# Official Journal C 70/2010

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2010.070.eng |
| --- | --- |
| Official Journal
  of the European Union | C 70 |
| | |
| English edition | Information and Notices | Volume 5319 March 2010 |

ISSN 1725-2423

doi:10.3000/17252423.C_2010.070.eng

Official Journal

of the European Union

C 70

English edition

Information and Notices

Volume 5319 March 2010

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| Notice No | Contents | page |
| --- | --- | --- |
| | I   Resolutions, recommendations and opinions |
| | RESOLUTIONS |
| | Council |
| 2010/C 070/01 | Council Resolution of 26 February 2010 on a Model Agreement for setting up a Joint Investigation Team (JIT) | 1 |
| | OPINIONS |
| | European Data Protection Supervisor |
| 2010/C 070/02 | Opinion of the European Data Protection Supervisor on the proposal for a Regulation of the European Parliament and of the Council establishing an Agency for the operational management of large-scale IT systems in the area of freedom, security and justice, and on the proposal for a Council Decision conferring upon the Agency established by Regulation XX tasks regarding the operational management of SIS II and VIS in application of Title VI of the EU Treaty | 13 |

Notice No

Contents

page

I   Resolutions, recommendations and opinions

RESOLUTIONS

Council

2010/C 070/01

Council Resolution of 26 February 2010 on a Model Agreement for setting up a Joint Investigation Team (JIT)

1

OPINIONS

European Data Protection Supervisor

2010/C 070/02

Opinion of the European Data Protection Supervisor on the proposal for a Regulation of the European Parliament and of the Council establishing an Agency for the operational management of large-scale IT systems in the area of freedom, security and justice, and on the proposal for a Council Decision conferring upon the Agency established by Regulation XX tasks regarding the operational management of SIS II and VIS in application of Title VI of the EU Treaty

13

| | II   Information |
| --- | --- |
| | INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | European Commission |
| 2010/C 070/03 | Authorisation for State aid pursuant to Articles 107 and 108 TFEU — Cases where the Commission raises no objections (
  1
  ) | 21 |
| 2010/C 070/04 | Non-opposition to a notified concentration (Case COMP/M.5732 — Hewlett-Packard/3COM) (
  1
  ) | 26 |

II   Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

2010/C 070/03

Authorisation for State aid pursuant to Articles 107 and 108 TFEU — Cases where the Commission raises no objections (
  1
  )

1

21

2010/C 070/04

Non-opposition to a notified concentration (Case COMP/M.5732 — Hewlett-Packard/3COM) (
  1
  )

1

26

| | IV   Notices |
| --- | --- |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | European Commission |
| 2010/C 070/05 | Euro exchange rates | 27 |

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

2010/C 070/05

Euro exchange rates

27

| | V   Announcements |
| --- | --- |
| | PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMMON COMMERCIAL POLICY |
| | European Commission |
| 2010/C 070/06 | Notice of the impending expiry of certain anti-dumping measures | 28 |
| 2010/C 070/07 | Notice of the impending expiry of certain anti-dumping measures | 29 |
| | PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY |
| | European Commission |
| 2010/C 070/08 | Prior notification of a concentration (Case COMP/M.5835 — Cucina/Brakes/Menigo) — Candidate case for simplified procedure (
  1
  ) | 30 |
| | OTHER ACTS |
| | European Commission |
| 2010/C 070/09 | Publication of an amendment application pursuant to Article 6(2) of Council Regulation (EC) No 510/2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs | 31 |

V   Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMMON COMMERCIAL POLICY

European Commission

2010/C 070/06

Notice of the impending expiry of certain anti-dumping measures

28

2010/C 070/07

Notice of the impending expiry of certain anti-dumping measures

29

PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY

European Commission

2010/C 070/08

Prior notification of a concentration (Case COMP/M.5835 — Cucina/Brakes/Menigo) — Candidate case for simplified procedure (
  1
  )

1

30

OTHER ACTS

European Commission

2010/C 070/09

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

31

| | Corrigenda |
| --- | --- |
| 2010/C 070/10 | Corrigendum to State aid — Latvian Republic — State aid C 39/09 (ex N 385/09) — Public financing of port infrastructure in Ventspils port — Invitation to submit comments pursuant to Article 108(2) of the TFEU (OJ C 62, 13.3.2010) | 39 |

Corrigenda

2010/C 070/10

Corrigendum to State aid — Latvian Republic — State aid C 39/09 (ex N 385/09) — Public financing of port infrastructure in Ventspils port — Invitation to submit comments pursuant to Article 108(2) of the TFEU (OJ C 62, 13.3.2010)

(OJ C 62, 13.3.2010)

39

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

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(1)   Text with EEA relevance

1

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

EN

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I Resolutions, recommendations and opinions

RESOLUTIONS

Council

| 19.3.2010 | EN | Official Journal of the European Union | C 70/1 |
| --- | --- | --- | --- |

19.3.2010

EN

Official Journal of the European Union

C 70/1

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COUNCIL RESOLUTION

of 26 February 2010

on a Model Agreement for setting up a Joint Investigation Team (JIT)

2010/C 70/01

THE COUNCIL OF THE EUROPEAN UNION,

HAVING REGARD to Article 13 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 (1) (hereinafter referred to as ‘the Convention’) and to the Council Framework Decision of 13 June 2002 (2) on joint investigation teams (hereinafter referred to as the ‘Framework Decision’),

HAVING REGARD to the Council Recommendation on a model agreement for setting up a joint investigation team (3), approved in 2003 to support experts in the initial implementation of JITs,

BEARING IN MIND that at that time it was not possible to base the model agreement on best practice derived from actual experience because of the limited number of JITs then in operation, although it did provide the basis for later JIT agreements,

AWARE that a significant number of JITs have been set up since 2003 and that there is now much greater readiness to set them up than there was a few years ago,

BEARING IN MIND that such a model agreement should be comprehensive but also flexible so as to ensure that the competent authorities may adapt it to the particular circumstances of each case,

CONVINCED that the practitioners need an updated model based on best practices where establishing JITs,

BEARING IN MIND the conclusions of the network of JIT experts set up in 2005 (4), particularly the conclusions reached at its third, fourth and fifth meetings held in November 2007 (5), December 2008 (6) and December 2009 (7), and Eurojust and Europol best practice and experience,

BEARING IN MIND that since practice in the establishment and operation of JITs developed and with due regard for the problems and difficulties encountered to date, it was found necessary to replace the Model agreement under Council Recommendation of 2003 with an updated one,

TAKING INTO ACCOUNT that this need is also recognised in the Stockholm Programme, point 4.3.1 of which states that the model agreement for setting up joint investigation teams should be updated,

TAKING INTO ACCOUNT that the main objective of a JIT is to obtain information and evidence about the crime for the investigation of which it has been established,

ENCOURAGES the competent authorities of the Member States that wish to set up a Joint Investigation Team in accordance with the terms of the Framework Decision and the Convention with competent authorities from other Member States, to use, where appropriate, the model agreement set out in the Annex to this Resolution in order to agree upon the modalities for the joint investigation team.

Done at Brussels, 26 February 2010.

For the Council

The President

F. CAAMAÑO

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(1)  OJ C 197, 12.7.2000, p. 3.

1

(2)  OJ L 162, 20.6.2002, p. 1.

2

(3)  OJ C 121, 23.5.2003, p. 1.

3

(4)  doc. 11037/05 Crimorg 67 Enfopol 88.

4

(5)  doc. 5526/08 Crimorg 14 Enfopol 13 Eurojust 7 Copen 10.

5

(6)  doc. 17512/08 Crimorg 217 Enfopol 265 Eurojust 118 Copen 262.

6

(7)  doc. 17161/09 Crimorg 180 Eurojust 73 Enfopol 310 EJN 39 Copen 243 Enfocustom 137.

7

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ANNEX

MODEL AGREEMENT ON THE ESTABLISHMENT OF A JOINT INVESTIGATION TEAM

In accordance with Article 13 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000
   (1)
  (hereinafter referred to as the Convention) and the Council Framework Decision of 13 June 2002 on joint investigation teams
   (2)
  (hereinafter referred to as the Framework Decision)

1.   Parties to the Agreement

The following parties have concluded an agreement on the setting up of a joint investigation team, hereinafter referred to as ‘JIT’:

| 1. | (Name of the first competent agency/administration of a Member State as a Party to the agreement) |
| --- | --- |

1.

(Name of the first competent agency/administration of a Member State as a Party to the agreement)

and

| 2. | (Name of the second competent agency/administration of a Member State as a party to the agreement) |
| --- | --- |

2.

(Name of the second competent agency/administration of a Member State as a party to the agreement)

| 3. | (Name of the last competent agency/administration of a Member State party to the agreement) |
| --- | --- |

3.

(Name of the last competent agency/administration of a Member State party to the agreement)

The parties to the agreement may decide by common agreement to invite other Member States’ agencies/administrations to become parties to this agreement. For possible arrangements with third countries, bodies competent by virtue of provisions adopted within the framework of the Treaties and international bodies involved in the activities of the JIT, see Appendix I.

2.   Purpose of the JIT

The agreement shall cover the setting up of a JIT for the following purpose:

Description of the specific purpose of the JIT. This should include the circumstances of the crime(s) being investigated (date, place and nature).

The parties may redefine the specific purpose of the JIT by common agreement.

3.   Approach

The parties to the agreement may agree on an operational action plan (OAP) setting out the orientations according to which the purpose of the JIT is to be achieved (3).

4.   Period covered by the agreement

In accordance with Article 13(1) of the Convention and Article 1(1) of the Framework Decision, JITs shall be set up for a limited period of time. With respect to this agreement, this JIT may operate during the following period:

from

[insert date]

to

[insert date]

The expiry date stated in this agreement may be extended by mutual consent of the parties in the form provided for in Appendix II to this model agreement.

5.   Member State(s) in which the JIT will operate

The JIT will operate in the Member State(s) designated hereafter:

[Designate Member State or States in which the JIT is intended to operate]

In accordance with Article 13(3)(b) of the Convention and Article 1(3)(b) of the Framework Decision, the team shall carry out its operations in accordance with the law of the Member State in which it operates at any particular time. Should the JIT move its operational basis to another Member State, the law of this Member State shall then apply.

6.   JIT Leader(s)
   (4)

The parties have designated the following person, who shall be a representative of the competent authorities in the Member State(s) where the team is operating, as the leader of the JIT and under whose leadership the members of the JIT must carry out their tasks in the Member State to which he belongs:

| Member State | On secondment from (name of body) | Name | Rank and affiliation (judicial, police or other competent authority) |
| --- | --- | --- | --- |
| — | — | — | — |
| — | — | — | — |

Member State

On secondment from (name of body)

Name

Rank and affiliation (judicial, police or other competent authority)

—

—

—

—

—

—

—

—

Should any of the abovementioned persons be prevented from carrying out their duties, a replacement will be designated without delay by mutual consent of the parties in an appendix to the agreement. In urgent cases, it will be sufficient for the parties to the JIT to give notification of the replacement by letter. Such notification shall subsequently be confirmed in an appendix to the agreement.

7.   Members of the JIT

In addition to the persons referred to in Article 6, the following persons (5) shall be members of the JIT:

| Member State | On secondment from (name of body) | Name/identification number (6) | Rank and affiliation (judicial, police or other competent authority) | Role |
| --- | --- | --- | --- | --- |
| — | — | — | — | — |
| — | — | — | — | — |

Member State

On secondment from (name of body)

Name/identification number (6)

Rank and affiliation (judicial, police or other competent authority)

Role

—

—

—

—

—

—

—

—

—

—

Should any of the above-mentioned persons be prevented from carrying out their duties, a replacement will be designated without delay in an appendix to this agreement or by a written notification sent by the competent leader of the JIT.

8.   Participants in the JIT

The provisions on participants (7) in the JIT are dealt with in the relevant appendix to this agreement.

9.   Evidence

The parties entrust the leader or a member (s) of the JIT with the task of giving advice on the obtaining of evidence. His or her role includes providing guidance to members of the JIT on aspects and procedures to be taken into account in the taking of evidence. The person(s) who carry out this function should be indicated here.

In the OAP the parties may inform each other about giving testimony by members of the JIT.

10.   General Conditions of the Agreement

In general, the conditions laid down in Article 13 of the Convention and the Framework Decision shall apply as implemented by each Member State in which the JIT operates.

11.   Amendments to the agreement

Amendments to this agreement, including but not limited to the following:

| (a) | the incorporation of new members of the JIT; |
| --- | --- |

(a)

the incorporation of new members of the JIT;

| (b) | changes to the purpose provided for in Article 2 of this agreement; |
| --- | --- |

(b)

changes to the purpose provided for in Article 2 of this agreement;

| (c) | additions or changes to the current articles. |
| --- | --- |

(c)

additions or changes to the current articles.

shall take the form provided for in Appendix III to this model agreement, shall be signed by the parties and shall be attached to the original version.

12.   Internal evaluation

Every six months at least, the JIT leaders shall evaluate the progress achieved as regards the general purpose of the JIT, while determining and addressing any problems thus identified.

After the operation of the JIT ends, the parties may, where appropriate, arrange a meeting to evaluate the performance of the JIT.

The JIT may draw up a report on the operation, which may show how the operational action plan was implemented and which results were achieved.

13.   Specific arrangements of the agreement (in order to avoid making the agreement too cumbersome some or all points indicated under 13.1-13.11 may be located in OAP).

The following special arrangements may apply to this agreement (note that a number of these aspects are also regulated in the Convention and the Framework Decision):

(To be inserted, if applicable. The following sub-chapters are intended to highlight possible areas that need to be specifically described).

| 13.1. | Terms under which seconded members of the JIT may be excluded when investigative measures are taken. |
| --- | --- |

13.1.

Terms under which seconded members of the JIT may be excluded when investigative measures are taken.

| 13.2. | Specific conditions under which seconded members may carry out investigations within the MS of operation. |
| --- | --- |

13.2.

Specific conditions under which seconded members may carry out investigations within the MS of operation.

| 13.3. | Specific conditions under which a seconded member of a JIT may request his/her own national authorities to take measures which are requested by the team without submitting a letter of request. |
| --- | --- |

13.3.

Specific conditions under which a seconded member of a JIT may request his/her own national authorities to take measures which are requested by the team without submitting a letter of request.

| 13.4. | Conditions under which seconded members may share information derived from seconding authorities. |
| --- | --- |

13.4.

Conditions under which seconded members may share information derived from seconding authorities.

| 13.5. | Provisions concerning the media, in particular the need for consultation prior to the presentation of press releases and official information briefings. |
| --- | --- |

13.5.

Provisions concerning the media, in particular the need for consultation prior to the presentation of press releases and official information briefings.

| 13.6. | Provisions concerning the confidentiality of this agreement. |
| --- | --- |

13.6.

Provisions concerning the confidentiality of this agreement.

| 13.7. | The language to be used for communication must be defined. |
| --- | --- |

13.7.

The language to be used for communication must be defined.

| 13.8. | Specific provisions on expenditure:






  13.8.1. | Provisions on insurance for seconded members of the JIT; |
| --- | --- | --- |

13.8.

Specific provisions on expenditure:

13.8.1.

Provisions on insurance for seconded members of the JIT;

| 13.8.2. | Provisions concerning expenditure on translation/interpreting/telephone tapping, etc. |
| --- | --- |

13.8.2.

Provisions concerning expenditure on translation/interpreting/telephone tapping, etc.

| 13.8.3. | Provisions on the translation of, for example, the documents obtained into the language of other members of the JIT, as well as into the official language of communication (if different), since this can entail considerable (unnecessary) expenditure; |
| --- | --- |

13.8.3.

Provisions on the translation of, for example, the documents obtained into the language of other members of the JIT, as well as into the official language of communication (if different), since this can entail considerable (unnecessary) expenditure;

| 13.8.4. | Provisions concerning expenses or income arising from seized assets. |
| --- | --- |

13.8.4.

Provisions concerning expenses or income arising from seized assets.

| 13.9. | Conditions under which assistance sought under the Convention and other arrangements may be given. |
| --- | --- |

13.9.

Conditions under which assistance sought under the Convention and other arrangements may be given.

| 13.10. | Specific data protection rules.






  13.10.bis | Confidentiality and use of information already existing and/or obtained during the operation of the JIT. |
| --- | --- | --- |

13.10.

Specific data protection rules.

13.10.bis

Confidentiality and use of information already existing and/or obtained during the operation of the JIT.

| 13.11. | Conditions under which seconded members may carry/use weapons. |
| --- | --- |

13.11.

Conditions under which seconded members may carry/use weapons.

Done at (place of signature), (date)

(Signatures of all parties)

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(1)  OJ C 197, 12.7.2000, p. 3.

1

(2)  OJ L 162, 20.6.2002, p. 1.

2

(3)  In the light of the relevant national legislation and its disclosure requirements, the OAP could be included in the JIT agreement, or as an appendix to the agreement or treated as a separate confidential document. In all cases the competent authorities which sign the agreement shall be aware of the content of the OAP. The OAP must be a flexible document containing practical agreements on a common strategy and on how to achieve the purpose of the JIT set out in Article 2, including the practical arrangements not otherwise covered by this agreement.

3

A check list regarding the points related to the possible content of the OAP is set out in Appendix IV to this model agreement.

(4)  Article 1(3)(a) of the Framework Decision shall apply, i.e. the leader of the team shall be a representative of the competent authority participating in criminal investigations from the Member State in which the team operates.

4

(5)  The JIT may include representatives of judicial, police or other competent authorities with investigative functions.

5

Under this heading, it may also include members of Eurojust when they operate as competent national authorities as referred to in Article 9f of the Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime. These are the national members of Eurojust, their deputies and assistants — as well as other persons who, in line with their national legislation, are also members of the national office, i.e. seconded national experts.

The police authorities may comprise members of the Europol national units of the Member States. These national units are based in the Member States and are national police authorities. Also the liaison officers of the Member States at Europol retain their capacity to act as national police authorities.

