to make use of newly proposed concepts such as data protection by design and practical tools such as data protection impact assessments and security breach notifications. The EDPS, in particular, supports the Commission's plan to prepare a Template for data protection impact assessment and submit it to the WP29 for advice. |
| --- | --- |

69.

The EDPS appreciates the efforts of the Commission to make use of newly proposed concepts such as data protection by design and practical tools such as data protection impact assessments and security breach notifications. The EDPS, in particular, supports the Commission's plan to prepare a Template for data protection impact assessment and submit it to the WP29 for advice.

| 70. | The EDPS regrets that the Recommendation has not provided more specific and more practical guidance on data protection. However, he considers that some guidance can still be given in Template currently under preparation. Therefore, the Opinion provides recommendations on the Template and emphasizes that the Template must offer specific and practical guidance: a collection of best practice and ‘best available techniques’. It is also crucial for the Template to follow a sound methodology and, among others, clearly match each risk with an adequate control. |
| --- | --- |

70.

The EDPS regrets that the Recommendation has not provided more specific and more practical guidance on data protection. However, he considers that some guidance can still be given in Template currently under preparation. Therefore, the Opinion provides recommendations on the Template and emphasizes that the Template must offer specific and practical guidance: a collection of best practice and ‘best available techniques’. It is also crucial for the Template to follow a sound methodology and, among others, clearly match each risk with an adequate control.

| 71. | In addition, the Opinion calls on the Commission to assess whether further legislative action is necessary at the EU level and provides recommendations for such possible legislative action. Some of these recommendations can already be implemented via an amendment to the Energy Efficiency Directive, which is currently before the Council and Parliament. These should include at least a mandatory requirement for controllers to conduct a data protection impact assessment and an obligation to notify personal data breaches (Section 4.7). |
| --- | --- |

71.

In addition, the Opinion calls on the Commission to assess whether further legislative action is necessary at the EU level and provides recommendations for such possible legislative action. Some of these recommendations can already be implemented via an amendment to the Energy Efficiency Directive, which is currently before the Council and Parliament. These should include at least a mandatory requirement for controllers to conduct a data protection impact assessment and an obligation to notify personal data breaches (Section 4.7).

| 72. | Further, the EDPS also recommends:






  — | more guidance on the legal basis of the processing and the choice available to data subjects: in particular, a clear distinction between objectives for which energy usage data can be processed without customer consent, and those for which customer consent is required (Section 4.2), |
| --- | --- | --- |

72.

Further, the EDPS also recommends:

—

more guidance on the legal basis of the processing and the choice available to data subjects: in particular, a clear distinction between objectives for which energy usage data can be processed without customer consent, and those for which customer consent is required (Section 4.2),

| — | mandatory application of ‘PETS’ and other ‘best available techniques’ for data minimisation (Section 4.3), |
| --- | --- |

—

mandatory application of ‘PETS’ and other ‘best available techniques’ for data minimisation (Section 4.3),

| — | clarification of roles and responsibilities of the different actors from a data protection point of view (Section 4.4), |
| --- | --- |

—

clarification of roles and responsibilities of the different actors from a data protection point of view (Section 4.4),

| — | more guidance on retention periods; in principle, storage of fine-grain consumption data of individual households should be permissible only up to the end of the period during which the bill may lawfully be challenged or payment pursued and only to the level of granularity required for billing purposes (without prejudice to the consumer's right for longer retention based on consent, for example, to obtain targeted energy advice) (Section 4.5), |
| --- | --- |

—

more guidance on retention periods; in principle, storage of fine-grain consumption data of individual households should be permissible only up to the end of the period during which the bill may lawfully be challenged or payment pursued and only to the level of granularity required for billing purposes (without prejudice to the consumer's right for longer retention based on consent, for example, to obtain targeted energy advice) (Section 4.5),

| — | direct access to consumers to their energy usage data; and effective methods to inform data subjects about the processing of their data; this should include, in case of data mining, disclosure of individual profiles and the logic of any algorithms used for data mining; comprehensive information regarding the existence of any remote on/off functionality should also be provided (Section 4.6). |
| --- | --- |

—

direct access to consumers to their energy usage data; and effective methods to inform data subjects about the processing of their data; this should include, in case of data mining, disclosure of individual profiles and the logic of any algorithms used for data mining; comprehensive information regarding the existence of any remote on/off functionality should also be provided (Section 4.6).

