EN    EN EN 
EN    EN  EUROPEAN COMMISSION 
Brussels, 15.12.2009 
SEC(2009) 1684 
  
COMMISSION STAFF WORKING DOCUMENT 
SITUATION IN THE DIFFERENT SECTORS  
  
Accompanying document to the  
 
REPORT FROM THE COMMISSION 
 
26th ANNUAL REPORT ON MONITORING THE APPLICATION OF 
COMMUNITY LAW (2008) 
  
{COM(2009) 675 final}  
EN 2   EN TABLE OF CONTENTS 
1. ECONOMIC AND FINANCIAL AFFAIRS ......................................................... 17  
2. ENTERPRISE AND INDUSTRY........................................................................... 17  
2.1. General introduction................................................................................................ 17  
2.2. Automotive Industry................................................................................................ 20  
2.3. Chemicals.................................................................................................................. 23  
2.4. Pharmaceuticals ....................................................................................................... 27  
2.5. Medical devices......................................................................................................... 29  
2.6. Cosmetics .................................................................................................................. 30  
2.7. Mechanical, electrical and tel ecommunications equipment................................. 31  
2.8. Gas appliances, pressure equipment and legal metrology ................................... 33  
2.8.1.  Gas appliances........................................................................................................... 33  
2.8.2.  Pressure equipment.................................................................................................... 33  
2.8.3.  Legal metrology ......................................................................................................... 34  
2.9. Construction products ............................................................................................. 36  
2.10.  Textiles/clothing, footwear and wood..................................................................... 37  
2.11.  Toys........................................................................................................................... .3 9 
2.12.  Cultural goods .......................................................................................................... 39  
2.13.  Late payment ............................................................................................................ 39  
2.14.  Weapons.................................................................................................................... 40  
2.15.  Product liability........................................................................................................ 40  
2.16.  Defence goods ........................................................................................................... 41  
2.17.  Non-harmonised area............................................................................................... 41  
2.18.  Preventive rules of Directive 98/34/EC .................................................................. 44  
3. COMPETITION ...................................................................................................... 45  
3.1. Current position ....................................................................................................... 45  
3.1.1.  General Introduction.................................................................................................. 45  
3.1.2.  Work done in 2008 ..................................................................................................... 46  
3.2. Evaluation based on the current situation............................................................. 49  
3.3. Priorities and planned action .................................................................................. 50  
EN 3   EN 4. EMPLOYMENT, SOCIAL AFFAIRS AND EQUAL OPPORTUNITIES ....... 51  
4.1. Free movement of workers and coordinati on of social security schemes ........... 51  
4.1.1.  Current Position......................................................................................................... 51  
4.1.2.  Evaluation of the current situation ............................................................................ 56  
4.1.3.  Evaluation results - priorities for 2009/2010............................................................. 57  
4.1.4.  Summary..................................................................................................................... 60  
4.2. Labour Law .............................................................................................................. 60  
4.2.1.  Current position ......................................................................................................... 60  
4.2.2.  Evaluation based on the current situation ................................................................. 64  
4.2.3.  Translation of the evaluation into priorities and actions in 2009 ............................. 65  
4.2.4.  Summary..................................................................................................................... 66  
4.3. Health and safety at work........................................................................................ 66  
4.3.1.  Current Position......................................................................................................... 66  
4.3.2.  Evaluation of the current situation ............................................................................ 69  
4.3.3.  Evaluation results (priorities and planned actions for 2009).................................... 70  
4.3.4.  Summary..................................................................................................................... 71  
4.4. Antidiscrimination and gender equality ................................................................ 71  
4.4.1.  Current position ......................................................................................................... 71  
4.4.2.  Evaluation of the current situation ............................................................................ 74  
4.4.3.  Evaluation results (priorities and planned actions for 2009).................................... 74  
4.4.4.  Summary..................................................................................................................... 75  
5. AGRICULTURE AND RURA L DEVELOPMENT............................................. 76  
5.1. Current position ....................................................................................................... 76  
5.1.1.  General introduction.................................................................................................. 76  
5.1.2.  Report of work done in 2008...................................................................................... 77  
5.2. Evaluation ................................................................................................................. 88  
5.2.1.  General evaluation..................................................................................................... 88  
5.2.2.  Sector based remarks ................................................................................................. 88  
5.3. Evaluation results..................................................................................................... 91  
5.3.1.  Priorities and action planed 2009.............................................................................. 91  
6. ENERGY AND TRANSPORT ............................................................................... 94  
EN 4   EN 6.1. ENERGY - Internal electricity and gas market.................................................... 94  
6.1.1.  Current position ......................................................................................................... 94  
6.1.2.  Evaluation of the cu rrent position.............................................................................. 95  
6.1.3.  Evaluation results....................................................................................................... 95  
6.1.4.  Sector summary.......................................................................................................... 96  
6.2. ENERGY - Coal and Oil.......................................................................................... 96  
6.2.1.  Current position ......................................................................................................... 96  