(6)  If there are good grounds for protecting the identity of one or more members of the JIT, such as, in cases of covert investigations or in cases of terrorism that require maximum security, identification numbers must be assigned to those persons, as far as it is compatible with the national legislation of the Member State, party to the agreement. The numbers assigned must be included in a confidential document. Should it not be possible to assign an identification number, it may be agreed that the identity of the members is set out in a confidential document, which is attached to this agreement and which is made available to all parties thereto.

6

(7)  Participants in the JIT are designated by third countries, Eurojust, Europol, the Commission (OLAF), bodies competent by virtue of provisions adopted within the framework of the Treaties and international organisations which participate in the activities of the JIT, as parties to the agreement provided for in Appendix I to this model Agreement.

7

Appendix I

TO THE MODEL AGREEMENT ON THE ESTABLISHMENT OF A JOINT INVESTIGATION TEAM

Participants in a JIT

Arrangement with Europol/Eurojust/the Commission (OLAF), bodies competent by virtue of provisions adopted within the framework of the Treaties, other international bodies or third countries

1.   Parties to the arrangement

and

and

(... and ...)

have agreed that the following persons from (names of the parties to the agreement that are not Member States) will participate in the joint investigation team, established by agreement on ... (date and place of the agreement to which this appendix is attached).

2.   Participants in the JIT

The following persons will participate in the JIT:

| State/Organisation | On secondment from (name of agency/body) | Name | Rank and affiliation | Role |
| --- | --- | --- | --- | --- |
| — | — | — | — | — |
| — | — | — | — | — |

State/Organisation

On secondment from (name of agency/body)

Name

Rank and affiliation

Role

—

—

—

—

—

—

—

—

—

—

The Member State ... has decided that its national members of Eurojust will participate in the joint investigation team as a competent national authority (1).

Should any of the above-mentioned persons be prevented from carrying out their duties, a replacement will be designated in an appendix to this agreement. In urgent cases, it will be sufficient for the party to give notification of the replacement by letter. Such notification shall subsequently be confirmed in an appendix to the agreement.

3.   Specific arrangements

The participation of the above-mentioned persons will be subject to the following conditions and only for the following purposes:

3.1.   First party to the agreement that is not a Member State

3.1.1.   Purpose of participation

3.1.2.   Rights conferred (if any)

3.1.3.   Provisions concerning costs

3.1.4.   Specific provisions concerning or enabling achievement of the purpose of participation

3.1.5.   Other specific provisions or conditions (2)

3.1.6.   Specific data protection rules

3.2.   Second party to the agreement that is not a Member State (if applicable)

3.2.1.   ...

4.   Specific arrangements related to the participation of Europol
   (3)

4.1.   Principles of participation

4.1.1.   Europol staff participating in the JIT shall assist the members of the team in accordance with the Europol Decision and in accordance with the national law of the Member State where the team operates.

4.1.2.   The Europol staff participating in the JIT shall work under the guidance of the leader(s) of the team as identified in point [...] of the Agreement and shall provide any assistance necessary to achieve the objectives and purpose of the JIT, as identified by the leader(s) of the team.

4.1.3.   Europol staff has the right not to perform tasks which they consider to be in breach of their obligations under the Europol Decision. In that case, the Europol staff member shall inform the Director or his representative thereof. Europol shall consult with the leader(s) of the team with a view to finding a mutually satisfactory solution.

4.1.4.   Europol staff participating in the JIT shall not be involved in the taking of any coercive measures. However, participating Europol staff can, under the guidance of the leader(s) of the team, be present during operational activities of the JIT, in order to render on-the-spot advice and assistance to the members of the team who execute coercive measures, provided that no legal constraints exist at national level where the team operates.

4.1.5.   Article 11(a) of the Protocol on the Privileges and Immunities of the European Union shall not apply to Europol staff participating in the JIT (4).

4.1.6.   During the operations of the JIT, Europol staff shall, with respect to offences committed against or by them, be subject to the national law of the Member State of operation applicable to persons with comparable functions.

4.2.   Type of assistance

4.2.1.   Participating Europol staff will provide full range of Europol’s support services, in accordance with the Europol Council Decision as far as required or requested. Those will include, inter alia, operational and strategic analytical support, in particular through the analysis work file(s) (AWF) (name(s) of the work file(s) and related projects). Where required and when requested by the leader(s) of the team, Europol may support the JIT by deployment of a Europol ‘mobile office’ or of other technical equipment, if available and in compliance with Europol’s security standards.

4.2.2.   Europol staff participating in the JIT may assist in all activities, in particular by providing a communication platform, strategic, technical and forensic support and tactical and operational expertise and advice to the members of the JIT, as required by the leader(s) of the team.

4.2.3.   Europol shall, within the boundaries of its legal framework facilitate the secure exchange of information between the parties of the JIT and non-participating States and/or EU bodies and international organisations, if requested by the leader(s) of the team.

4.3.   Access to Europol information processing systems

4.3.1.   Europol staff participating in the JIT shall have access to Europol’s information processing systems, referred to in Article 10 of the Europol Decision. This access shall be in accordance with the provisions of the Europol Decision and in line with the applicable security and data protection standards for the duration of their membership of the JIT.

4.3.2.   Europol staff may liaise directly with members of the JIT and provide members and seconded members of the JIT, in accordance with the Europol Decision, with information from any of the components of the information processing systems referred to in Article 10 of the Europol Decision. The conditions and restrictions on the use of this information must be respected.

4.3.3.   Information obtained by a Europol staff member while part of the JIT may be, with the consent and under the responsibility of the Member State which provided the information, included in any of the components of the information processing systems referred to in Article 10 of the Europol Decision, under the conditions laid down therein.

4.4.   Costs and equipment

4.4.1.   The Member State in which investigative measures are taking place is responsible for providing the technical equipment (office accommodation, telecommunication etc.) necessary for the accomplishment of the tasks and shall pay the costs incurred. The respective Member State shall also provide office communication and other technical equipment necessary for the (encrypted) exchange of data. The costs are to be paid by that Member State.

4.4.2.   Europol shall cover the costs incurred as a result of the participation of Europol staff in the JIT, in particular concerning insurance and salaries for staff as well as accommodation and travel costs. Europol shall also bear the costs for the special equipment mentioned in points 4.1 and 4.2 above.

Date/signatures (5)

---

(1)  Delete this paragraph if not applicable.

(2)  For example, references to basic or applicable legal frameworks, etc.

(3)  To be included only where Europol is a participant to the JIT. These rules were adopted by the Europol Management Board on 9 July 2009 (file No 3710-426r6) and a model JIT arrangement was adopted by the Europol Management Board on 18 November 2009 (file No 2610-74r2), as required under Article 6(2) of the Europol Decision. For updated information please refer to the Europol's website: http://www.europol.europa.eu

(4)  Protocol on the Privileges and Immunities of the European Union (consolidated version) (OJ C 115, 9.5.2008, p. 266).

(5)  Signatures of the parties to this arrangement.

Appendix II

TO THE MODEL AGREEMENT ON THE ESTABLISHMENT OF A JOINT INVESTIGATION TEAM

Agreement to extend a joint investigation team

In accordance with Article 13(1) of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 (1) and Article 1(1) of the Council Framework Decision of 13 June 2002 on joint investigation teams (2):

The parties have agreed to extend the joint investigation team (hereinafter ‘JIT’) set up by agreement of [insert date] done at [insert place of signature], a copy of which is attached hereto.

The parties consider that the JIT should be extended beyond the period for which it was set up [insert date on which period ends] since its purpose as established in Article [insert article on purpose of JIT here] has not yet been achieved.

The circumstances requiring the JIT to be extended have been carefully examined by all the parties. The extension of the JIT is considered essential to the achievement of the purpose for which the JIT was set up.

The JIT will therefore remain in operation until [insert date on which new period ends]. The above period may be extended further by the parties by mutual agreement.

Date/Signature

---

(1)  OJ C 197, 12.7.2000, p. 3.

(2)  OJ L 162, 20.6.2002, p. 1.

Appendix III

TO THE MODEL AGREEMENT ON THE ESTABLISHMENT OF A JOINT INVESTIGATION TEAM

Suggested wording for changes other than the period for which a JIT is set up

In accordance with Article 13(1) of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 (1) and Article 1(1) of the Council Framework Decision of 13 June 2002 on joint investigation teams (2), under which the present joint investigation team was set up:

The parties have agreed to amend the written agreement setting up a joint investigation team (hereinafter ‘JIT’) of [insert date], done at [insert place], a copy of which is attached hereto.

The signatories have agreed that the above agreement should be amended as follows:

| 1. | (Amendment ...) |
| --- | --- |

1.

(Amendment ...)

| 2. | (Amendment ...) |
| --- | --- |

2.

(Amendment ...)

The circumstances requiring the JIT agreement to be amended have been carefully examined by all the parties. The amendment(s) to the JIT agreement is/are deemed essential to achieve the purpose for which the JIT was set up.

Date/Signature

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(1)  OJ C 197, 12.7.2000, p. 3.

(2)  OJ L 162, 20.6.2002, p. 1.

Appendix IV

Proposal for a check list for the Operational Action Plan (OAP) (1)

The following points may be addressed by the parties:

Introduction— describe the purpose of the JIT. The text used under ‘purpose of the JIT’ in the JIT agreement would normally be sufficient

Operational procedure— identify the location(s) where the JIT is likely to operate, describe how the JIT will be managed and the investigation conducted, taking note of national legislation, guidelines and procedure

Role of members and/or participants of the JIT— identify and describe the different operational roles and tasks of each member and/or participant in the JIT (EU MS, Europol, Eurojust, OLAF) if not yet described in the JIT agreement

Special or specific measures to be implemented— identify and describe investigative activity that requires special measures or procedure e.g. child suspects, victims, dangerous/hostile working environment

Operations and investigative powers— identify and describe special operations/investigative techniques that will be employed during the investigation e.g. intrusive surveillance, informants, undercover officers, communication intercepts etc. and related legislation/procedure

Information exchange and communication— describe how information will be exchanged and the procedures for communication and identify competent partner or agency e.g. Europol, Eurojust, OLAF, SECI, Interpol; it may be necessary to agree upon a language of communication; consider the use of Europol’s secure means of communication (SIENA) and the Analytical Work Files (AWFs) as a means for a secure environment to store sensitive information

Intelligence assessment and tasking— describe the process of intelligence collection and development and any related guidelines

Financial investigations— consider the need for following the ‘money trail’

Evidence gathering— identify according to the jurisdiction(s) any legislation, guidelines, procedure etc. which must be taken into account including responsible agency/individual, requirement to translate evidence

Prosecution— identify the competent authority in each country/jurisdiction and any guidelines related to decisions to prosecute including the role of Eurojust in this respect

Testimony— identify the likelihood and procedures in place for each jurisdiction in respect of the requirement for JIT members to give evidence

Disclosure— describe the rules and procedures for all jurisdictions where the JIT is likely to operate

Operational and strategic meetings— identify and describe the meetings that will take place, their frequency and participants

Administration and logistics— any issues concerning administration, equipment (such as office accommodation, vehicles, IT equipment or any other technical equipment), resources, personnel, media, confidentiality issues, etc. should be dealt with here:

Translation

Office accommodation

Vehicles

Other technical equipment

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(1)  The content of the OAP is a living document reflecting the practical issues of a JIT. The OAP should be coherent with section 13 ‘Specific arrangements’ of the JIT Agreement. Some elements of section 13 may be located in the OAP.

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OPINIONS

European Data Protection Supervisor

| 19.3.2010 | EN | Official Journal of the European Union | C 70/13 |
| --- | --- | --- | --- |

19.3.2010

EN

Official Journal of the European Union

C 70/13

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Opinion of the European Data Protection Supervisor on the proposal for a Regulation of the European Parliament and of the Council establishing an Agency for the operational management of large-scale IT systems in the area of freedom, security and justice, and on the proposal for a Council Decision conferring upon the Agency established by Regulation XX tasks regarding the operational management of SIS II and VIS in application of Title VI of the EU Treaty

2010/C 70/02

THE EUROPEAN DATA PROTECTION SUPERVISOR,

Having regard to the Treaty on the Functioning of the European Union, and in particular its Article 16,

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

Having regard to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1),

Having regard to the request for an opinion in accordance with Article 28(2) of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (2), sent to the EDPS on 11 August 2009,

HAS ADOPTED THE FOLLOWING OPINION:

I.   INTRODUCTION — CONTEXT OF THE OPINION

Description of the proposals

| 1. | On 24 June 2009, the Commission adopted a legal package establishing an Agency for the operational management of large-scale IT systems in the area of freedom, security and justice. The package consists of a proposal for a Regulation of the European Parliament and of the Council establishing the Agency and a proposal for a Council Decision conferring upon the Agency tasks regarding the operational management of SIS II and VIS in application of Title VI of the EU Treaty (3). The two proposals are further explained in a communication adopted on the same date (4). On 11 August 2009, the proposals and the communication were sent to the EDPS for consultation together with the Impact Assessment and the summary of the Impact Assessment (5). |
| --- | --- |

1.

On 24 June 2009, the Commission adopted a legal package establishing an Agency for the operational management of large-scale IT systems in the area of freedom, security and justice. The package consists of a proposal for a Regulation of the European Parliament and of the Council establishing the Agency and a proposal for a Council Decision conferring upon the Agency tasks regarding the operational management of SIS II and VIS in application of Title VI of the EU Treaty (3). The two proposals are further explained in a communication adopted on the same date (4). On 11 August 2009, the proposals and the communication were sent to the EDPS for consultation together with the Impact Assessment and the summary of the Impact Assessment (5).

| 2. | The proposed Regulation finds its legal basis in Title IV of the EC Treaty. Since the use of SIS II and VIS for the purpose of police and judicial cooperation in criminal matters is currently based on Title VI of the EU Treaty, the proposed Regulation is complemented by a proposal for a Council Decision which is based on Title VI of the EU Treaty. |
| --- | --- |

2.

The proposed Regulation finds its legal basis in Title IV of the EC Treaty. Since the use of SIS II and VIS for the purpose of police and judicial cooperation in criminal matters is currently based on Title VI of the EU Treaty, the proposed Regulation is complemented by a proposal for a Council Decision which is based on Title VI of the EU Treaty.

| 3. | The respective legal instruments establishing SIS II, VIS and Eurodac determine that the Commission is to be responsible for the operational management of these three systems (6). In case of SIS II and VIS, this is only intended for a transitional period, after which a Management Authority is to be responsible for the operational management. In a Joint Statement of 7 June 2007, the European Parliament and the Council invited the Commission to present, following an impact assessment in which alternatives are analysed, the necessary legislative proposals entrusting an agency with the long-term operational management of SIS II and VIS (7). This invitation has led to the current proposals. |
| --- | --- |

3.

The respective legal instruments establishing SIS II, VIS and Eurodac determine that the Commission is to be responsible for the operational management of these three systems (6). In case of SIS II and VIS, this is only intended for a transitional period, after which a Management Authority is to be responsible for the operational management. In a Joint Statement of 7 June 2007, the European Parliament and the Council invited the Commission to present, following an impact assessment in which alternatives are analysed, the necessary legislative proposals entrusting an agency with the long-term operational management of SIS II and VIS (7). This invitation has led to the current proposals.

| 4. | The Agency established by the proposed Regulation will indeed be responsible for the operational management of SIS II and VIS, but also for Eurodac and possible other large-scale IT systems. The reference to ‘other large-scale IT systems’ will be discussed in points 28-31 of this Opinion. According to the preamble of the proposed Regulation, the reasons for putting the three large-scale IT systems, and possible other systems, under the direction of one Agency are to achieve synergies, to benefit from economies of scale, to create critical mass and to ensure the highest possible utilisation rate of capital and human resources (8). |
| --- | --- |

4.

The Agency established by the proposed Regulation will indeed be responsible for the operational management of SIS II and VIS, but also for Eurodac and possible other large-scale IT systems. The reference to ‘other large-scale IT systems’ will be discussed in points 28-31 of this Opinion. According to the preamble of the proposed Regulation, the reasons for putting the three large-scale IT systems, and possible other systems, under the direction of one Agency are to achieve synergies, to benefit from economies of scale, to create critical mass and to ensure the highest possible utilisation rate of capital and human resources (8).

| 5. | The proposed Regulation establishes a regulatory agency which has legal, administrative and financial autonomy and has legal personality. The Agency will perform the tasks which are conferred on the Management Authority (or the Commission) as described in the legal instruments establishing SIS II, VIS and Eurodac. The Agency shall furthermore monitor research and, upon specific request of the Commission, implement pilot schemes for the development and/or operational management of large-scale IT systems, in application of Title IV of the EC Treaty and possibly the broader area of freedom, security and justice as well (see points 28-31 below). |
| --- | --- |

5.

The proposed Regulation establishes a regulatory agency which has legal, administrative and financial autonomy and has legal personality. The Agency will perform the tasks which are conferred on the Management Authority (or the Commission) as described in the legal instruments establishing SIS II, VIS and Eurodac. The Agency shall furthermore monitor research and, upon specific request of the Commission, implement pilot schemes for the development and/or operational management of large-scale IT systems, in application of Title IV of the EC Treaty and possibly the broader area of freedom, security and justice as well (see points 28-31 below).

| 6. | The Agency's administrative and management structure will comprise a Management Board, composed of one representative of each Member State and two representatives of the Commission, an Executive Director, appointed by the Management Board and Advisory Groups, which provide the Management Board with the expertise related to the respective IT systems. At the moment, the proposal foresees three Advisory Groups for SIS II, VIS and Eurodac. |
| --- | --- |

6.