Done at Brussels, 8 June 2012.

Giovanni BUTTARELLI

Assistant European Data Protection Supervisor

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(1)  C(2012) 1342 final.

1

(2)  For a brief introduction to smart meters and smart grids, please see Section 2.1 below.

2

(3)  The roll-out and the cost-benefit analysis are required under (i) Directive 2009/72/EC concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ L 211, 14.8.2009, p. 55), and (ii) Directive 2009/73/EC concerning common rules for the internal market in natural gas (OJ L 211, 14.8.2009, p. 94). The Commission proposal for a directive on energy efficiency (COM(2011) 370 final) (‘Energy Efficiency Proposal’), currently before the legislators, includes additional provisions on smart metering.

3

(4)  With regard to data protection impact assessments, it is to be noted that the Commission proposal for a revised general data protection framework plans to make data protection impact assessments mandatory in some situations and provide further guidance on how such an impact assessment should be carried out. See Article 33 of the Commission proposal for a regulation on the protection of individuals with regard to the processing of personal data and on the free movement of such data (COM(2012) 11 final). See also paragraphs 200-205 of the EDPS Opinion of 7 March 2012 on the data protection reform package, available at: http://www.edps.europa.eu/EDPSWEB/edps/Consultation/Reform_package;jsessionid=46ACCFDB9005EB950DF9C7D58BDE5377

4

(5)  See: paragraph 5 of the Recommendation.

5

(6)  More information on the work of the Task Force and of Expert Group 2 is available on the website of the Task Force at: http://ec.europa.eu/energy/gas_electricity/smartgrids/taskforce_en.htm

6

(7)  See: http://ec.europa.eu/information_society/policy/rfid/documents/infso-2011-00068.pdf and http://cordis.europa.eu/fp7/ict/enet/documents/rfid-pia-framework-a29wp-opinion-11-02-2011_en.pdf

7

(8)  It is noted that at the present stage no evaluation of the effectiveness of this soft law approach for the field of RFID has been provided, nor is there any generally available information indicating effectiveness of the approach.

8

(9)  EDPS Letter of 27 October 2011 to Mr Günther H. Oettinger, Commissioner for Energy on a proposal for a directive of the European Parliament and of the Council on energy efficiency and repealing Directives 2004/8/EC and 2006/32/EC, available at: http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Comments/2011/11-10-27_Letter_Oettinger_EN.pdf

9

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| 1.11.2012 | EN | Official Journal of the European Union | C 335/16 |
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1.11.2012

EN

Official Journal of the European Union

C 335/16

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Executive summary of the EDPS Opinion of 14 June 2012 on the proposals for a regulation on European venture capital funds and for a regulation on European social entrepreneurship funds

(The full text of this Opinion can be found in English, French and German on the EDPS website: http://www.edps.europa.eu)

2012/C 335/09

Introduction

Consultation of the EDPS

| 1. | On 7 December 2011, the Commission adopted a proposal for a regulation on European venture capital funds (1) (hereinafter ‘the proposed VCF regulation’). On the same date, the Commission adopted a proposal for a regulation on social entrepreneurship funds (2) (hereinafter ‘the proposed SEF regulation’). These proposals were sent to the EDPS for consultation on 12 December 2011. |
| --- | --- |

1.

On 7 December 2011, the Commission adopted a proposal for a regulation on European venture capital funds (1) (hereinafter ‘the proposed VCF regulation’). On the same date, the Commission adopted a proposal for a regulation on social entrepreneurship funds (2) (hereinafter ‘the proposed SEF regulation’). These proposals were sent to the EDPS for consultation on 12 December 2011.

| 2. | The EDPS welcomes the fact that he is consulted by the Commission and recommends that references to this Opinion are included in the preambles of the proposed regulations. |
| --- | --- |

2.