6.2.2.  Evaluation of the cu rrent position.............................................................................. 97  
6.2.3.  Evaluation results....................................................................................................... 98  
6.2.4.  Sector summary.......................................................................................................... 98  
6.3. ENERGY - Renewable energy sources .................................................................. 98  
6.3.1.  Current position ......................................................................................................... 98  
6.3.2.  Evaluation of the cu rrent position.............................................................................. 99  
6.3.3.  Evaluation results....................................................................................................... 99  
6.3.4.  Sector summary.......................................................................................................... 99  
6.4. ENERGY - Energy Efficiency of Products .......................................................... 100  
6.4.1.  Current position ....................................................................................................... 100  
6.4.2.  Evaluation of the cu rrent position............................................................................ 101  
6.4.3.  Evaluation results..................................................................................................... 101  
6.4.4.  Sector summary........................................................................................................ 101  
6.5. ENERGY - Energy performance of buildings..................................................... 101  
6.5.1.  Current position ....................................................................................................... 101  
6.5.2.  Evaluation of the cu rrent position............................................................................ 102  
6.5.3.  Evaluation results..................................................................................................... 102  
6.5.4.  Sector summary........................................................................................................ 103  
6.6. ENERGY - Energy end-use efficiency and energy services ............................... 103  
6.6.1.  Current position ....................................................................................................... 103  
6.6.2.  Evaluation of the cu rrent position............................................................................ 104  
6.6.3.  Evaluation results..................................................................................................... 104  
6.6.4.  Sector summary........................................................................................................ 104  
6.7. ENERGY - Combined heat and power generation (cogeneration, CHP)......... 104  
EN 5   EN 6.7.1.  Current position ....................................................................................................... 104  
6.7.2.  Evaluation of the cu rrent position............................................................................ 105  
6.7.3.  Evaluation results..................................................................................................... 105  
6.7.4.  Sector summary........................................................................................................ 105  
6.8. ENERGY - Nuclear Energy .................................................................................. 106  
6.8.1.  Current position ....................................................................................................... 106  
6.8.2.  Evaluation of the cu rrent position............................................................................ 108  
6.8.3.  Evaluation results..................................................................................................... 109  
6.8.4.  Sector summary........................................................................................................ 109  
6.9. TRANSPORT - Passengers' rights....................................................................... 110  
6.9.1.  Current position ....................................................................................................... 110  
6.9.2.  Evaluation of the cu rrent position............................................................................ 111  
6.9.3.  Evaluation results..................................................................................................... 111  
6.9.4.  Sector summary........................................................................................................ 111  
6.10.  TRANSPORT - Inland Waterway Transport ..................................................... 112  
6.10.1.  Current position ....................................................................................................... 112  
6.10.2.  Evaluation of the cu rrent position............................................................................ 113  
6.10.3.  Evaluation results..................................................................................................... 113  
6.10.4.  Sector summary........................................................................................................ 114  
6.11.  TRANSPORT - Logistics and co-modality.......................................................... 114  
6.11.1.  Current situation ...................................................................................................... 114  
6.11.2.  Evaluation of the cu rrent position............................................................................ 114  
6.11.3.  Evaluation results..................................................................................................... 114  
6.11.4.  Sector summary........................................................................................................ 114  
6.12.  TRANSPORT - Inland Transport........................................................................ 115  
6.12.1.  Current position ....................................................................................................... 115  
6.12.2.  Evaluation ................................................................................................................ 116  
6.12.3.  Evaluation results..................................................................................................... 117  
6.12.4.  Summary by sector ................................................................................................... 118  
6.13.  TRANSPORT - Air Transport ............................................................................. 118  
6.13.1.  Current position ....................................................................................................... 118  
EN 6   EN 6.13.2.  Evaluation of the cu rrent position............................................................................ 125  
6.13.3.  Evaluation results..................................................................................................... 127  
6.13.4.  Summary by sector ................................................................................................... 130  
6.14.  TRANSPORT - Maritime Safety.......................................................................... 132  
6.14.1.  Current position ....................................................................................................... 132  
6.14.2.  Evaluation of the cu rrent position............................................................................ 134  
6.14.3.  Evaluation results..................................................................................................... 134  
6.14.4.  Sector summary........................................................................................................ 135  
6.15.  TRANSPORT - Maritime Security ...................................................................... 135  
6.15.1.  Current position ....................................................................................................... 135  
6.15.2.  Evaluation of the cu rrent position............................................................................ 137  
6.15.3.  Evaluation results..................................................................................................... 137  
6.15.4.  Sector summary........................................................................................................ 137  
7. ENVIRONMENT................................................................................................... 138  