The Agency's administrative and management structure will comprise a Management Board, composed of one representative of each Member State and two representatives of the Commission, an Executive Director, appointed by the Management Board and Advisory Groups, which provide the Management Board with the expertise related to the respective IT systems. At the moment, the proposal foresees three Advisory Groups for SIS II, VIS and Eurodac.

| 7. | The proposed Council Decision confers upon the Agency the tasks entrusted to the Management Authority as laid down in Council Decision 2007/533/JHA on SIS II and Council Decision 2008/633/JHA on VIS (9). The proposed Decision furthermore grants Europol observer status at the meetings of the Management Board of the Agency when a question relating to SIS II or VIS is on the agenda. Europol may also appoint a representative to the SIS II and VIS Advisory Groups (10). Eurojust equally has observer status and may appoint a representative, but only in relation to SIS II. |
| --- | --- |

7.

The proposed Council Decision confers upon the Agency the tasks entrusted to the Management Authority as laid down in Council Decision 2007/533/JHA on SIS II and Council Decision 2008/633/JHA on VIS (9). The proposed Decision furthermore grants Europol observer status at the meetings of the Management Board of the Agency when a question relating to SIS II or VIS is on the agenda. Europol may also appoint a representative to the SIS II and VIS Advisory Groups (10). Eurojust equally has observer status and may appoint a representative, but only in relation to SIS II.

EDPS consultation

| 8. | The EDPS welcomes that he is consulted on this matter and recommends that reference to this consultation is made in the recitals of the proposals, as is usually done in legislative texts on which the EDPS has been consulted in accordance with Regulation (EC) No 45/2001. |
| --- | --- |

8.

The EDPS welcomes that he is consulted on this matter and recommends that reference to this consultation is made in the recitals of the proposals, as is usually done in legislative texts on which the EDPS has been consulted in accordance with Regulation (EC) No 45/2001.

| 9. | Prior to the adoption of the proposal the EDPS has been informally consulted. The EDPS welcomed this informal consultation and is pleased to see that most of his remarks have been taken into account in the final proposal. |
| --- | --- |

9.

Prior to the adoption of the proposal the EDPS has been informally consulted. The EDPS welcomed this informal consultation and is pleased to see that most of his remarks have been taken into account in the final proposal.

| 10. | Obviously, the EDPS is closely following the developments regarding the creation of the Agency which is supposed to become responsible for the proper operation and security of databases, such as SIS II, VIS and Eurodac, which contain large amounts of personal data. As will be further explained in this Opinion, the EDPS is not opposed to the creation of such an Agency, as long as certain possible risks, which could have great impact on the privacy of individuals, are sufficiently addressed in the founding legislative instrument(s). |
| --- | --- |

10.

Obviously, the EDPS is closely following the developments regarding the creation of the Agency which is supposed to become responsible for the proper operation and security of databases, such as SIS II, VIS and Eurodac, which contain large amounts of personal data. As will be further explained in this Opinion, the EDPS is not opposed to the creation of such an Agency, as long as certain possible risks, which could have great impact on the privacy of individuals, are sufficiently addressed in the founding legislative instrument(s).

| 11. | Before explaining this point of view in greater detail in Part III and Part IV, the EDPS will first analyse in Part II the impact on the current proposals of the Lisbon Treaty which entered into force on 1 December 2009. In Part V, the EDPS will provide comments on several specific provisions of both proposals. |
| --- | --- |

11.

Before explaining this point of view in greater detail in Part III and Part IV, the EDPS will first analyse in Part II the impact on the current proposals of the Lisbon Treaty which entered into force on 1 December 2009. In Part V, the EDPS will provide comments on several specific provisions of both proposals.

II.   IMPACT OF THE LISBON TREATY

| 12. | The legal structure of the European Union has changed considerably with the entry into force of the Lisbon Treaty on 1 December 2009. Especially with regard to the area of freedom, security and justice, EU competence has been broadened and legislative procedures have been adjusted. The EDPS has analysed the impact of the changes in the Treaties on the current proposals. |
| --- | --- |

12.

The legal structure of the European Union has changed considerably with the entry into force of the Lisbon Treaty on 1 December 2009. Especially with regard to the area of freedom, security and justice, EU competence has been broadened and legislative procedures have been adjusted. The EDPS has analysed the impact of the changes in the Treaties on the current proposals.

| 13. | The legal bases mentioned in the proposed Regulation are the Articles 62(2)(a), 62(2)(b)(ii), 63(1)(a), 63(3)(b) and 66 of the EC Treaty. The text of these Articles can to a large extent be retraced in the Articles 77(1)(b), 77(2)(b), 77(2)(a), 78(2)(e), 79(2)(c) 74 TFEU. The legislative procedure which should be followed for adopting measures on these legal bases will not change, the co-decision procedure was applicable and will still be applicable but is now called the ‘ordinary legislative procedure’. The impact of the amended Treaties on the legal basis and the legislative procedure for the proposed Regulation therefore seems to be limited. |
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13.

The legal bases mentioned in the proposed Regulation are the Articles 62(2)(a), 62(2)(b)(ii), 63(1)(a), 63(3)(b) and 66 of the EC Treaty. The text of these Articles can to a large extent be retraced in the Articles 77(1)(b), 77(2)(b), 77(2)(a), 78(2)(e), 79(2)(c) 74 TFEU. The legislative procedure which should be followed for adopting measures on these legal bases will not change, the co-decision procedure was applicable and will still be applicable but is now called the ‘ordinary legislative procedure’. The impact of the amended Treaties on the legal basis and the legislative procedure for the proposed Regulation therefore seems to be limited.

| 14. | The Articles on which the proposed Council Decision is currently based are Article 30(1)(a), 30(1)(b) and Article 34(2)(c) of the EU Treaty. In the new Treaties, Article 34 of the EU Treaty has been repealed. Article 30(1)(a) is replaced by Article 87(2)(a) TFEU, which creates the basis for measures concerning the collection, storage and processing, analysis and exchange of relevant information, adopted in accordance with the ordinary legislative procedure. Article 30(1)(b) of the EU Treaty, which deals with operational cooperation between the competent authorities, is replaced by Article 87(3) TFEU which prescribes a special legislative procedure which means that the Council acts unanimously after consulting the European Parliament. Since the two legislative procedures are not compatible with each other, Article 87(2)(a) and Article 87(3) TFEU can no longer form the combined legal basis for the Council Decision. A choice therefore has to be made. |
| --- | --- |

14.

The Articles on which the proposed Council Decision is currently based are Article 30(1)(a), 30(1)(b) and Article 34(2)(c) of the EU Treaty. In the new Treaties, Article 34 of the EU Treaty has been repealed. Article 30(1)(a) is replaced by Article 87(2)(a) TFEU, which creates the basis for measures concerning the collection, storage and processing, analysis and exchange of relevant information, adopted in accordance with the ordinary legislative procedure. Article 30(1)(b) of the EU Treaty, which deals with operational cooperation between the competent authorities, is replaced by Article 87(3) TFEU which prescribes a special legislative procedure which means that the Council acts unanimously after consulting the European Parliament. Since the two legislative procedures are not compatible with each other, Article 87(2)(a) and Article 87(3) TFEU can no longer form the combined legal basis for the Council Decision. A choice therefore has to be made.

| 15. | The EDPS takes the view that Article 87(2)(a) TFEU could be the sole basis for the proposed measure. It would also be the preferred option since the use of the ordinary legislative procedure implies the full involvement of the European Parliament and ensures democratic legitimacy of the proposal (11). In that respect it must be underlined that the proposal deals with the establishment of an agency which will be responsible for the protection of personal data, which stems from a fundamental right acknowledged by Article 16 TFEU and Article 8 of the Charter of Fundamental Rights, which has become binding since 1 December 2009. |
| --- | --- |

15.

The EDPS takes the view that Article 87(2)(a) TFEU could be the sole basis for the proposed measure. It would also be the preferred option since the use of the ordinary legislative procedure implies the full involvement of the European Parliament and ensures democratic legitimacy of the proposal (11). In that respect it must be underlined that the proposal deals with the establishment of an agency which will be responsible for the protection of personal data, which stems from a fundamental right acknowledged by Article 16 TFEU and Article 8 of the Charter of Fundamental Rights, which has become binding since 1 December 2009.

| 16. | Taking Article 87(2)(a) TFEU as the sole legal basis would furthermore enable the Commission to merge the two current proposals into a single instrument for the establishment of the Agency, a Regulation to be adopted in accordance with the ordinary legislative procedure. |
| --- | --- |

16.

Taking Article 87(2)(a) TFEU as the sole legal basis would furthermore enable the Commission to merge the two current proposals into a single instrument for the establishment of the Agency, a Regulation to be adopted in accordance with the ordinary legislative procedure.

| 17. | The EDPS in any event invites the Commission to clarify this situation at a short notice. |
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17.

The EDPS in any event invites the Commission to clarify this situation at a short notice.

III.   THE ESTABLISHMENT OF AN AGENCY FROM A DATA PROTECTION POINT OF VIEW

| 18. | As mentioned above in point 3, the European Parliament and the Council invited the Commission to analyse alternatives and to present the necessary legislative proposals entrusting an agency with the long-term operational management of SIS II and VIS. Eurodac was added by the Commission. In the Impact Assessment the Commission explores five options for the operational management of the three systems:






  — | continuation of the current arrangement, namely management by the Commission, which, with regard to SIS II and VIS, includes a delegation of tasks to two Member States (Austria and France), |
| --- | --- | --- |

18.

As mentioned above in point 3, the European Parliament and the Council invited the Commission to analyse alternatives and to present the necessary legislative proposals entrusting an agency with the long-term operational management of SIS II and VIS. Eurodac was added by the Commission. In the Impact Assessment the Commission explores five options for the operational management of the three systems:

—

continuation of the current arrangement, namely management by the Commission, which, with regard to SIS II and VIS, includes a delegation of tasks to two Member States (Austria and France),

| — | same as the first option, and in addition the delegation of the operational management of Eurodac to Member States’ authorities, |
| --- | --- |

—

same as the first option, and in addition the delegation of the operational management of Eurodac to Member States’ authorities,

| — | setting up of a new regulatory agency, |
| --- | --- |

—

setting up of a new regulatory agency,

| — | handing over operational management to Frontex, |
| --- | --- |

—

handing over operational management to Frontex,

| — | handing over operational management of SIS II to Europol and continuation of Commission management of VIS and Eurodac. |
| --- | --- |

—

handing over operational management of SIS II to Europol and continuation of Commission management of VIS and Eurodac.

The Commission analysed these options from four different angles: operational, governance, finance and legal.

| 19. | As part of the legal analysis, the Commission compared how these different structures would allow for the effective safeguarding of fundamental rights and freedoms, and in particular of the protection of personal data. It concluded that option 3 and 4 were the preferable options in that respect (12). With regard to the first two options, the Commission pointed at the possible difficulties regarding the supervision by the EDPS which were discussed during the development of SIS II. In relation to the first two options, the Commission furthermore referred to the problematic situation, in terms of liability stemming from Article 288 of the EC Treaty (now: Article 340 TFEU), if operations were challenged which are carried out by national staff. |
| --- | --- |

19.

As part of the legal analysis, the Commission compared how these different structures would allow for the effective safeguarding of fundamental rights and freedoms, and in particular of the protection of personal data. It concluded that option 3 and 4 were the preferable options in that respect (12). With regard to the first two options, the Commission pointed at the possible difficulties regarding the supervision by the EDPS which were discussed during the development of SIS II. In relation to the first two options, the Commission furthermore referred to the problematic situation, in terms of liability stemming from Article 288 of the EC Treaty (now: Article 340 TFEU), if operations were challenged which are carried out by national staff.

| 20. | The EDPS agrees with the Commission that in the perspective of EDPS supervision, it would be preferable to have one European entity which is responsible for the operational management of a large-scale IT system such as SIS II, VIS and Eurodac. The establishment of one single entity would furthermore clarify issues of liability and applicable law. Regulation (EC) No 45/2001 would be applicable to all the activities of such a European entity. |
| --- | --- |

20.

The EDPS agrees with the Commission that in the perspective of EDPS supervision, it would be preferable to have one European entity which is responsible for the operational management of a large-scale IT system such as SIS II, VIS and Eurodac. The establishment of one single entity would furthermore clarify issues of liability and applicable law. Regulation (EC) No 45/2001 would be applicable to all the activities of such a European entity.

| 21. | The next question, however, is which or what kind of European entity that should be. The Commission discusses the establishment of a new agency and the use of two existing entities, namely Frontex and Europol. There is a strong argument against the operational management of large-scale IT systems by Frontex or Europol, since in the performance of their tasks, Frontex and Europol have their own interest in using personal data. Access by Europol to SIS II and VIS is already foreseen and legislation for access by Europol to Eurodac is currently under discussion (13). The EDPS takes the view that a preferable option would be one which entrusts the combined operational management of a large-scale database such as SIS II, VIS and Eurodac, to an independent entity which does not have its own interest as user of the database. This diminishes the risk of misuse of data. In that respect, the EDPS would like to point at the basic data protection principle of purpose limitation, which requires that personal data may not be used for purposes which are incompatible with the purpose for which the data were originally processed (14). |
| --- | --- |

21.

The next question, however, is which or what kind of European entity that should be. The Commission discusses the establishment of a new agency and the use of two existing entities, namely Frontex and Europol. There is a strong argument against the operational management of large-scale IT systems by Frontex or Europol, since in the performance of their tasks, Frontex and Europol have their own interest in using personal data. Access by Europol to SIS II and VIS is already foreseen and legislation for access by Europol to Eurodac is currently under discussion (13). The EDPS takes the view that a preferable option would be one which entrusts the combined operational management of a large-scale database such as SIS II, VIS and Eurodac, to an independent entity which does not have its own interest as user of the database. This diminishes the risk of misuse of data. In that respect, the EDPS would like to point at the basic data protection principle of purpose limitation, which requires that personal data may not be used for purposes which are incompatible with the purpose for which the data were originally processed (14).

| 22. | One option which is not discussed by the Commission is the operational management of the systems by the Commission itself, without any delegation to the national level. Close to this option is the establishment of an executive agency instead of a regulatory agency. Although there is no point of principle from a data protection point of view against the Commission taking up the task itself (the Commission itself is not the user of these systems) the EDPS sees the practical benefits of a separate agency. The choice for a regulatory instead of an executive agency can be welcomed as well, as it prevents the agency, and its scope of activities, from being established and determined on the basis of a Commission decision only. The current Agency will be established on the basis of a Regulation which is adopted in accordance with the ordinary legislative procedure and is therefore subject to a democratic decision. |
| --- | --- |

22.

One option which is not discussed by the Commission is the operational management of the systems by the Commission itself, without any delegation to the national level. Close to this option is the establishment of an executive agency instead of a regulatory agency. Although there is no point of principle from a data protection point of view against the Commission taking up the task itself (the Commission itself is not the user of these systems) the EDPS sees the practical benefits of a separate agency. The choice for a regulatory instead of an executive agency can be welcomed as well, as it prevents the agency, and its scope of activities, from being established and determined on the basis of a Commission decision only. The current Agency will be established on the basis of a Regulation which is adopted in accordance with the ordinary legislative procedure and is therefore subject to a democratic decision.

| 23. | The EDPS sees the advantages of creating an independent regulatory agency. The EDPS wishes to underline, however, that such an agency should only be established when the scope of its activities and its responsibilities are clearly defined. |
| --- | --- |

23.

The EDPS sees the advantages of creating an independent regulatory agency. The EDPS wishes to underline, however, that such an agency should only be established when the scope of its activities and its responsibilities are clearly defined.

IV.   TWO GENERAL CONCERNS REGARDING THE ESTABLISHMENT OF THE AGENCY

| 24. | During the current legislative and public debate on this proposal, concerns have been voiced about the possible creation of a ‘big brother agency’. This statement relates to the possibility of function creep, but also to the issue of interoperability of the different IT systems. These two concerns will be addressed in this part of the Opinion. |
| --- | --- |

24.

During the current legislative and public debate on this proposal, concerns have been voiced about the possible creation of a ‘big brother agency’. This statement relates to the possibility of function creep, but also to the issue of interoperability of the different IT systems. These two concerns will be addressed in this part of the Opinion.

| 25. | Before doing so, the EDPS would like to pose — as a basic assumption — that the risk of mistakes or wrongful use of personal data may increase when more large-scale IT systems are entrusted to the same operational manager. The total number of large-scale IT systems managed by one and the same Agency should therefore be restricted to a number with which the data protection safeguards can still sufficiently be assured. In other words, the point of departure should not be to bring as many large-scale IT-systems as possible under the operational management of one Agency. |
| --- | --- |

25.

Before doing so, the EDPS would like to pose — as a basic assumption — that the risk of mistakes or wrongful use of personal data may increase when more large-scale IT systems are entrusted to the same operational manager. The total number of large-scale IT systems managed by one and the same Agency should therefore be restricted to a number with which the data protection safeguards can still sufficiently be assured. In other words, the point of departure should not be to bring as many large-scale IT-systems as possible under the operational management of one Agency.

IV.1.   Function creep

| 26. | In the present context the fear of function creep refers to the idea that the new Agency will be able to create and combine on its own motion the already existing and new large-scale IT systems to an extent which is unforeseen at the moment. The EDPS is of the opinion that function creep by the Agency can be avoided if, first, the scope of (possible) activities of the Agency is limited and clearly defined in the founding legal instrument and, second, if it is ensured that any expansion of this scope will be based on a democratic decision making procedure, which normally is the ordinary legislative procedure. |
| --- | --- |

26.

In the present context the fear of function creep refers to the idea that the new Agency will be able to create and combine on its own motion the already existing and new large-scale IT systems to an extent which is unforeseen at the moment. The EDPS is of the opinion that function creep by the Agency can be avoided if, first, the scope of (possible) activities of the Agency is limited and clearly defined in the founding legal instrument and, second, if it is ensured that any expansion of this scope will be based on a democratic decision making procedure, which normally is the ordinary legislative procedure.

| 27. | As to the limitation of the scope of (possible) activities of the Agency the current proposal refers in Article 1 to the operational management of SIS II, VIS and Eurodac, as well as to ‘developing and managing other large-scale [IT] systems, in application of Title IV of the EC Treaty’. In terms of determination of scope, this last part raises three questions: what is meant by ‘developing’, what is meant by ‘large-scale IT systems’ and what is the meaning of the phrase after the comma? These three questions will be dealt with below in reverse order. |
| --- | --- |

27.