The EDPS welcomes the fact that he is consulted by the Commission and recommends that references to this Opinion are included in the preambles of the proposed regulations.

| 3. | The implementation and application of the legal framework for venture capital funds and social entrepreneurship funds may in certain cases affect the rights of individuals relating to the processing of their personal data. The proposed regulations contain provisions which may have data protection implications for the individuals concerned, such as the applicability of data protection legislation, cross border exchanges of information, investigatory powers of the competent authorities and databases of fund managers. |
| --- | --- |

3.

The implementation and application of the legal framework for venture capital funds and social entrepreneurship funds may in certain cases affect the rights of individuals relating to the processing of their personal data. The proposed regulations contain provisions which may have data protection implications for the individuals concerned, such as the applicability of data protection legislation, cross border exchanges of information, investigatory powers of the competent authorities and databases of fund managers.

| 4. | There are comparable provisions to the ones referred to in this Opinion in several pending and possible future proposals, such as those discussed in the EDPS Opinions on the legislative package on the revision of the banking legislation, credit rating agencies, markets in financial instruments (MIFID/MIFIR) and market abuse (3). Therefore, the EDPS recommends reading this Opinion in close conjunction with his Opinions of 10 February 2012 on the abovementioned initiatives. |
| --- | --- |

4.

There are comparable provisions to the ones referred to in this Opinion in several pending and possible future proposals, such as those discussed in the EDPS Opinions on the legislative package on the revision of the banking legislation, credit rating agencies, markets in financial instruments (MIFID/MIFIR) and market abuse (3). Therefore, the EDPS recommends reading this Opinion in close conjunction with his Opinions of 10 February 2012 on the abovementioned initiatives.

Objectives and scope of the proposal

| 5. | The proposed regulations aim to solve different problems with both types of funds. |
| --- | --- |

5.

The proposed regulations aim to solve different problems with both types of funds.

| 6. | Although venture capital funds focus on providing equity finance for SME's, the European venture capital industry is fragmented and dispersed. This fragmentation and dispersion leads to a statistically significant investor's reluctance to invest in venture capital funds. Regulatory fragmentation also impedes specialised venture capital funds from raising significant amount of capital from abroad. Potential investor's current preference is to prefer private equity over venture capital investments. This is negative for Europe's global competitiveness. The proposed regulation on venture capital funds aims at addressing these problems. |
| --- | --- |

6.

Although venture capital funds focus on providing equity finance for SME's, the European venture capital industry is fragmented and dispersed. This fragmentation and dispersion leads to a statistically significant investor's reluctance to invest in venture capital funds. Regulatory fragmentation also impedes specialised venture capital funds from raising significant amount of capital from abroad. Potential investor's current preference is to prefer private equity over venture capital investments. This is negative for Europe's global competitiveness. The proposed regulation on venture capital funds aims at addressing these problems.

| 7. | The range of eligible financing tools proposed in the regulation on European social entrepreneurship funds goes beyond equity finance. Social undertakings also have recourse to other forms of finance, combining public and private sector financing, debt instruments or small loans. The proposed rules on social entrepreneurship funds therefore provide for a larger range of qualifying investment tools that are available for venture capital funds. |
| --- | --- |

7.

The range of eligible financing tools proposed in the regulation on European social entrepreneurship funds goes beyond equity finance. Social undertakings also have recourse to other forms of finance, combining public and private sector financing, debt instruments or small loans. The proposed rules on social entrepreneurship funds therefore provide for a larger range of qualifying investment tools that are available for venture capital funds.

| 8. | In addition, the transparency issues raised by investments into social businesses are distinct from the general reporting obligations that are provided in the area of venture capital: investments into social entrepreneurship target a form of ‘social return’ or positive social impact. The proposed rules contain special sections that focus on information pertaining to social impacts, their measurement and the strategies employed to foster their achievement. |
| --- | --- |

8.