As to the limitation of the scope of (possible) activities of the Agency the current proposal refers in Article 1 to the operational management of SIS II, VIS and Eurodac, as well as to ‘developing and managing other large-scale [IT] systems, in application of Title IV of the EC Treaty’. In terms of determination of scope, this last part raises three questions: what is meant by ‘developing’, what is meant by ‘large-scale IT systems’ and what is the meaning of the phrase after the comma? These three questions will be dealt with below in reverse order.

What is the meaning of the phrase ‘in application of Title IV of the EC Treaty’?

| 28. | The phrase ‘in application of Title IV of the EC Treaty’ puts a limitation to the large-scale IT systems which can be brought under the responsibility of the Agency. The EDPS notices, however, that this phrase implies a more limited scope of possible activities than can be derived from the title of the proposed Regulation, recital 4 and recital 10. Those texts differ from Article 1 in the sense that they have a broader scope: they refer to the ‘area of freedom, security and justice’ instead of the more limited field of competence as laid down in Title IV of the EC Treaty (visas, asylum, immigration and other policies related to the free movement of persons). |
| --- | --- |

28.

The phrase ‘in application of Title IV of the EC Treaty’ puts a limitation to the large-scale IT systems which can be brought under the responsibility of the Agency. The EDPS notices, however, that this phrase implies a more limited scope of possible activities than can be derived from the title of the proposed Regulation, recital 4 and recital 10. Those texts differ from Article 1 in the sense that they have a broader scope: they refer to the ‘area of freedom, security and justice’ instead of the more limited field of competence as laid down in Title IV of the EC Treaty (visas, asylum, immigration and other policies related to the free movement of persons).

| 29. | The distinction between Title IV of the EC Treaty and the broader notion of the area of freedom, security and justice (which also encompasses Title VI of the EU Treaty) is recognised in Article 6 of the proposed Regulation, which deals in paragraph 1 with the possibility for the Agency to implement pilot schemes for the development and/or operational management of large-scale IT systems, in application of Title IV of the EC Treaty, and in paragraph 2 with the possibility that pilot schemes related to other large-scale IT systems are implemented by the Agency in the area of freedom, security and justice. Article 6(2) is strictly speaking not in conformity with Article 1 of the proposed Regulation. |
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29.

The distinction between Title IV of the EC Treaty and the broader notion of the area of freedom, security and justice (which also encompasses Title VI of the EU Treaty) is recognised in Article 6 of the proposed Regulation, which deals in paragraph 1 with the possibility for the Agency to implement pilot schemes for the development and/or operational management of large-scale IT systems, in application of Title IV of the EC Treaty, and in paragraph 2 with the possibility that pilot schemes related to other large-scale IT systems are implemented by the Agency in the area of freedom, security and justice. Article 6(2) is strictly speaking not in conformity with Article 1 of the proposed Regulation.

| 30. | The contradiction between Article 1 and the title of the proposed Regulation, as well as recitals 4 and 10 and Article 6(2) has to be solved. With reference to the basic assumption made in point 25 above, the EDPS is of the opinion that at this stage it would be recommended to indeed limit the area of competence to large-scale IT systems in application of Title IV of the EC Treaty. Since 1 December 2009, with the entry into force of the Lisbon Treaty, this would imply a limitation to the policy fields mentioned in Chapter 2 of Title V of the TFEU. After having acquired experience and after a positive evaluation of the functioning of the Agency (see Article 27 of the proposal, and the comments in point 49 below) the reference in Article 1 could perhaps be broadened to cover the whole area of freedom, security and justice, as long as such a decision is based on the ordinary legislative procedure. |
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30.

The contradiction between Article 1 and the title of the proposed Regulation, as well as recitals 4 and 10 and Article 6(2) has to be solved. With reference to the basic assumption made in point 25 above, the EDPS is of the opinion that at this stage it would be recommended to indeed limit the area of competence to large-scale IT systems in application of Title IV of the EC Treaty. Since 1 December 2009, with the entry into force of the Lisbon Treaty, this would imply a limitation to the policy fields mentioned in Chapter 2 of Title V of the TFEU. After having acquired experience and after a positive evaluation of the functioning of the Agency (see Article 27 of the proposal, and the comments in point 49 below) the reference in Article 1 could perhaps be broadened to cover the whole area of freedom, security and justice, as long as such a decision is based on the ordinary legislative procedure.

| 31. | Should the legislator, however, decide to opt for a scope as can be derived from the title and recitals 4 and 10, then another issue regarding Article 6(2) should be clarified. Contrary to the first paragraph of Article 6, the second paragraph does not specify that the implementation of the pilot scheme is for the development and/or operational management of large-scale IT systems. The deliberate distinction between the two paragraphs and the absence of the additional phrase in the second paragraph raises the question what the Commission actually tried to establish. Does it mean that the pilot schemes referred to in the first paragraph should include an assessment of the possible development and operational management by the new Agency, and that such an assessment is not part of the pilot schemes in the second paragraph? If that is the case, then it should be better clarified in the text because a deletion of the specification does not exclude the implementation and operational management of such systems by the agency. If the Commission meant something else, it should be clarified as well. |
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31.

Should the legislator, however, decide to opt for a scope as can be derived from the title and recitals 4 and 10, then another issue regarding Article 6(2) should be clarified. Contrary to the first paragraph of Article 6, the second paragraph does not specify that the implementation of the pilot scheme is for the development and/or operational management of large-scale IT systems. The deliberate distinction between the two paragraphs and the absence of the additional phrase in the second paragraph raises the question what the Commission actually tried to establish. Does it mean that the pilot schemes referred to in the first paragraph should include an assessment of the possible development and operational management by the new Agency, and that such an assessment is not part of the pilot schemes in the second paragraph? If that is the case, then it should be better clarified in the text because a deletion of the specification does not exclude the implementation and operational management of such systems by the agency. If the Commission meant something else, it should be clarified as well.

What is a large-scale IT system?

| 32. | The notion of ‘large-scale IT systems’ is a rather disputable one. There is not always a common understanding of which systems must be considered as large-scale IT systems and which should not. The interpretation of the notion has important implications for the scope of possible future activities of the Agency. The three large-scale IT systems which are explicitly mentioned in the proposal have as a common feature the storage of data in a centralised database for which the Commission is (currently) responsible. It is not clear whether the possible future activities of the Agency are limited to large-scale IT systems with such a characteristic, or whether it might also include decentralised systems whereby the Commission's responsibility is limited to the development and maintenance of the common infrastructure of such a system, such as the Prüm system and the European Criminal Records Information System (ECRIS) (15). In order to prevent any future misunderstanding, the EDPS invites the legislator to clarify the notion of large-scale IT systems in relation to the establishment of the Agency. |
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32.

The notion of ‘large-scale IT systems’ is a rather disputable one. There is not always a common understanding of which systems must be considered as large-scale IT systems and which should not. The interpretation of the notion has important implications for the scope of possible future activities of the Agency. The three large-scale IT systems which are explicitly mentioned in the proposal have as a common feature the storage of data in a centralised database for which the Commission is (currently) responsible. It is not clear whether the possible future activities of the Agency are limited to large-scale IT systems with such a characteristic, or whether it might also include decentralised systems whereby the Commission's responsibility is limited to the development and maintenance of the common infrastructure of such a system, such as the Prüm system and the European Criminal Records Information System (ECRIS) (15). In order to prevent any future misunderstanding, the EDPS invites the legislator to clarify the notion of large-scale IT systems in relation to the establishment of the Agency.

What is meant by ‘developing’ large-scale IT systems?

| 33. | Next to the operational management of large-scale IT systems, the Agency will also perform the tasks laid down in Article 5 (monitoring of research) and Article 6 (pilot schemes). The first implies the monitoring of relevant research and the reporting thereof to the Commission. Activities in relation to the pilot schemes are the implementation of pilot schemes for the development and/or operational management of large-scale IT systems (see, however, the comments in point 31 above). Article 6 defines how the word ‘development’ should be understood. The use of the word in Article 1 triggers the idea that the Agency could be responsible for the development of large-scale IT systems on its own motion. This, however, is excluded by the wording of Article 6(1) and (2). It is clearly stated that the Agency may do so ‘[u]pon specific and precise request of the Commission’. In other words, the initiative for the development of new large-scale IT systems lies with the Commission. Any decision to actually establish a new large-scale IT system should of course be based on the legislative procedures foreseen in the TFEU. To make the wording of Article 6 of the proposed Regulation even stronger, the legislator could decide to add the word ‘only’ at the start of Article 6(1) and (2). |
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33.

Next to the operational management of large-scale IT systems, the Agency will also perform the tasks laid down in Article 5 (monitoring of research) and Article 6 (pilot schemes). The first implies the monitoring of relevant research and the reporting thereof to the Commission. Activities in relation to the pilot schemes are the implementation of pilot schemes for the development and/or operational management of large-scale IT systems (see, however, the comments in point 31 above). Article 6 defines how the word ‘development’ should be understood. The use of the word in Article 1 triggers the idea that the Agency could be responsible for the development of large-scale IT systems on its own motion. This, however, is excluded by the wording of Article 6(1) and (2). It is clearly stated that the Agency may do so ‘[u]pon specific and precise request of the Commission’. In other words, the initiative for the development of new large-scale IT systems lies with the Commission. Any decision to actually establish a new large-scale IT system should of course be based on the legislative procedures foreseen in the TFEU. To make the wording of Article 6 of the proposed Regulation even stronger, the legislator could decide to add the word ‘only’ at the start of Article 6(1) and (2).

To sum up

| 34. | As stated, the risk of function creep can be avoided if, first, the scope of (possible) activities of the Agency is limited and clearly defined in the founding legal instrument and, second, if it is ensured that any expansion of this scope will be based on a democratic decision making procedure, which normally is the ordinary legislative procedure. The current text already contains specifications which limit the risk of function creep. |
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34.

As stated, the risk of function creep can be avoided if, first, the scope of (possible) activities of the Agency is limited and clearly defined in the founding legal instrument and, second, if it is ensured that any expansion of this scope will be based on a democratic decision making procedure, which normally is the ordinary legislative procedure. The current text already contains specifications which limit the risk of function creep.

| 35. | However, some uncertainties remain with regards to the precise scope of possible activities of the new Agency. The legislator should, in the first place, clarify and consciously decide whether the scope of activities is limited to Chapter 2 of Title V of the TFEU, or whether it potentially should cover all large-scale IT systems developed in the area of freedom, security and justice. The legislator should, in the second place, clarify the notion of large-scale IT systems within this framework, and make clear whether it is limited to large-scale IT systems which have as a feature the storage of data in a centralised database for which the Commission or the Agency is responsible. In the third place, although Article 6 already prevents the development of new IT systems by the Agency on its own motion, the text of Article 6 could be made even stronger by adding the word ‘only’ to paragraphs 1 and 2, if the latter is upheld. |
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35.

However, some uncertainties remain with regards to the precise scope of possible activities of the new Agency. The legislator should, in the first place, clarify and consciously decide whether the scope of activities is limited to Chapter 2 of Title V of the TFEU, or whether it potentially should cover all large-scale IT systems developed in the area of freedom, security and justice. The legislator should, in the second place, clarify the notion of large-scale IT systems within this framework, and make clear whether it is limited to large-scale IT systems which have as a feature the storage of data in a centralised database for which the Commission or the Agency is responsible. In the third place, although Article 6 already prevents the development of new IT systems by the Agency on its own motion, the text of Article 6 could be made even stronger by adding the word ‘only’ to paragraphs 1 and 2, if the latter is upheld.

IV.2.   Interoperability

| 36. | The notion of ‘interoperability’ is not unambiguous. The EDPS came to this conclusion in his comments of 10 March 2006 on the Communication of the Commission on interoperability of European databases (16). With regard to the new Agency, the notion of interoperability must be understood as including the risk that by putting several large-scale IT systems under the operational management of one Agency, similar technology will be used for all systems which can therefore easily be interconnected. In general, the EDPS endorses this concern. In his comments of 10 March 2006, the EDPS stated that making it technically feasible to interconnect different large-scale IT systems, constitutes a powerful drive to actually do so. It is a strong reason to once more emphasise the importance of the data protection rules. The EDPS therefore underlined that interoperability of large-scale IT systems can only be made possible with full respect for data protection principles and in particular with full respect to the earlier mentioned purpose limitation principle (see point 21 above). |
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36.

The notion of ‘interoperability’ is not unambiguous. The EDPS came to this conclusion in his comments of 10 March 2006 on the Communication of the Commission on interoperability of European databases (16). With regard to the new Agency, the notion of interoperability must be understood as including the risk that by putting several large-scale IT systems under the operational management of one Agency, similar technology will be used for all systems which can therefore easily be interconnected. In general, the EDPS endorses this concern. In his comments of 10 March 2006, the EDPS stated that making it technically feasible to interconnect different large-scale IT systems, constitutes a powerful drive to actually do so. It is a strong reason to once more emphasise the importance of the data protection rules. The EDPS therefore underlined that interoperability of large-scale IT systems can only be made possible with full respect for data protection principles and in particular with full respect to the earlier mentioned purpose limitation principle (see point 21 above).

| 37. | The possible encouragement to make large-scale IT systems interoperable if technology is used which can easily interconnect is, however, not necessarily related to the establishment of a new Agency. Also without such an agency systems might be developed in similar ways which could trigger interoperability. |
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37.

The possible encouragement to make large-scale IT systems interoperable if technology is used which can easily interconnect is, however, not necessarily related to the establishment of a new Agency. Also without such an agency systems might be developed in similar ways which could trigger interoperability.

| 38. | Whatever operational management structure is chosen, interoperability may only be made possible if it is in conformity with data protection rules and the actual decision to do so is based on an ordinary legislative procedure. It is clear from the proposed Regulation that the decision to make large-scale IT systems interoperable is not a decision which can be taken by the Agency (see also the analysis in point 33 above). To put it even stronger, as also follows from the Commission Communication on European agencies of 11 March 2008, the Commission is not allowed to delegate the power to adopt such a general regulatory measure to an agency (17). As long as such a decision is not taken, the Agency is obliged to put into place proper security measures in order to prevent any possible interconnection of the large-scale IT systems it manages (see on security measures also points 46 and 47). |
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38.

Whatever operational management structure is chosen, interoperability may only be made possible if it is in conformity with data protection rules and the actual decision to do so is based on an ordinary legislative procedure. It is clear from the proposed Regulation that the decision to make large-scale IT systems interoperable is not a decision which can be taken by the Agency (see also the analysis in point 33 above). To put it even stronger, as also follows from the Commission Communication on European agencies of 11 March 2008, the Commission is not allowed to delegate the power to adopt such a general regulatory measure to an agency (17). As long as such a decision is not taken, the Agency is obliged to put into place proper security measures in order to prevent any possible interconnection of the large-scale IT systems it manages (see on security measures also points 46 and 47).

| 39. | Interoperability (envisaged or possibly envisaged in the future) could be part of the request of the Commission to the Agency to implement a pilot scheme for the development of new large-scale IT systems, as described in Article 6 of the proposed Regulation. It triggers the question what procedure the Commission will follow for asking the Agency for such a pilot scheme. The request of the Commission should in any event be based on at least a preliminary assessment of whether the large-scale IT system as such, and the interoperability in particular, would be in conformity with the data protection requirements and more generally with the legal basis creating these systems. Furthermore, a compulsory consultation of the European Parliament and the EDPS could be part of the procedure leading to the request. The actual request of the Commission to the Agency should in any case be made accessible to all relevant stakeholders, including the Parliament and the EDPS. The EDPS urges the legislator to clarify this procedure. |
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39.

Interoperability (envisaged or possibly envisaged in the future) could be part of the request of the Commission to the Agency to implement a pilot scheme for the development of new large-scale IT systems, as described in Article 6 of the proposed Regulation. It triggers the question what procedure the Commission will follow for asking the Agency for such a pilot scheme. The request of the Commission should in any event be based on at least a preliminary assessment of whether the large-scale IT system as such, and the interoperability in particular, would be in conformity with the data protection requirements and more generally with the legal basis creating these systems. Furthermore, a compulsory consultation of the European Parliament and the EDPS could be part of the procedure leading to the request. The actual request of the Commission to the Agency should in any case be made accessible to all relevant stakeholders, including the Parliament and the EDPS. The EDPS urges the legislator to clarify this procedure.

V.   SPECIFIC COMMENTS

Recital 16 and Article 25 of the proposed Regulation: references to Regulation (EC) No 45/2001

| 40. | The proposed Regulation establishes an independent regulatory agency having legal personality. In recital 6 of the proposed Regulation, it is stated that such an agency will be established since the Management Authority should have legal, administrative and financial autonomy. As already stated in point 20 above the establishment of one single entity clarifies issues of liability and applicable law. |
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40.

The proposed Regulation establishes an independent regulatory agency having legal personality. In recital 6 of the proposed Regulation, it is stated that such an agency will be established since the Management Authority should have legal, administrative and financial autonomy. As already stated in point 20 above the establishment of one single entity clarifies issues of liability and applicable law.

| 41. | Article 25 of the proposed Regulation confirms that the processing of information by the new Agency is subject to Regulation (EC) No 45/2001. Recital 16 furthermore highlights that this means that the EDPS shall have the power to obtain from the Agency access to all information necessary for his or her enquiries. |
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41.

Article 25 of the proposed Regulation confirms that the processing of information by the new Agency is subject to Regulation (EC) No 45/2001. Recital 16 furthermore highlights that this means that the EDPS shall have the power to obtain from the Agency access to all information necessary for his or her enquiries.

| 42. | The EDPS is pleased to see that the applicability of Regulation (EC) No 45/2001 to the activities of the new Agency is underlined in such a way. Reference to Regulation (EC) No 45/2001 is missing in the proposed Council Decision, although it is clear that the Agency will also be bound by the provisions of that Regulation when the database is used for activities which fall under judicial and police cooperation in criminal matters. With the entry into force of the Lisbon Treaty, and should the legislator decide to uphold the division among two legal instruments (see the comments in Part II above), there is no reason against a reference to Regulation (EC) No 45/2001 in the recitals and/or provisions of the Council Decision as well. |
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42.

The EDPS is pleased to see that the applicability of Regulation (EC) No 45/2001 to the activities of the new Agency is underlined in such a way. Reference to Regulation (EC) No 45/2001 is missing in the proposed Council Decision, although it is clear that the Agency will also be bound by the provisions of that Regulation when the database is used for activities which fall under judicial and police cooperation in criminal matters. With the entry into force of the Lisbon Treaty, and should the legislator decide to uphold the division among two legal instruments (see the comments in Part II above), there is no reason against a reference to Regulation (EC) No 45/2001 in the recitals and/or provisions of the Council Decision as well.

Article 9(1)(o) of the proposed Regulation: the Data Protection Officer

| 43. | The EDPS is also pleased to see that the appointment of a Data Protection Officer (DPO) is made explicit in Article 9(1)(o) of the proposed Regulation. The EDPS wishes to emphasise the importance of appointing a DPO at an early stage, taking into account the EDPS position paper on DPOs (18). |
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43.

The EDPS is also pleased to see that the appointment of a Data Protection Officer (DPO) is made explicit in Article 9(1)(o) of the proposed Regulation. The EDPS wishes to emphasise the importance of appointing a DPO at an early stage, taking into account the EDPS position paper on DPOs (18).

Article 9(1)(i) and (j) of the proposed Regulation: annual working programme and activity report

| 44. | On the basis of Regulation (EC) No 45/2001, and through legal instruments establishing the IT systems, the EDPS has supervisory powers over the Agency. These powers, which are listed in Article 47 of Regulation (EC) No 45/2001, are mostly invoked when a breach of data protection rules has already occurred. The EDPS takes an interest in being regularly informed, not only afterwards but also beforehand, about the activities of the Agency. Currently the EDPS has developed a practice with the Commission which satisfies this interest. The EDPS expresses the hope that such a satisfactory cooperation will also be achieved with the newly established Agency. In the light of this, the EDPS recommends the legislator to include the EDPS in the list of recipients of the annual work programme and the annual activity report, as regulated in Article 9(1)(i) and (j) of the proposed Regulation. |
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44.

On the basis of Regulation (EC) No 45/2001, and through legal instruments establishing the IT systems, the EDPS has supervisory powers over the Agency. These powers, which are listed in Article 47 of Regulation (EC) No 45/2001, are mostly invoked when a breach of data protection rules has already occurred. The EDPS takes an interest in being regularly informed, not only afterwards but also beforehand, about the activities of the Agency. Currently the EDPS has developed a practice with the Commission which satisfies this interest. The EDPS expresses the hope that such a satisfactory cooperation will also be achieved with the newly established Agency. In the light of this, the EDPS recommends the legislator to include the EDPS in the list of recipients of the annual work programme and the annual activity report, as regulated in Article 9(1)(i) and (j) of the proposed Regulation.

Article 9(1)(r) of the proposed Regulation: audits by the EDPS

| 45. | Article 9(1)(r) of the proposed Regulation deals with the EDPS’ report about the audit pursuant to Article 45 of Regulation (EC) No 1987/2006 on SIS II and Article 42(2) of Regulation (EC) No 767/2008 on VIS. The current wording gives the impression that the Agency has total discretion as to the follow-up of the audit including the possibility not to follow recommendations at all. Although the Agency can make comments on the report and will be free as to how to implement the recommendations of the EDPS, not following the recommendations at all is no option. The EDPS therefore suggests either deleting this Article or replacing the phrase ‘and decide on the follow-up of the audit’ by: ‘and decide on how to implement the recommendations in the most appropriate way following the audit’. |
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45.

Article 9(1)(r) of the proposed Regulation deals with the EDPS’ report about the audit pursuant to Article 45 of Regulation (EC) No 1987/2006 on SIS II and Article 42(2) of Regulation (EC) No 767/2008 on VIS. The current wording gives the impression that the Agency has total discretion as to the follow-up of the audit including the possibility not to follow recommendations at all. Although the Agency can make comments on the report and will be free as to how to implement the recommendations of the EDPS, not following the recommendations at all is no option. The EDPS therefore suggests either deleting this Article or replacing the phrase ‘and decide on the follow-up of the audit’ by: ‘and decide on how to implement the recommendations in the most appropriate way following the audit’.

Article 9(1)(n), Article 14(6)(g) and Article 26 of the proposed Regulation: rules on security

| 46. | The proposed Regulation states that the Executive Director shall submit to the Management Board for adoption, the draft for the necessary security measures including a security plan (see Article 14(6)(g) and Article 9(1)(n)). Security is also mentioned in Article 26 which deals with the security rules on the protection of classified information and non-classified sensitive information. Reference is made to Commission Decision 2001/844/EC, ECSC, Euratom (19) and in the second paragraph to the security principles relating to the processing of non-classified sensitive information as adopted and implemented by the European Commission. Apart from the comments to follow in the next point, the EDPS recommends the legislator to include a reference to specific documentation in the second paragraph as well since the paragraph is rather vague as it stands now. |
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46.

The proposed Regulation states that the Executive Director shall submit to the Management Board for adoption, the draft for the necessary security measures including a security plan (see Article 14(6)(g) and Article 9(1)(n)). Security is also mentioned in Article 26 which deals with the security rules on the protection of classified information and non-classified sensitive information. Reference is made to Commission Decision 2001/844/EC, ECSC, Euratom (19) and in the second paragraph to the security principles relating to the processing of non-classified sensitive information as adopted and implemented by the European Commission. Apart from the comments to follow in the next point, the EDPS recommends the legislator to include a reference to specific documentation in the second paragraph as well since the paragraph is rather vague as it stands now.

| 47. | The EDPS wishes to point at the fact that the legal instruments underlying SIS II, VIS and Eurodac contain detailed provisions regarding security. It is not self evident that these specific rules are completely similar or fully compatible with the rules referred to in Article 26. Since the highest level of security should be ensured by the security plan, the EDPS recommends the legislator to change Article 26 into a broader provision which addresses the issue of security rules in a more general way and include references to the relevant provisions of the legal instruments concerning the three large-scale IT systems. This should be preceded by an assessment of how far the rules referred to are similar and compatible with each other. A link should furthermore be established between this broader provision and Article 14(6)(g) and Article 9(1)(n) which deal with the drafting and adoption of security measures and a security plan. |
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47.

The EDPS wishes to point at the fact that the legal instruments underlying SIS II, VIS and Eurodac contain detailed provisions regarding security. It is not self evident that these specific rules are completely similar or fully compatible with the rules referred to in Article 26. Since the highest level of security should be ensured by the security plan, the EDPS recommends the legislator to change Article 26 into a broader provision which addresses the issue of security rules in a more general way and include references to the relevant provisions of the legal instruments concerning the three large-scale IT systems. This should be preceded by an assessment of how far the rules referred to are similar and compatible with each other. A link should furthermore be established between this broader provision and Article 14(6)(g) and Article 9(1)(n) which deal with the drafting and adoption of security measures and a security plan.

Article 7(4) and 19 of the proposed Regulation: the accommodation of the Agency

| 48. | The EDPS is conscious of the fact that the decision on the seat of the Agency, as foreseen in Article 7(4), is to a large extent a political one. Still, the EDPS recommends that, in light of Article 19 which deals with the headquarters Agreement, the choice of seat will be based on objective criteria such as the accommodation available, which should be a single building dedicated to the Agency only, and the possibilities to ensure the security of the building. |
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48.

The EDPS is conscious of the fact that the decision on the seat of the Agency, as foreseen in Article 7(4), is to a large extent a political one. Still, the EDPS recommends that, in light of Article 19 which deals with the headquarters Agreement, the choice of seat will be based on objective criteria such as the accommodation available, which should be a single building dedicated to the Agency only, and the possibilities to ensure the security of the building.

Article 27 of the proposed Regulation: evaluation

| 49. | Article 27 of the proposed Regulation determines that within three years from the date on which the Agency takes up its responsibilities and every five years thereafter, the Management Board shall commission an independent external evaluation on the basis of terms of reference issued by the Management Board after consultation of the Commission. In order to ensure that data protection is part of these terms of reference, the EDPS recommends the legislator to make explicit reference to this in the first paragraph. The EDPS furthermore invites the legislator to specify in a non-limitative way the stakeholders referred to in the second paragraph and include the EDPS. The EDPS recommends the legislator also to include the EDPS in the list of institutions which receive the documents referred to in the third paragraph. |
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49.

Article 27 of the proposed Regulation determines that within three years from the date on which the Agency takes up its responsibilities and every five years thereafter, the Management Board shall commission an independent external evaluation on the basis of terms of reference issued by the Management Board after consultation of the Commission. In order to ensure that data protection is part of these terms of reference, the EDPS recommends the legislator to make explicit reference to this in the first paragraph. The EDPS furthermore invites the legislator to specify in a non-limitative way the stakeholders referred to in the second paragraph and include the EDPS. The EDPS recommends the legislator also to include the EDPS in the list of institutions which receive the documents referred to in the third paragraph.

VI.   CONCLUSION AND RECOMMENDATIONS

| 50. | As a preliminary matter, the EDPS points at the impossibility of basing the proposed Council Decision on the two articles of the TFEU which are the successors of the articles of the EU Treaty on which the proposal is currently based. The EDPS invites the Commission to clarify the situation and to consider using as a legal basis the article which grants most power to the European Parliament and to consider merging the two proposals into one Regulation. |
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50.

As a preliminary matter, the EDPS points at the impossibility of basing the proposed Council Decision on the two articles of the TFEU which are the successors of the articles of the EU Treaty on which the proposal is currently based. The EDPS invites the Commission to clarify the situation and to consider using as a legal basis the article which grants most power to the European Parliament and to consider merging the two proposals into one Regulation.

| 51. | The EDPS has analysed the different options for the operational management of SIS II, VIS and Eurodac, and sees the advantages of creating a regulatory agency for the operational management of certain large-scale IT systems. The EDPS underlines, however, that such an agency should only be established if the scope of its activities and its responsibilities are clearly defined. |
| --- | --- |

51.

The EDPS has analysed the different options for the operational management of SIS II, VIS and Eurodac, and sees the advantages of creating a regulatory agency for the operational management of certain large-scale IT systems. The EDPS underlines, however, that such an agency should only be established if the scope of its activities and its responsibilities are clearly defined.

| 52. | The EDPS discussed two general concerns regarding the establishment of an agency with data protection relevance: the risk of function creep and the consequences for the interoperability of the systems. |
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52.

The EDPS discussed two general concerns regarding the establishment of an agency with data protection relevance: the risk of function creep and the consequences for the interoperability of the systems.

| 53. | The EDPS takes the view that the risk of function creep can be avoided if, first, the scope of (possible) activities of the Agency is limited and clearly defined in the founding legal instrument and, second, it is ensured that any expansion of this scope will be based on a democratic decision making procedure. The EDPS notes that the current proposals already contain such specifications but that some uncertainties remain. The EDPS therefore recommends the legislator:






  — | to clarify and consciously decide whether the scope of activities of the Agency is limited to Chapter 2 of Title V of the TFEU, or whether it potentially should cover all large-scale IT systems developed in the area of freedom, security and justice, |
| --- | --- | --- |

53.

The EDPS takes the view that the risk of function creep can be avoided if, first, the scope of (possible) activities of the Agency is limited and clearly defined in the founding legal instrument and, second, it is ensured that any expansion of this scope will be based on a democratic decision making procedure. The EDPS notes that the current proposals already contain such specifications but that some uncertainties remain. The EDPS therefore recommends the legislator:

—

to clarify and consciously decide whether the scope of activities of the Agency is limited to Chapter 2 of Title V of the TFEU, or whether it potentially should cover all large-scale IT systems developed in the area of freedom, security and justice,

| — | to clarify the notion of large-scale IT systems in relation to the establishment of the Agency, and make clear whether it is limited to such systems which have as a feature the storage of data in a centralised database for which the Commission or the Agency is responsible, |
| --- | --- |

—

to clarify the notion of large-scale IT systems in relation to the establishment of the Agency, and make clear whether it is limited to such systems which have as a feature the storage of data in a centralised database for which the Commission or the Agency is responsible,

| — | to make the text of Article 6 even stronger by adding the word ‘only’ to paragraphs 1 and 2, if the latter is upheld. |
| --- | --- |

—

to make the text of Article 6 even stronger by adding the word ‘only’ to paragraphs 1 and 2, if the latter is upheld.

| 54. | In general, the EDPS is concerned about ambiguities in the developments regarding possible interoperability of large-scale IT systems. The EDPS, however, does not consider the establishment of the Agency as the most threatening factor in that respect. The EDPS noticed that the Agency will not be able to decide on interoperability on its own motion. The EDPS encourages the legislator, in the context of the proposed pilot schemes, to clarify the procedure which the Commission should follow before requesting for a pilot scheme. According to the EDPS, such a procedure should include an assessment, which might require a consultation of the European Parliament and the EDPS, of the possible impact on data protection of the initiative developed following such a request. |
| --- | --- |

54.

In general, the EDPS is concerned about ambiguities in the developments regarding possible interoperability of large-scale IT systems. The EDPS, however, does not consider the establishment of the Agency as the most threatening factor in that respect. The EDPS noticed that the Agency will not be able to decide on interoperability on its own motion. The EDPS encourages the legislator, in the context of the proposed pilot schemes, to clarify the procedure which the Commission should follow before requesting for a pilot scheme. According to the EDPS, such a procedure should include an assessment, which might require a consultation of the European Parliament and the EDPS, of the possible impact on data protection of the initiative developed following such a request.

| 55. | The EDPS furthermore makes the following specific recommendations:






  — | to include the EDPS in the list of recipients of the annual work programme and the annual activity report, as regulated in Article 9(1)(i) and (j) of the proposed Regulation, |
| --- | --- | --- |

55.

The EDPS furthermore makes the following specific recommendations:

—

to include the EDPS in the list of recipients of the annual work programme and the annual activity report, as regulated in Article 9(1)(i) and (j) of the proposed Regulation,

| — | to either delete Article 9(1)(r) of the proposed Regulation or replace the phrase ‘and decide on the follow-up of the audit’ by: ‘and decide on how to implement the recommendations in the most appropriate way following the audit’, |
| --- | --- |

—

to either delete Article 9(1)(r) of the proposed Regulation or replace the phrase ‘and decide on the follow-up of the audit’ by: ‘and decide on how to implement the recommendations in the most appropriate way following the audit’,

| — | to change Article 26 of the proposed Regulation into a provision which addresses the issue of security rules in a more general way and which includes references to the relevant provisions of the legal instruments concerning the three large-scale IT systems and to establish a link between this broader provision and Article 14(6)(g) and Article 9(1)(n) of the proposed Regulation, |
| --- | --- |

—

to change Article 26 of the proposed Regulation into a provision which addresses the issue of security rules in a more general way and which includes references to the relevant provisions of the legal instruments concerning the three large-scale IT systems and to establish a link between this broader provision and Article 14(6)(g) and Article 9(1)(n) of the proposed Regulation,

| — | in relation to the previous point, to include a reference to specific documentation in Article 26(2) of the proposed Regulation, |
| --- | --- |

—

in relation to the previous point, to include a reference to specific documentation in Article 26(2) of the proposed Regulation,

| — | to take into account objective, practical, criteria when the seat of the agency is chosen, |
| --- | --- |

—

to take into account objective, practical, criteria when the seat of the agency is chosen,

| — | to include the EDPS in the list of institutions which receive the documents referred to in Article 27(3) of the proposed Regulation. |
| --- | --- |

—

to include the EDPS in the list of institutions which receive the documents referred to in Article 27(3) of the proposed Regulation.

Done at Brussels, 7 December 2009.

Peter HUSTINX

European Data Protection Supervisor

---

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

1

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

2

(3)  See COM(2009) 293 final and COM(2009) 294 final.

3

(4)  See COM(2009) 292 final.

4

(5)  See SEC(2009) 836 final and SEC(2009) 837 final.

5

(6)  See Article 15 of Regulation (EC) No 1987/2006 on SIS II (OJ L 381, 28.12.2006, p. 4), Article 26 of Regulation (EC) No 767/2008 on VIS (OJ L 218, 13.8.2008, p. 60) and Article 13 of Council Regulation (EC) No 2725/2000 (OJ L 316, 15.12.2000, p. 1).

6

(7)  See the Joint Statement of 7 June 2007, which is attached to the Legislative Resolution of the Parliament of 7 June 2007 on the proposed VIS Regulation.

7

(8)  See recital 5 of the proposed Regulation.

8

(9)  OJ L 205, 7.8.2007, p. 63 and OJ L 218, 13.8.2008, p. 129.

9

(10)  If Europol is granted access to Eurodac after the adoption of the proposed Council Decision on requesting comparisons with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes (see COM(2009) 344 final), it will probably be entitled to the same positions in relation to Eurodac. See on the proposed Council Decision however the critical opinion of the EDPS of 7 October 2009 which is available at: http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2009/09-10-07_Access_Eurodac_EN.pdf

10

(11)  In the so-called Titanium Dioxide judgement, the ECJ attached particular weight to the participation of the European Parliament in the decision-making process, see ECJ of 11 June 1991, Commission v. Council, Case C-300/89, [ECR] 1991, p. I-2867, par. 21.