In addition, the transparency issues raised by investments into social businesses are distinct from the general reporting obligations that are provided in the area of venture capital: investments into social entrepreneurship target a form of ‘social return’ or positive social impact. The proposed rules contain special sections that focus on information pertaining to social impacts, their measurement and the strategies employed to foster their achievement.

| 9. | The proposed regulations on European venture capital funds and on European social entrepreneurship funds are envisaged to complement each other. Both proposals, if adopted, will coexist as autonomous legal acts in mutual independence. |
| --- | --- |

9.

The proposed regulations on European venture capital funds and on European social entrepreneurship funds are envisaged to complement each other. Both proposals, if adopted, will coexist as autonomous legal acts in mutual independence.

Main EDPS comment

| 10. | The EDPS considers that — with regard to data protection issues — the proposed regulations are too general. It is unclear in some cases whether processing of personal data will take place under certain provisions of the proposed regulations, for example regarding exchanges of information, investigatory powers of the competent authorities and establishment of ESMA databases. |
| --- | --- |

10.

The EDPS considers that — with regard to data protection issues — the proposed regulations are too general. It is unclear in some cases whether processing of personal data will take place under certain provisions of the proposed regulations, for example regarding exchanges of information, investigatory powers of the competent authorities and establishment of ESMA databases.

Conclusions

| 32. | The EDPS recommends:






  — | that references to this Opinion are included in the preambles of the proposed regulations, |
| --- | --- | --- |

32.

The EDPS recommends:

—

that references to this Opinion are included in the preambles of the proposed regulations,

| — | inserting provisions in the proposed regulations emphasising the full applicability of existing data protection legislation. The EDPS also suggests that the reference to Directive 95/46/EC be clarified by specifying that the provisions will apply in accordance with the national rules which implement Directive 95/46/EC, |
| --- | --- |

—

inserting provisions in the proposed regulations emphasising the full applicability of existing data protection legislation. The EDPS also suggests that the reference to Directive 95/46/EC be clarified by specifying that the provisions will apply in accordance with the national rules which implement Directive 95/46/EC,

| — | specifying the kind of personal information that can be processed and transferred under the proposed regulations, defining the purposes for which personal data can be processed and transferred by the competent authorities concerned and ESMA and fix a proportionate data retention period for the above processing or at least introduce precise criteria for its establishment, |
| --- | --- |

—

specifying the kind of personal information that can be processed and transferred under the proposed regulations, defining the purposes for which personal data can be processed and transferred by the competent authorities concerned and ESMA and fix a proportionate data retention period for the above processing or at least introduce precise criteria for its establishment,

| — | limiting competent authorities’ access to documents and information to specifically identified and serious violations of the proposed regulations and in cases where a reasonable suspicion (which should be supported by concrete initial evidence) exists that a breach has been committed, |
| --- | --- |

—

limiting competent authorities’ access to documents and information to specifically identified and serious violations of the proposed regulations and in cases where a reasonable suspicion (which should be supported by concrete initial evidence) exists that a breach has been committed,

| — | introducing a requirement for competent authorities to request documents and information by formal decision, specifying the legal basis and the purpose of the request and what information is required, the time limit within which the information is to be provided as well as the right of the addressee to have the decision reviewed by a court of law, |
| --- | --- |

—

introducing a requirement for competent authorities to request documents and information by formal decision, specifying the legal basis and the purpose of the request and what information is required, the time limit within which the information is to be provided as well as the right of the addressee to have the decision reviewed by a court of law,

| — | clarifying the legal basis of the fund manager databases by introducing more detailed provisions in the proposed regulations. Such provisions must comply with the requirements of Regulation (EC) No 45/2001. In particular, the provision establishing the database must (i) identify the purpose of the processing operations and establish which are the compatible uses; (ii) identify which entities (ESMA, competent authorities, Commission) will have access to which data stored in the database and will have the possibility to modify the data; (iii) ensure the right of access and appropriate information for all the data subjects whose personal data may be stored and exchanged; (iv) define and limit the retention period for the personal data to the minimum necessary for the performance of such purpose, |
| --- | --- |