11

Commission

Council

(12)  See the Impact Assessment at page 32.

12

(13)  See on the latter the Opinion of the EDPS of 7 October 2009 referred to in footnote 10.

13

(14)  See Article 4(1)(b) of Regulation (EC) No 45/2001.

14

(15)  See for the Prüm system Council Decisions 2008/615/JHA and 2008/616/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime (OJ L 210, 6.8.2008, p. 1 and OJ L 210, 6.8.2008, p. 12) and the Opinions of the EDPS of 4 April 2007 (OJ C 169, 21.7.2007, p. 2) and 19 December 2007 (OJ C 89, 10.4.2008, p. 1). And for ECRIS Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) (OJ L 93, 7.4.2009, p. 33) and the Opinion of the EDPS of 16 September 2008 (OJ C 42, 20.2.2009, p. 1).

15

(16)  Comments of the EDPS of 10 March 2006, to be found at http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Comments/2006/06-03-10_Interoperability_EN.pdf

16

(17)  COM(2008) 135 final, p. 5.

17

(18)  Position Paper of the EDPS of 28 November 2005, available at: http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/EDPS/Publications/Papers/PositionP/05-11-28_DPO_paper_EN.pdf

18

(19)  OJ L 317, 3.12.2001, p. 1.

19

---

II Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

| 19.3.2010 | EN | Official Journal of the European Union | C 70/21 |
| --- | --- | --- | --- |

19.3.2010

EN

Official Journal of the European Union

C 70/21

---

Authorisation for State aid pursuant to Articles 107 and 108 TFEU

Cases where the Commission raises no objections

(Text with EEA relevance)

2010/C 70/03

| Date of adoption of the decision | 27.1.2010 |
| --- | --- |
| Reference number of State Aid | N 672/08 |
| Member State | Greece |
| Region | Attiki |
| Title (and/or name of the beneficiary) | Restructuring aid to Kalofolias S.A. |
| Legal basis | Νόμος 3299/2004, όπως τροποποιήθηκε και ισχύει. Ο νόμος έχει ήδη καταχωρηθεί, με βάση τον κανονισμό 1828/2006, ως καθεστώς περιφερειακών ενισχύσεων με στοιχεία XR 86/2007 «Κίνητρα για ιδιωτικές επενδύσεις με σκοπό την προώθηση της οικονομικής ανάπτυξης και της περιφερειακής σύγκλισης». |
| Type of measure | Individual aid |
| Objective | Restructuring of firms in difficulty |
| Form of aid | Direct grant |
| Budget | Overall budget: EUR 7,1 million |
| Intensity | — |
| Duration (period) | 1.1.2009-31.12.2012 |
| Economic sectors | Media, Manufacturing industry, Post and telecommunications |
| Name and address of the granting authority | Υπουργείο Οικονομίας & Οικονομικών, Γενική Γραμματεία Επενδύσεων και Ανάπτυξης |
| Γενική Διεύθυνση Ιδιωτικών Επενδύσεων |
| Νίκης 5-7 |
| 101 80 Αθήνα/Athens |
| ΕΛΛΑΔΑ/GREECE |

Date of adoption of the decision

27.1.2010

Reference number of State Aid

N 672/08

Member State

Greece

Region

Attiki

Title (and/or name of the beneficiary)

Restructuring aid to Kalofolias S.A.

Legal basis

Νόμος 3299/2004, όπως τροποποιήθηκε και ισχύει. Ο νόμος έχει ήδη καταχωρηθεί, με βάση τον κανονισμό 1828/2006, ως καθεστώς περιφερειακών ενισχύσεων με στοιχεία XR 86/2007 «Κίνητρα για ιδιωτικές επενδύσεις με σκοπό την προώθηση της οικονομικής ανάπτυξης και της περιφερειακής σύγκλισης».

Type of measure

Individual aid

Objective

Restructuring of firms in difficulty

Form of aid

Direct grant

Budget

Overall budget: EUR 7,1 million

Intensity

—

Duration (period)

1.1.2009-31.12.2012

Economic sectors

Media, Manufacturing industry, Post and telecommunications

Name and address of the granting authority

Υπουργείο Οικονομίας & Οικονομικών, Γενική Γραμματεία Επενδύσεων και Ανάπτυξης

Γενική Διεύθυνση Ιδιωτικών Επενδύσεων

Νίκης 5-7

101 80 Αθήνα/Athens

ΕΛΛΑΔΑ/GREECE

Other information

—

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

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

| Date of adoption of the decision | 15.12.2009 |
| --- | --- |
| Reference number of State Aid | N 296/09 |
| Member State | Germany |
| Region | Biberach |
| Title (and/or name of the beneficiary) | Staatliche Beihilfe N 296/09 — F2F; FuE-Einzelbeihilfe im Bereich der Luftfahrt zugunsten der Diehl Aircabin GmbH |
| Legal basis | Haushaltsgesetz des Bundes, Bundeshaushalt 2009: Kapitel 0902; Titel 66292 — 634: Ausgaben zur Absicherung des Ausfallrisikos im Zusammenhang mit Darlehen zur Finanzierung der anteiligen Entwicklungskosten ziviler Luftfahrzeuge; Gesetz über die Kreditanstalt für Wiederaufbau in der Fassung der Bekanntmachung vom 23. Juni 1969 (BGBl. I S. 573), zuletzt geändert durch Artikel 173 der Verordnung vom 31. Oktober 2006 (BGBl. I S. 2407); Bekanntmachung über die Möglichkeit einer anteiligen Finanzierung der Entwicklungskosten von Projekten beteiligter Unternehmen der Ausrüstungsindustrie am Programm A350XWB und an anderen künftigen zivilen Flugzeugprogrammen |
| Type of measure | Individual aid |
| Objective | Research and development |
| Form of aid | Reimbursable grant |
| Budget | Overall budget: EUR 14,69 million |
| Intensity | 25 % |
| Duration (period) | 2009-2013 |
| Economic sectors | Manufacturing industry |
| Name and address of the granting authority | Bundesministerium für Wirtschaft und Technologie |
| 10119 Berlin |
| DEUTSCHLAND |

Date of adoption of the decision

15.12.2009

Reference number of State Aid

N 296/09

Member State

Germany

Region

Biberach

Title (and/or name of the beneficiary)

Staatliche Beihilfe N 296/09 — F2F; FuE-Einzelbeihilfe im Bereich der Luftfahrt zugunsten der Diehl Aircabin GmbH

Legal basis

Haushaltsgesetz des Bundes, Bundeshaushalt 2009: Kapitel 0902; Titel 66292 — 634: Ausgaben zur Absicherung des Ausfallrisikos im Zusammenhang mit Darlehen zur Finanzierung der anteiligen Entwicklungskosten ziviler Luftfahrzeuge; Gesetz über die Kreditanstalt für Wiederaufbau in der Fassung der Bekanntmachung vom 23. Juni 1969 (BGBl. I S. 573), zuletzt geändert durch Artikel 173 der Verordnung vom 31. Oktober 2006 (BGBl. I S. 2407); Bekanntmachung über die Möglichkeit einer anteiligen Finanzierung der Entwicklungskosten von Projekten beteiligter Unternehmen der Ausrüstungsindustrie am Programm A350XWB und an anderen künftigen zivilen Flugzeugprogrammen

Type of measure

Individual aid

Objective

Research and development

Form of aid

Reimbursable grant

Budget

Overall budget: EUR 14,69 million

Intensity

25 %

Duration (period)

2009-2013

Economic sectors

Manufacturing industry

Name and address of the granting authority

Bundesministerium für Wirtschaft und Technologie

10119 Berlin

DEUTSCHLAND

Other information

—

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

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

| Date of adoption of the decision | 15.12.2009 |
| --- | --- |
| Reference number of State Aid | N 297/09 |
| Member State | Germany |
| Region | Biberach |
| Title (and/or name of the beneficiary) | Staatliche Beihilfe N 297/09 — Airducts; FuE-Einzelbeihilfe im Bereich der Luftfahrt zugunsten der Diehl Aircabin GmbH |
| Legal basis | Haushaltsgesetz des Bundes, Bundeshaushalt 2009: Kapitel 0902; Titel 66292 — 634: Ausgaben zur Absicherung des Ausfallrisikos im Zusammenhang mit Darlehen zur Finanzierung der anteiligen Entwicklungskosten ziviler Luftfahrzeuge; Gesetz über die Kreditanstalt für Wiederaufbau in der Fassung der Bekanntmachung vom 23. Juni 1969 (BGBl. I S. 573), zuletzt geändert durch Artikel 173 der Verordnung vom 31. Oktober 2006 (BGBl. I S. 2407); Bekanntmachung über die Möglichkeit einer anteiligen Finanzierung der Entwicklungskosten von Projekten beteiligter Unternehmen der Ausrüstungsindustrie am Programm A350XWB und an anderen künftigen zivilen Flugzeugprogrammen |
| Type of measure | Individual aid |
| Objective | Research and development |
| Form of aid | Reimbursable grant |
| Budget | Overall budget: EUR 10,93 million |
| Intensity | 25 % |
| Duration (period) | 2009-2013 |
| Economic sectors | Manufacturing industry |
| Name and address of the granting authority | Bundesministerium für Wirtschaft und Technologie |
| 10119 Berlin |
| DEUTSCHLAND |

Date of adoption of the decision

15.12.2009

Reference number of State Aid

N 297/09

Member State

Germany

Region

Biberach

Title (and/or name of the beneficiary)

Staatliche Beihilfe N 297/09 — Airducts; FuE-Einzelbeihilfe im Bereich der Luftfahrt zugunsten der Diehl Aircabin GmbH

Legal basis

Haushaltsgesetz des Bundes, Bundeshaushalt 2009: Kapitel 0902; Titel 66292 — 634: Ausgaben zur Absicherung des Ausfallrisikos im Zusammenhang mit Darlehen zur Finanzierung der anteiligen Entwicklungskosten ziviler Luftfahrzeuge; Gesetz über die Kreditanstalt für Wiederaufbau in der Fassung der Bekanntmachung vom 23. Juni 1969 (BGBl. I S. 573), zuletzt geändert durch Artikel 173 der Verordnung vom 31. Oktober 2006 (BGBl. I S. 2407); Bekanntmachung über die Möglichkeit einer anteiligen Finanzierung der Entwicklungskosten von Projekten beteiligter Unternehmen der Ausrüstungsindustrie am Programm A350XWB und an anderen künftigen zivilen Flugzeugprogrammen

Type of measure

Individual aid

Objective

Research and development

Form of aid

Reimbursable grant

Budget

Overall budget: EUR 10,93 million

Intensity

25 %

Duration (period)

2009-2013

Economic sectors

Manufacturing industry

Name and address of the granting authority

Bundesministerium für Wirtschaft und Technologie

10119 Berlin

DEUTSCHLAND

Other information

—

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

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

| Date of adoption of the decision | 22.12.2009 |
| --- | --- |
| Reference number of State Aid | N 608/09 |
| Member State | Germany |
| Region | — |
| Title (and/or name of the beneficiary) | State aid N 608/09 — Germany — Prolongation of Deutscher Filmförderfonds (N 695/06) |
| Legal basis | Richtlinie des Deutschen Filmförderungsfonds, Bundeshaushaltsgesetz und Bundeshaushaltsordnung |
| Type of measure | Aid scheme |
| Objective | Culture |
| Form of aid | Direct grant |
| Budget | Annual budget: EUR 60 million |
| Intensity | 20 % |
| Duration (period) | 1.1.2010-31.12.2010 |
| Economic sectors | Media |
| Name and address of the granting authority | Filmförderungsanstalt, Bundesanstalt des öffentlichen Rechts |
| Große Präsidentenstraße 9 |
| 10178 Berlin |
| DEUTSCHLAND |

Date of adoption of the decision

22.12.2009

Reference number of State Aid

N 608/09

Member State

Germany

Region

—

Title (and/or name of the beneficiary)

State aid N 608/09 — Germany — Prolongation of Deutscher Filmförderfonds (N 695/06)

Legal basis

Richtlinie des Deutschen Filmförderungsfonds, Bundeshaushaltsgesetz und Bundeshaushaltsordnung

Type of measure

Aid scheme

Objective

Culture

Form of aid

Direct grant

Budget

Annual budget: EUR 60 million

Intensity

20 %

Duration (period)

1.1.2010-31.12.2010

Economic sectors

Media

Name and address of the granting authority

Filmförderungsanstalt, Bundesanstalt des öffentlichen Rechts

Große Präsidentenstraße 9

10178 Berlin

DEUTSCHLAND

Other information

—

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

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

| Date of adoption of the decision | 2.2.2010 |
| --- | --- |
| Reference number of State Aid | N 683/09 |
| Member State | Spain |
| Region | — |
| Title (and/or name of the beneficiary) | Programa Emprendedores en red |
| Legal basis | Borrador de la Orden Modificada que modifica el ORDEN ITC/2544/2009, de 11 de septiembre 2009 por la que se aprueba la normativa reguladora de los créditos para la puesta en marcha del programa «Emprendedores en red» — BOE, 24.9.2009, núm. 231
  Convenio entre la Secretaría de Estado de Telecomunicaciones y para la Sociedad de la Información y Red.es para la puesta en marcha del Programa Emprendedores en red |
| Type of measure | Aid scheme |
| Objective | Risk capital |
| Form of aid | Provision of risk capital |
| Budget | Annual budget: EUR 35 million
  Overall budget: EUR 35 million |
| Intensity | — |
| Duration (period) | Until 31.12.2010 |
| Economic sectors | Computer and related activities |
| Name and address of the granting authority | Red.es |
| Plaza Manuel Gomez Moreno s/n |
| 28020 Madrid |
| ESPAÑA |

Date of adoption of the decision

2.2.2010

Reference number of State Aid

N 683/09

Member State

Spain

Region

—

Title (and/or name of the beneficiary)

Programa Emprendedores en red

Legal basis

Borrador de la Orden Modificada que modifica el ORDEN ITC/2544/2009, de 11 de septiembre 2009 por la que se aprueba la normativa reguladora de los créditos para la puesta en marcha del programa «Emprendedores en red» — BOE, 24.9.2009, núm. 231

Convenio entre la Secretaría de Estado de Telecomunicaciones y para la Sociedad de la Información y Red.es para la puesta en marcha del Programa Emprendedores en red

Type of measure

Aid scheme

Objective

Risk capital

Form of aid

Provision of risk capital

Budget

Annual budget: EUR 35 million

Overall budget: EUR 35 million

Intensity

—

Duration (period)

Until 31.12.2010

Economic sectors

Computer and related activities

Name and address of the granting authority

Red.es

Plaza Manuel Gomez Moreno s/n

28020 Madrid

ESPAÑA

Other information

—

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

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

---

| 19.3.2010 | EN | Official Journal of the European Union | C 70/26 |
| --- | --- | --- | --- |

19.3.2010

EN

Official Journal of the European Union

C 70/26

---

Non-opposition to a notified concentration

(Case COMP/M.5732 — Hewlett-Packard/3COM)

(Text with EEA relevance)

2010/C 70/04

On 12 February 2010, the Commission decided not to oppose the above notified concentration and to declare it compatible with the common market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004. The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available:

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

—

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

| — | in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32010M5732. EUR-Lex is the on-line access to the European law. |
| --- | --- |

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32010M5732. EUR-Lex is the on-line access to the European law.

---

IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

| 19.3.2010 | EN | Official Journal of the European Union | C 70/27 |
| --- | --- | --- | --- |

19.3.2010

EN

Official Journal of the European Union

C 70/27

---

Euro exchange rates (1)

18 March 2010

2010/C 70/05

1 euro =

| | Currency | Exchange rate |
| --- | --- | --- |
| USD | US dollar | 1,3660 |
| JPY | Japanese yen | 123,33 |
| DKK | Danish krone | 7,4407 |
| GBP | Pound sterling | 0,89400 |
| SEK | Swedish krona | 9,7243 |
| CHF | Swiss franc | 1,4474 |
| ISK | Iceland króna | |
| NOK | Norwegian krone | 7,9990 |
| BGN | Bulgarian lev | 1,9558 |
| CZK | Czech koruna | 25,284 |
| EEK | Estonian kroon | 15,6466 |
| HUF | Hungarian forint | 261,92 |
| LTL | Lithuanian litas | 3,4528 |
| LVL | Latvian lats | 0,7081 |
| PLN | Polish zloty | 3,8730 |
| RON | Romanian leu | 4,0776 |
| TRY | Turkish lira | 2,0815 |
| AUD | Australian dollar | 1,4821 |
| CAD | Canadian dollar | 1,3801 |
| HKD | Hong Kong dollar | 10,6010 |
| NZD | New Zealand dollar | 1,9066 |
| SGD | Singapore dollar | 1,9040 |
| KRW | South Korean won | 1 548,87 |
| ZAR | South African rand | 9,9820 |
| CNY | Chinese yuan renminbi | 9,3245 |
| HRK | Croatian kuna | 7,2580 |
| IDR | Indonesian rupiah | 12 483,42 |
| MYR | Malaysian ringgit | 4,5141 |
| PHP | Philippine peso | 62,416 |
| RUB | Russian rouble | 39,9500 |
| THB | Thai baht | 44,108 |
| BRL | Brazilian real | 2,4278 |
| MXN | Mexican peso | 17,0286 |
| INR | Indian rupee | 62,0920 |

Currency

Exchange rate

USD

US dollar

1,3660

JPY

Japanese yen

123,33

DKK

Danish krone

7,4407

GBP

Pound sterling

0,89400

SEK

Swedish krona

9,7243

CHF

Swiss franc

1,4474

ISK

Iceland króna

NOK

Norwegian krone

7,9990

BGN

Bulgarian lev

1,9558

CZK

Czech koruna

25,284

EEK

Estonian kroon

15,6466

HUF

Hungarian forint

261,92

LTL

Lithuanian litas

3,4528

LVL

Latvian lats

0,7081

PLN

Polish zloty

3,8730

RON

Romanian leu

4,0776

TRY

Turkish lira

2,0815

AUD

Australian dollar

1,4821

CAD

Canadian dollar

1,3801

HKD

Hong Kong dollar

10,6010

NZD

New Zealand dollar

1,9066

SGD

Singapore dollar

1,9040

KRW

South Korean won

1 548,87

ZAR

South African rand

9,9820

CNY

Chinese yuan renminbi

9,3245

HRK

Croatian kuna

7,2580

IDR

Indonesian rupiah

12 483,42

MYR

Malaysian ringgit

4,5141

PHP

Philippine peso

62,416

RUB

Russian rouble

39,9500

THB

Thai baht

44,108

BRL

Brazilian real

2,4278

MXN

Mexican peso

17,0286

INR

Indian rupee

62,0920

---

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

---

V Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMMON COMMERCIAL POLICY

European Commission

| 19.3.2010 | EN | Official Journal of the European Union | C 70/28 |
| --- | --- | --- | --- |

19.3.2010

EN

Official Journal of the European Union

C 70/28

---

Notice of the impending expiry of certain anti-dumping measures

2010/C 70/06

1.   As provided for in Article 11(2) of Council Regulation (EC) No 1225/2009 of 30 November 2009 (1) on protection against dumped imports from countries not members of the European Community, the European Commission gives notice that, unless a review is initiated in accordance with the following procedure, the anti-dumping measures mentioned below will expire on the date mentioned in the table below.

2.   Procedure

Union producers may lodge a written request for a review. This request must contain sufficient evidence that the expiry of the measures would be likely to result in a continuation or recurrence of dumping and injury.

Should the Commission decide to review the measures concerned, importers, exporters, representatives of the exporting country and Union producers will then be provided with the opportunity to amplify, rebut or comment on the matters set out in the review request.

3.   Time limit

Union producers may submit a written request for a review on the above basis, to reach the European Commission, Directorate-General for Trade (Unit H-1), N-105 4/92, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË (2) at any time from the date of the publication of the present notice but no later than three months before the date mentioned in the table below.

4.   This notice is published in accordance with Article 11(2) of Regulation (EC) No 1225/2009.

| Product | Country(ies) of origin or exportation | Measures | Reference | Date of expiry |
| --- | --- | --- | --- | --- |
| Bicycles and certain bicycle parts | People's Republic of China
  Vietnam | Anti-dumping duty | Council Regulation (EC) No 1524/2000 (OJ L 175, 14.7.2000, p. 39) as last amended by Council Regulation (EC) No 1095/2005 (OJ L 183, 14.7.2005, p. 1) and extended to bicycles parts by Council Regulation (EC) No 71/97 (OJ L 16, 18.1.1997, p. 55) | 15.7.2010 |

Product

Country(ies) of origin or exportation

Measures

Reference

Date of expiry

Bicycles and certain bicycle parts

People's Republic of China

Vietnam

Anti-dumping duty

Council Regulation (EC) No 1524/2000 (OJ L 175, 14.7.2000, p. 39) as last amended by Council Regulation (EC) No 1095/2005 (OJ L 183, 14.7.2005, p. 1) and extended to bicycles parts by Council Regulation (EC) No 71/97 (OJ L 16, 18.1.1997, p. 55)

15.7.2010

---

(1)  OJ L 343, 22.12.2009, p. 51.

(2)  Fax +32 22956505.

---

| 19.3.2010 | EN | Official Journal of the European Union | C 70/29 |
| --- | --- | --- | --- |

19.3.2010

EN

Official Journal of the European Union

C 70/29

---

Notice of the impending expiry of certain anti-dumping measures

2010/C 70/07

1.   As provided for in Article 11(2) of Council Regulation (EC) No 1225/2009 of 30 November 2009 (1) on protection against dumped imports from countries not members of the European Community, the European Commission gives notice that, unless a review is initiated in accordance with the following procedure, the anti-dumping measures mentioned below will expire on the date mentioned in the table below.

2.   Procedure

Union producers may lodge a written request for a review. This request must contain sufficient evidence that the expiry of the measures would be likely to result in a continuation or recurrence of dumping and injury.

Should the Commission decide to review the measures concerned, importers, exporters, representatives of the exporting country and Union producers will then be provided with the opportunity to amplify, rebut or comment on the matters set out in the review request.

3.   Time limit

Union producers may submit a written request for a review on the above basis, to reach the European Commission, Directorate-General for Trade (Unit H-1), N-105 4/92, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË (2) at any time from the date of the publication of the present notice but no later than three months before the date mentioned in the table below.

4.   This notice is published in accordance with Article 11(2) of Regulation (EC) No 1225/2009.

| Product | Country(ies) of origin or exportation | Measures | Reference | Date of expiry |
| --- | --- | --- | --- | --- |
| Hand pallet trucks and their essential parts | People's Republic of China
  Thailand | Anti-dumping duty | Council Regulation (EC) No 1174/2005 (OJ L 189, 21.7.2005, p. 1) and extended to imports consigned from Thailand by Council Regulation (EC) No 499/2009 (OJ L 151, 16.6.2009, p. 1) | 22.7.2010 |

Product

Country(ies) of origin or exportation

Measures

Reference

Date of expiry

Hand pallet trucks and their essential parts

People's Republic of China

Thailand

Anti-dumping duty

Council Regulation (EC) No 1174/2005 (OJ L 189, 21.7.2005, p. 1) and extended to imports consigned from Thailand by Council Regulation (EC) No 499/2009 (OJ L 151, 16.6.2009, p. 1)

22.7.2010

---

(1)  OJ L 343, 22.12.2009, p. 51.

(2)  Fax +32 22956505.

---

PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY

European Commission

| 19.3.2010 | EN | Official Journal of the European Union | C 70/30 |
| --- | --- | --- | --- |

19.3.2010

EN

Official Journal of the European Union

C 70/30

---

Prior notification of a concentration

(Case COMP/M.5835 — Cucina/Brakes/Menigo)

Candidate case for simplified procedure

(Text with EEA relevance)

2010/C 70/08

| 1. | On 12 March 2010, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the Brakes Group (United Kingdom) (controlled by Bain Capital Investors) acquires within the meaning of Article 3(1)(b) of the EC Merger Regulation control of the whole of Menigo Food services AB (Sweden) by way of purchase of shares. |
| --- | --- |

1.

On 12 March 2010, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the Brakes Group (United Kingdom) (controlled by Bain Capital Investors) acquires within the meaning of Article 3(1)(b) of the EC Merger Regulation control of the whole of Menigo Food services AB (Sweden) by way of purchase of shares.

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






  — | for Bain Capital Investors: private equity investment firm active worldwide, |
| --- | --- | --- |

2.

The business activities of the undertakings concerned are:

—

for Bain Capital Investors: private equity investment firm active worldwide,

| — | for Brakes group: foodservice distribution in the UK, Ireland and France, |
| --- | --- |

—

for Brakes group: foodservice distribution in the UK, Ireland and France,

| — | for Menigo Foodservice AB: food service distribution in Sweden and Denmark. |
| --- | --- |

—

for Menigo Foodservice AB: food service distribution in Sweden and Denmark.

| 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.5835 — Cucina/Brakes/Menigo, 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.5835 — Cucina/Brakes/Menigo, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

J-70

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

---

(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’).

---

OTHER ACTS

European Commission

| 19.3.2010 | EN | Official Journal of the European Union | C 70/31 |
| --- | --- | --- | --- |

19.3.2010

EN

Official Journal of the European Union

C 70/31

---

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

2010/C 70/09

This publication confers the right to object to the amendment application pursuant to Article 7 of Council Regulation (EC) No 510/2006 (1). Statements of objection must reach the Commission within six months of the date of this publication.

AMENDMENT APPLICATION

COUNCIL REGULATION (EC) No 510/2006

Amendment application according to Article 9

‘AGNELLO DI SARDEGNA’

EC No: IT-PGI-0105-0097-08.04.2008

PGI ( X ) PDO ( )

1.   Heading in the product specification affected by the amendment:

| — |  | Name of product |
| --- | --- | --- |
| — | | Description of product |
| — |  | Geographical area |
| — | | Proof of origin |
| — | | Method of production |
| — |  | Link |
| — | | Labelling |
| — |  | National requirements |
| — | | Other — New details for the Inspection Body |

—



Name of product

—

Image

Description of product

—



Geographical area

—

Image

Proof of origin

—

Image

Method of production

—



Link

—

Image

Labelling

—



National requirements

—

Image

Other — New details for the Inspection Body

2.   Type of amendment(s):

| — | | Amendment to Single Document or Summary Sheet |
| --- | --- | --- |
| — |  | Amendment to Specification of registered PDO or PGI for which neither the Single Document nor Summary has been published |
| — |  | Amendment to Specification that requires no amendment to the published Single Document (Article 9(3) of Regulation (EC) No 510/2006) |
| — |  | Temporary amendment to Specification resulting from imposition of obligatory sanitary or phytosanitary measures by public authorities (Article 9(4) of Regulation (EC) No 510/2006) |

—

Image

Amendment to Single Document or Summary Sheet

—



Amendment to Specification of registered PDO or PGI for which neither the Single Document nor Summary has been published

—



Amendment to Specification that requires no amendment to the published Single Document (Article 9(3) of Regulation (EC) No 510/2006)

—



Temporary amendment to Specification resulting from imposition of obligatory sanitary or phytosanitary measures by public authorities (Article 9(4) of Regulation (EC) No 510/2006)

3.   Amendment(s):

3.1.   Description of product:

| — | The table in Article 4 of the current Specification giving the physico-chemical properties of ‘Agnello di Sardegna’ meat is deleted and three significant criteria are specified. According to a study carried out by the University of Sassari, the properties given in the current table can, in fact, also be found in other types of meat (for example, pigmeat and beef and veal) and so are not characteristic of ‘Agnello di Sardegna’ PGI, whereas the criteria specified in the new text refer to characteristics that are specific to ‘Agnello di Sardegna’. The purpose of the amendment is to provide for the possibility of checking the quality of the meat by measuring its pH values and to avoid unnecessary analyses of properties of the meat that are, in fact, not characteristic, while maintaining two properties indicative of product quality, i.e. proteins and fats. |
| --- | --- |

—

The table in Article 4 of the current Specification giving the physico-chemical properties of ‘Agnello di Sardegna’ meat is deleted and three significant criteria are specified. According to a study carried out by the University of Sassari, the properties given in the current table can, in fact, also be found in other types of meat (for example, pigmeat and beef and veal) and so are not characteristic of ‘Agnello di Sardegna’ PGI, whereas the criteria specified in the new text refer to characteristics that are specific to ‘Agnello di Sardegna’. The purpose of the amendment is to provide for the possibility of checking the quality of the meat by measuring its pH values and to avoid unnecessary analyses of properties of the meat that are, in fact, not characteristic, while maintaining two properties indicative of product quality, i.e. proteins and fats.

3.2.   Method of production:

| — | In the second paragraph of Article 3 of the current Specification, on animal housing, the word ‘are’ is replaced by the words ‘may be’ to make it clear that the animals are not necessarily housed inside at night during the winter. Mild winters in which animals do not need to be housed at night are not infrequent in Sardinia. |
| --- | --- |

—

In the second paragraph of Article 3 of the current Specification, on animal housing, the word ‘are’ is replaced by the words ‘may be’ to make it clear that the animals are not necessarily housed inside at night during the winter. Mild winters in which animals do not need to be housed at night are not infrequent in Sardinia.

| — | In the fifth paragraph of Article 3, the provisions on the system for identifying the animals has been amended to include, in addition to the manual method provided for in the current Specification, optical and electronic methods so as to allow for the range of methods for identifying livestock provided for in Community and national rules. Council Regulation (EC) No 21/2004 of 17 December 2003, incorporated into Italian law in 2005, lays down more specific and stricter rules on the identification and registration of ovine and caprine animals and amends Directive 92/102/EEC. |
| --- | --- |

—

In the fifth paragraph of Article 3, the provisions on the system for identifying the animals has been amended to include, in addition to the manual method provided for in the current Specification, optical and electronic methods so as to allow for the range of methods for identifying livestock provided for in Community and national rules. Council Regulation (EC) No 21/2004 of 17 December 2003, incorporated into Italian law in 2005, lays down more specific and stricter rules on the identification and registration of ovine and caprine animals and amends Directive 92/102/EEC.

| — | In point (a) of Article 3, a minimum weight (of 5 kg) is inserted for suckling ‘Agnello di Sardegna’, not provided for in the current Specification, which only stipulates a maximum weight. This is necessary to prevent the slaughter of animals that are too young and not perfectly formed and whose meat does not have the properties laid down in the Specification. The minimum weight of 5 kg guarantees that the lambs have reached an age (around 30 days) and therefore a degree of physical development that allows the product to meet the requirements as regards musculature, fat and colour for the ‘Agnello di Sardegna’ PGI. |
| --- | --- |

—

In point (a) of Article 3, a minimum weight (of 5 kg) is inserted for suckling ‘Agnello di Sardegna’, not provided for in the current Specification, which only stipulates a maximum weight. This is necessary to prevent the slaughter of animals that are too young and not perfectly formed and whose meat does not have the properties laid down in the Specification. The minimum weight of 5 kg guarantees that the lambs have reached an age (around 30 days) and therefore a degree of physical development that allows the product to meet the requirements as regards musculature, fat and colour for the ‘Agnello di Sardegna’ PGI.

| — | Also in Article 3, the carcass weight (cold, skinned, presented with head and pluck) of all types of lamb, i.e. suckling and light lambs and lambs for cutting, is indicated whereas it is not in the current Specification. |
| --- | --- |

—

Also in Article 3, the carcass weight (cold, skinned, presented with head and pluck) of all types of lamb, i.e. suckling and light lambs and lambs for cutting, is indicated whereas it is not in the current Specification.

| — | Again in the first paragraphs of points (a), (b) and (c) of Article 3, the word ‘purebred’ is deleted. The interpretation currently given to that ‘definition’ is that laid down in Law No 280 of 3 August 1999, which defines a pure-bred breeding animal of the ovine species as ‘an animal entered in a flock book or eligible to be entered in a flock book whose parents or grandparents are entered in a flock book of the same breed’. However, this is not attainable, since it is at variance with the reality of the Sardinian production system: the Sardinian sheep population of over three million is made up exclusively of animals of the Sarda breed. However, in Sardinia, as in the rest of Italy, only a tiny percentage of sheep are entered in flock books (between 3 and 5 % for the largest breeds), since the purpose of entering animals in a flock book is to ensure the genetic improvement of the breed. Consequently, normally only animals intended for reproduction are entered in the flock book and those intended for slaughter, such as sheep of the Sarda breed, are not. |
| --- | --- |

—

Again in the first paragraphs of points (a), (b) and (c) of Article 3, the word ‘purebred’ is deleted. The interpretation currently given to that ‘definition’ is that laid down in Law No 280 of 3 August 1999, which defines a pure-bred breeding animal of the ovine species as ‘an animal entered in a flock book or eligible to be entered in a flock book whose parents or grandparents are entered in a flock book of the same breed’. However, this is not attainable, since it is at variance with the reality of the Sardinian production system: the Sardinian sheep population of over three million is made up exclusively of animals of the Sarda breed. However, in Sardinia, as in the rest of Italy, only a tiny percentage of sheep are entered in flock books (between 3 and 5 % for the largest breeds), since the purpose of entering animals in a flock book is to ensure the genetic improvement of the breed. Consequently, normally only animals intended for reproduction are entered in the flock book and those intended for slaughter, such as sheep of the Sarda breed, are not.

| — | Finally, in points (b) and (c) of Article 3 where the feed is specified, the words ‘mother’s milk supplemented with’ are inserted to make clear the role of mother’s milk in the lamb’s diet. From the current version of the Specification it appears that ‘light’ lambs (7-10 kg) and lambs for cutting (10-13 kg) are not fed on mother’s milk but exclusively on fresh and/or dried natural feed. However, it is obvious that the lambs are fed mainly on mother’s milk during the first phase (30-35 days) while during the second phase this is complemented with natural feed and fresh or dried fodder and cereals, initially only occasionally as a supplement and then in greater quantities. Therefore, the words ‘mother’s milk supplemented with’ are inserted to make this clear and avoid any other interpretation. |
| --- | --- |

—

Finally, in points (b) and (c) of Article 3 where the feed is specified, the words ‘mother’s milk supplemented with’ are inserted to make clear the role of mother’s milk in the lamb’s diet. From the current version of the Specification it appears that ‘light’ lambs (7-10 kg) and lambs for cutting (10-13 kg) are not fed on mother’s milk but exclusively on fresh and/or dried natural feed. However, it is obvious that the lambs are fed mainly on mother’s milk during the first phase (30-35 days) while during the second phase this is complemented with natural feed and fresh or dried fodder and cereals, initially only occasionally as a supplement and then in greater quantities. Therefore, the words ‘mother’s milk supplemented with’ are inserted to make this clear and avoid any other interpretation.

3.3.   Labelling:

| — | In paragraph 3 of points (a) and (b) of Article 6, the words ‘whole or sliced’ are inserted to clarify how the meat is to be cut. |
| --- | --- |

—

In paragraph 3 of points (a) and (b) of Article 6, the words ‘whole or sliced’ are inserted to clarify how the meat is to be cut.

| — | Also in Article 6, two new cuts are inserted: ‘shoulder, haunch, loin’ and ‘assorted pack’, which are traditionally the most typical cuts in Sardinia and are added to the more industrial cuts already provided for in the Specification. Certain types of cut (such as shoulder, haunch and loin) are very characteristic of a lamb that consumers see almost by excellence as a ‘small lamb’, completely different from the considerably heavier slaughter lambs customary on other markets. |
| --- | --- |

—

Also in Article 6, two new cuts are inserted: ‘shoulder, haunch, loin’ and ‘assorted pack’, which are traditionally the most typical cuts in Sardinia and are added to the more industrial cuts already provided for in the Specification. Certain types of cut (such as shoulder, haunch and loin) are very characteristic of a lamb that consumers see almost by excellence as a ‘small lamb’, completely different from the considerably heavier slaughter lambs customary on other markets.

| — | In Article 8, the logo previously given in an annex is inserted along with a detailed description of it. |
| --- | --- |

—

In Article 8, the logo previously given in an annex is inserted along with a detailed description of it.