—

clarifying the legal basis of the fund manager databases by introducing more detailed provisions in the proposed regulations. Such provisions must comply with the requirements of Regulation (EC) No 45/2001. In particular, the provision establishing the database must (i) identify the purpose of the processing operations and establish which are the compatible uses; (ii) identify which entities (ESMA, competent authorities, Commission) will have access to which data stored in the database and will have the possibility to modify the data; (iii) ensure the right of access and appropriate information for all the data subjects whose personal data may be stored and exchanged; (iv) define and limit the retention period for the personal data to the minimum necessary for the performance of such purpose,

| — | that, as the proposed regulations are too general in cases of cross border exchanges of information, investigatory powers of the competent authorities and the establishment of ESMA databases of fund managers, essential elements of the processing of personal data should not be left to be decided by delegated acts, but included in the relevant substantive articles of the proposed regulations, |
| --- | --- |

—

that, as the proposed regulations are too general in cases of cross border exchanges of information, investigatory powers of the competent authorities and the establishment of ESMA databases of fund managers, essential elements of the processing of personal data should not be left to be decided by delegated acts, but included in the relevant substantive articles of the proposed regulations,

| — | including references in the proposed regulations to the need to consult the EDPS in so far as the delegated and implementing acts concern the processing of personal data. |
| --- | --- |

—

including references in the proposed regulations to the need to consult the EDPS in so far as the delegated and implementing acts concern the processing of personal data.

Done at Brussels, 14 June 2012.

Giovanni BUTTARELLI

Assistant European Data Protection Supervisor

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(1)  COM(2011) 860.

1

(2)  COM(2011) 862.

2

(3)  EDPS Opinions of 10 February 2012, available at: http://www.edps.europa.eu

3

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V Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY

European Commission

| 1.11.2012 | EN | Official Journal of the European Union | C 335/18 |
| --- | --- | --- | --- |

1.11.2012

EN

Official Journal of the European Union

C 335/18

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Prior notification of a concentration

(Case COMP/M.6724 — PAI/Marcolin)

Candidate case for simplified procedure

(Text with EEA relevance)

2012/C 335/10

| 1. | On 23 October 2012, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking PAI partners S.A.S (‘PAI’, France) acquires within the meaning of Article 3(1)(b) of the Merger Regulation sole control of Marcolin SpA (‘Marcolin’, Italy). |
| --- | --- |

1.

On 23 October 2012, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking PAI partners S.A.S (‘PAI’, France) acquires within the meaning of Article 3(1)(b) of the Merger Regulation sole control of Marcolin SpA (‘Marcolin’, Italy).

| 2. | The business activities of the undertakings concerned are:






  — | PAI is a private equity firm, focused on investing in the acquisition of medium to large-sized companies, headquartered or managed in Europe, which operate in different industry sectors, |
| --- | --- | --- |

2.

The business activities of the undertakings concerned are:

—

PAI is a private equity firm, focused on investing in the acquisition of medium to large-sized companies, headquartered or managed in Europe, which operate in different industry sectors,

| — | Marcolin is active in Italy and abroad in the manufacturing and wholesale distribution of eyewear, notably eyeglass frames and sunglasses. Marcolin manufactures and distributes under its own brands, but also on behalf of fashion brands. |
| --- | --- |

—

Marcolin is active in Italy and abroad in the manufacturing and wholesale distribution of eyewear, notably eyeglass frames and sunglasses. Marcolin manufactures and distributes under its own brands, but also on behalf of fashion brands.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the EC Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the EC Merger Regulation (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the EC Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the EC Merger Regulation (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.

| 4. | The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
  Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number COMP/M.6724 — PAI/Marcolin, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Merger Registry |
| J-70 |
| 1049 Bruxelles/Brussel |
| BELGIQUE/BELGIË |

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number COMP/M.6724 — PAI/Marcolin, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

J-70

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

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(1)  OJ L 24, 29.1.2004, p. 1 (the ‘EC Merger Regulation’).

(2)  OJ C 56, 5.3.2005, p. 32 (‘Notice on a simplified procedure’).

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