Since the logo has been inserted, the word ‘any’ in the third paragraph of Article 8 is replaced by the word ‘the’.

3.4.   Proof of origin:

| — | Since the Specification contained no information regarding proof of origin, it has been decided to insert a new Article 9 on this. |
| --- | --- |

—

Since the Specification contained no information regarding proof of origin, it has been decided to insert a new Article 9 on this.

| — | Finally, the references to the legislation are updated, amending Article 7 on checks by adding a reference to Regulation (EC) No 510/2006. |
| --- | --- |

—

Finally, the references to the legislation are updated, amending Article 7 on checks by adding a reference to Regulation (EC) No 510/2006.

The same amendment is made in the first paragraph of Article 4.

SINGLE DOCUMENT

COUNCIL REGULATION (EC) No 510/2006

‘AGNELLO DI SARDEGNA’

EC No: IT-PGI-0105-0097-08.04.2008

PGI ( X ) PDO ( )

1.   Name:

‘Agnello di Sardegna’

2.   Member State or third country:

Italy

3.   Description of the agricultural product or foodstuff:

3.1.   Type of product (Annex III):

| Class 1.1. | Fresh meat (and offal) |
| --- | --- |

Class 1.1.

Fresh meat (and offal)

3.2.   Description of the product to which the name in (1) applies:

On release for consumption, ‘Agnello di Sardegna’ PGI has the following appearance: white, fine-textured and firm meat that is tender when cooked and slightly veined with fat. The carcass does not have excessive muscle mass and has the right balance between bone and muscle.

Organoleptic analysis must reveal properties such as tenderness, succulence, a delicate aroma and the presence of odours typical of young, fresh meat.

The meat must also have the following physico-chemical properties:

| pH | greater than 6 |
| --- | --- |
| Proteins (on a wet basis) | between 13 and 20 % |
| Ether extract (on a wet basis) | less than 3 % |

pH

greater than 6

Proteins (on a wet basis)

between 13 and 20 %

Ether extract (on a wet basis)

less than 3 %

‘Agnello di Sardegna’ PGI meat is from lambs born and reared in Sardinia, obtained from sheep of the Sarda breed or first generation crosses with the Ile De France and Berrichon Du Cher meat breeds or other highly specialised and well-tested meat breeds.

3.3.   Raw materials (for processed products only):

—

3.4.   Feed (for products of animal origin only):

Suckling lambs (5-7 kg) must be fed exclusively with their mother’s milk (suckled) and light lambs (7-10 kg) and lambs for cutting (10-13 kg) with mother’s milk complemented with fresh or dried natural feed (fodder and cereals) and wild plants characteristic of the island of Sardinia.

3.5.   Specific steps in production that must take place in the identified geographical area:

The ‘Agnello di Sardegna’ Protected Geographical Indication is reserved exclusively for lambs born, reared and slaughtered in Sardinia.

3.6.   Specific rules concerning slicing, grating, packaging, etc.:

Cuts of ‘Agnello di Sardegna’ must be prepared and packed in the region.

No special form of packaging is proposed for the sale of whole lamb carcasses, in principle in the production area, and they may be marketed in accordance with health and hygiene rules, using suitable refrigerated transport.

‘Agnello di Sardegna’ PGI may be released for consumption as a whole carcass or in the following cuts:

| (a) | Suckling Agnello di Sardegna (5-7 kg):






  1. | whole; |
| --- | --- | --- |

(a)

Suckling Agnello di Sardegna (5-7 kg):

1.

whole;

| 2. | half-carcass (obtained by sagittal sectioning); |
| --- | --- |

2.

half-carcass (obtained by sagittal sectioning);

| 3. | forequarters and hindquarters (whole or sliced); |
| --- | --- |

3.

forequarters and hindquarters (whole or sliced);

| 4. | head and pluck; |
| --- | --- |

4.

head and pluck;

| 5. | shoulder, haunch, loin; (whole anatomical parts or sliced) |
| --- | --- |

5.

shoulder, haunch, loin; (whole anatomical parts or sliced)

| 6. | assorted pack (assortment of the anatomical parts described above). |
| --- | --- |

6.

assorted pack (assortment of the anatomical parts described above).

| (b) | Light Agnello di Sardegna (7-10 kg) and Agnello di Sardegna for cutting (10-13 kg):






  1. | whole; |
| --- | --- | --- |

(b)

Light Agnello di Sardegna (7-10 kg) and Agnello di Sardegna for cutting (10-13 kg):

1.

whole;

| 2. | half-carcass (obtained by sagittal sectioning); |
| --- | --- |

2.

half-carcass (obtained by sagittal sectioning);

| 3. | forequarters and hindquarters (whole or sliced); |
| --- | --- |

3.

forequarters and hindquarters (whole or sliced);

| 4. | head and pluck; |
| --- | --- |

4.

head and pluck;

| 5. | leg double: comprising the two whole haunches including the saddle (left and right); |
| --- | --- |

5.

leg double: comprising the two whole haunches including the saddle (left and right);

| 6. | English saddle: comprising the upper dorsal part with the final two ribs and the belly flaps; |
| --- | --- |

6.

English saddle: comprising the upper dorsal part with the final two ribs and the belly flaps;

| 7. | loin: comprising the upper fore dorsal part; |
| --- | --- |

7.

loin: comprising the upper fore dorsal part;

| 8. | rump: comprising the two filets; |
| --- | --- |

8.

rump: comprising the two filets;

| 9. | short-forequarters: comprising the shoulders, the scrag and neck and upper chops of the forepart; |
| --- | --- |

9.

short-forequarters: comprising the shoulders, the scrag and neck and upper chops of the forepart;

| 10. | outer shoulder pair: comprising the two shoulders attached to the neck; |
| --- | --- |

10.

outer shoulder pair: comprising the two shoulders attached to the neck;

| 11. | leg chump-on: including the leg, haunch, ilium and sacrum and the hind parts of the loins; |
| --- | --- |

11.

leg chump-on: including the leg, haunch, ilium and sacrum and the hind parts of the loins;

| 12. | leg chump-off: including the hind parts of the region of the ilium and sacrum and the hind parts of the loins; |
| --- | --- |

12.

leg chump-off: including the hind parts of the region of the ilium and sacrum and the hind parts of the loins;

Other cuts:

| 13. | saddle; comprising the ilium and sacrum, either with or without the final lumbar vertebra; |
| --- | --- |

13.

saddle; comprising the ilium and sacrum, either with or without the final lumbar vertebra;

| 14. | fillet: comprising the lumbar region; |
| --- | --- |

14.

fillet: comprising the lumbar region;

| 15. | rack: upper dorsal part including the first and second ribs; |
| --- | --- |

15.

rack: upper dorsal part including the first and second ribs;

| 16. | uncovered loin: fore parts comprising the first five dorsal vertebrae; |
| --- | --- |

16.

uncovered loin: fore parts comprising the first five dorsal vertebrae;

| 17. | shoulder: whole; |
| --- | --- |

17.

shoulder: whole;

| 18. | neck: comprising the neck area; |
| --- | --- |

18.

neck: comprising the neck area;

| 19. | upper chops: comprising the lower thoracic area; |
| --- | --- |

19.

upper chops: comprising the lower thoracic area;

| 20. | shoulder, haunch, loin: (whole anatomical parts or sliced) |
| --- | --- |

20.

shoulder, haunch, loin: (whole anatomical parts or sliced)

| 21. | assorted pack (assortment of the anatomical parts described above). |
| --- | --- |

21.

assorted pack (assortment of the anatomical parts described above).

3.7.   Specific rules on labelling:

Agnello di Sardegna PGI must be marketed whole and/or in portions and the packages of the whole or cut carcasses bearing the PGI or the labels affixed thereto must bear the information laid down in the relevant rules in clear and indelible lettering.

In particular, vacuum packs and other forms of packaging allowed by law must bear details of:

| (a) | ‘Agnello di Sardegna’ PGI, together with the logo; |
| --- | --- |

(a)

‘Agnello di Sardegna’ PGI, together with the logo;

| (b) | the type of meat; |
| --- | --- |

(b)

the type of meat;

| (c) | the cut. |
| --- | --- |

(c)

the cut.

The logo, consisting of a stylised lamb, shows a head and hoof. The outline is in the shape of Sardinia. The typeface used for the words ‘Agnello di Sardegna’ is Block.

The outline of the mark and of the lamb is in Pantone 350 (cyan 63 %, yellow 90 % and black 63 %); the background of the mark is in Pantone 5763 (cyan 14 %, yellow 54 % and black 50 %).

Image

It is prohibited to add to the protected geographical indication any other description, including the adjectives fine (fine), scelto (choice), selezionato (selected), superiore (superior) or genuino (genuine).

However, additional authentic place names may be used, such as historical/geographical names or the names of municipalities, undertakings, holdings and estates. with reference to the rearing, slaughtering and packing of the product, provided these are not of a laudatory nature and are not likely to mislead the consumer. Such wordings on the label must be in characters a third of the size of those used for the abbreviation PGI.

4.   Concise definition of the geographical area:

Agnello di Sardegna is reared throughout the Region of Sardinia.

5.   Link with the geographical area:

5.1.   Specificity of the geographical area:

The island of Sardinia enjoys an essentially Mediterranean climate with mild, relatively wet winters and dry, hot summers.

The influence of the sea is felt almost everywhere on the island and produces fairly mild average temperatures, with an annual average ranging from 14 to 18 °C. Rainfall is concentrated in November and December, July and August see almost none and in the rest of the year it is very erratic. Overall, rainfall is not scant (average of 500-800 mm/year).

One of the most striking features of the Sardinian climate is the wind: the maestrale, a cold north-west wind, which blows with great violence, mainly in winter but also from time to time in other seasons. At the end of autumn temperate, moist winds from the Atlantic predominate, while in early spring hot, dry winds blow from Africa (i.e. from the south).

Partly because of its sparse population and its island nature, which have favoured separation from the surrounding areas, Sardinia has preserved intact to this day many of its original natural features, many of which are peculiar to the region: the landscape is often wild, harsh and deserted and in certain places has a beauty and charm rare in the Mediterranean. This has meant that Sardinia has maintained almost undisturbed a number of ancient plant species, which have elsewhere either changed or disappeared. Most of the island, where migratory livestock herding in open pasture has traditionally been the dominant activity, is covered by pastureland, both grassland steppe and scrubland. The richest, most extensive and vigorous flora is clearly the maquis that characterises the Sardinian landscape up to around 800 m above sea level, sometimes forming isolated, picturesque thickets on the bare coastal cliffs. The maquis comprises the typical combination of evergreen shrubs, which can reach heights of 4-5 m in deeper, moister soils, where it is known as high maquis. Here the species are primarily oleasters (wild olives), mastic trees, carob trees, myrtles, laurels, junipers and rockrose trees. Oleasters often grow thickly along the shores of streams. Elsewhere the maquis is impoverished, with shrubs around 50 cm high, commonly called ‘garriga’, including sage, rosemary, heather, thyme, broom etc. Also interesting to note are thickets of dwarf palm.

5.2.   Specificity of the product:

‘Agnello di Sardegna’ PGI is distinguished above all by its small size: meat covered by the ‘Agnello di Sardegna’ PGI clearly differs from that from other, heavier, multi-purpose breeds, which often has a pronounced flavour that consumers do not always appreciate. ‘Agnello di Sardegna’ PGI, on the other hand, always has a pleasant taste because of the low levels of saturated fats in its fat cover, which are conversely rich in tastier and more easily digestible unsaturated chains (because the lambs are fed on milk on natural pastures).

The fat in the carcass is the natural complement to the meat and most of it is lost during cooking, leaving the meat perfectly unctuous and pleasant, but in particular more tender and succulent on the palate. ‘Agnello di Sardegna’ PGI is distinguished by its tender, white meat, intense aroma and outstanding digestibility and leanness.

‘Agnello di Sardegna’ PGI is an ideal food, not only because of its taste but also in terms of its nutritional value, being rich in noble proteins. This makes the meat particularly suitable for those requiring a light but high-energy diet.

‘Agnello di Sardegna’ PGI is biologically healthy and totally free of any chemical or biotic contamination. Sarda lambs, because of their young age, are not subject to forced feeding, environmental stress or hormonal treatments, being reared in the open air in a completely natural environment.

5.3.   Causal link between the geographical area and the quality or characteristics of the product (for PDO) or a specific quality, the reputation or other characteristic of the product (for PGI):

The characteristic features of Agnello di Sardegna are attributable entirely to the region of origin.

Its distinctive wild flavour is a direct result of the lambs being fed on their mother’s milk and natural feed and reared in the open air. ‘Agnello di Sardegna’ lambs are reared extensively in open housing and thus in a totally natural environment characterised by large open areas constantly exposed to the strong sunshine, the winds and other weather conditions prevailing in Sardinia.

Rearing ‘Agnello di Sardegna’ in the open air means that its feed is almost unique: suckling lambs are reared only on their mother's milk and then, when they grow, follow their mother to pasture where their diet is supplemented with natural feed, grasses and wild and aromatic plants characteristic of the island’s habitat. Over the years, the biological and reproductive cycles of the Sarda breed have adapted to their environment; the ewes therefore usually lamb in late autumn, when the first rains arrive and the vegetation starts to regrow. For these reasons, the meat is particularly prized for its organoleptic properties. In addition, the diet of mother’s milk determines not only the quantity of fat but also its quality. The fats ingested during suckling determine the composition of body fats throughout the growth period.

Furthermore, rearing in the open air guarantees that the lambs are healthy and have adequate exercise, particularly in a natural environment such as that of Sardinia with its wide open spaces and a landscape unaffected by industrial and human activities. The Sardinian landscape shares a feature that gives it an incredible degree of uniformity, its bareness, caused by a lack of cultivated trees, constantly recalling the prevalence of livestock grazing. The impression this gives is a true one: Sardinia is an island of shepherds and sheep-farming is by far the most important economic activity on the island. With 3 294 044 sheep on its 16 410 holdings distributed throughout the island, Sardinia has 40 % of the total Italian sheep population.

Thus Sardinia continues to be an island of shepherds, as it has been for centuries. Sheep-farming dates back to the prenuraghic era and remains of the first implements used to process milk have been found in nuraghi. Documents from Roman times also make frequent references to sheep-farming. The ‘Sarda’ sheep breed has become established on the island over the centuries through constant adaptation in response to experimentation by sheep-farmers. Essentially, it is the fruit of a long process of interaction between people and the land and between people, the land and animal breeds.

Farmers today provide the same care and attention to their flocks as they have for centuries and by preserving the ancient ways they have ensured that ‘Agnello di Sardegna’ today has the same unique purity and goodness as it always has.

Reference to publication of the specification:

The Ministry launched the national procedure to allow objections to the proposed amendment to the ‘Agnello di Sardegna’ Protected Geographical Indication in Official Gazette of the Italian Republic No 2 of 3 January 2008.

The full text of the product specification is available at the following site:

| | http://www.politicheagricole.it/DocumentiPubblicazioni/Search_Documenti_Elenco.htm?txtTipoDocumento=Disciplinare%20in%20esame%20UE&txtDocArgomento=Prodotti%20di%20Qualit%E0>Prodotti%20Dop,%20Igp%20e%20Stg
  or |
| --- | --- |

http://www.politicheagricole.it/DocumentiPubblicazioni/Search_Documenti_Elenco.htm?txtTipoDocumento=Disciplinare%20in%20esame%20UE&txtDocArgomento=Prodotti%20di%20Qualit%E0>Prodotti%20Dop,%20Igp%20e%20Stg

or

| | by going directly to the home page of the Ministry (http://www.politicheagricole.it) and clicking on ‘Prodotti di Qualità’ (on the left of the screen) and finally on ‘Disciplinari di Produzione all’esame dell’UE [regolamento (CE) n. 510/2006]’. |
| --- | --- |

by going directly to the home page of the Ministry (http://www.politicheagricole.it) and clicking on ‘Prodotti di Qualità’ (on the left of the screen) and finally on ‘Disciplinari di Produzione all’esame dell’UE [regolamento (CE) n. 510/2006]’.

---

(1)  OJ L 93, 31.3.2006, p. 12.

---

Corrigenda

| 19.3.2010 | EN | Official Journal of the European Union | C 70/39 |
| --- | --- | --- | --- |

19.3.2010

EN

Official Journal of the European Union

C 70/39

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Corrigendum to State aid — Latvian Republic — State aid C 39/09 (ex N 385/09) — Public financing of port infrastructure in Ventspils port — Invitation to submit comments pursuant to Article 108(2) of the TFEU

(
  Official Journal of the European Union C 62 of 13 March 2010
  )

2010/C 70/10

On page 7, third paragraph, address:

for:

| ‘European Commission |
| --- |
| Directorate-General for Transport and Energy |
| Directorate A |
| 1049 Bruxelles/Brussel |
| BELGIQUE/BELGIË |
| Fax +32 22964104’, |

‘European Commission

Directorate-General for Transport and Energy

Directorate A

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

Fax +32 22964104’,

read:

| ‘European Commission |
| --- |
| Directorate-General for Competition |
| State Aid Greffe |
| 1049 Bruxelles/Brussel |
| BELGIQUE/BELGIË |
| Fax +32 22961242’. |

‘European Commission

Directorate-General for Competition

State Aid Greffe

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

Fax +32 22961242’.

---