7.1. Nature Conservation.............................................................................................. 138  
7.1.1.  Current position ....................................................................................................... 138  
7.1.2.  Evaluation based on the current situation ............................................................... 141  
7.1.3.  Evaluation results..................................................................................................... 142  
7.1.4.  Summary by sector ................................................................................................... 143  
7.2. Waste Management................................................................................................ 144  
7.2.1.  Current position ....................................................................................................... 144  
7.2.2.  Evaluation based on the current situation ............................................................... 149  
7.2.3.  Evaluation results..................................................................................................... 149  
7.2.4.  Sector summary........................................................................................................ 151  
7.3. Environmental Impact Assessment and Strategic Environmental Assessment151  
7.3.1.  Current position ....................................................................................................... 151  
7.3.2.  Evaluation based on the current situation ............................................................... 154  
7.3.3.  Evaluation results..................................................................................................... 154  
7.3.4.  Sector summary........................................................................................................ 155  
7.4. Protecting Water Resources.................................................................................. 156  
7.4.1.  Current position ....................................................................................................... 156  
EN 7   EN 7.4.2.  Evaluation based on the current situation ............................................................... 160  
7.4.3.  Evaluation results..................................................................................................... 161  
7.4.4.  Sector summary........................................................................................................ 163  
7.5. Air quality............................................................................................................... 164  
7.5.1.  Current position ....................................................................................................... 164  
7.5.2.  Evaluation based on the current situation ............................................................... 166  
7.5.3.  Evaluation results..................................................................................................... 167  
7.5.4.  Sector summary........................................................................................................ 168  
7.6. Climate change ....................................................................................................... 168  
7.6.1.  Current position ....................................................................................................... 168  
7.6.2.  Evaluation based on the current situation ............................................................... 173  
7.6.3.  Evaluation results..................................................................................................... 175  
7.6.4.  Sector summary........................................................................................................ 178  
7.7. Industrial installations........................................................................................... 179  
7.7.1.  Current position ....................................................................................................... 179  
7.7.2.  Evaluation based on the current situation ............................................................... 182  
7.7.3.  Evaluation results..................................................................................................... 184  
7.7.4.  Sector summary........................................................................................................ 186  
7.8. Chemicals, Pesticides, Bioc ides and Biotechnology ............................................ 186  
7.8.1.  Current position ....................................................................................................... 186  
7.8.2.  Evaluation based on the current situation ............................................................... 191  
7.8.3.  Evaluation results..................................................................................................... 192  
7.8.4.  Sector summary........................................................................................................ 194  
7.9. Governance and Environmental Liability ........................................................... 195  
7.9.1.  Current position ....................................................................................................... 195  
7.9.2.  Evaluation based on the current situation ............................................................... 196  
7.9.3.  Evaluation results..................................................................................................... 197  
7.9.4.  Sector summary........................................................................................................ 198  
8. INFORMATION SOCIETY AND MEDIA......................................................... 198  
8.1. General Overview................................................................................................... 198  
8.2. Electronic communications ................................................................................... 199  
EN 8   EN 8.2.1.  Current position ....................................................................................................... 199  
8.2.2.  Changes underway................................................................................................... 204  
8.2.3.  Evaluation based on the current situation ............................................................... 205  
8.2.4.  Evaluation: priorities and pl anned action (2009 and beyond)................................ 205  
8.3. The Audiovisual and Media .................................................................................. 205  
8.3.1.  Current position ....................................................................................................... 205  
8.3.2.  Changes Underway .................................................................................................. 207  
8.3.3.  Evaluation based on the current situation ............................................................... 207  
8.3.4.  Evaluation results: prio rities and planned action (2009 and beyond) .................... 207  
8.4. Public Sector Information ..................................................................................... 208  
8.4.1.  Current Position....................................................................................................... 208  
8.4.2.  Evaluation based on the current situation ............................................................... 209  
8.4.3.  Evaluation results..................................................................................................... 209  
8.4.4.  Sector summary........................................................................................................ 210  
8.4.5.  Measures in force..................................................................................................... 210  
8.5. Electronic Signatures............................................................................................. 210  
8.5.1.  Current Position....................................................................................................... 210  
8.5.2.  Evaluation ................................................................................................................ 211  
9. MARITIME AFFAIRS AND FISHERIES.......................................................... 211  
9.1. Current situation.................................................................................................... 211  
9.1.1.  General introduction................................................................................................ 211  
9.1.2.  Work done in 2008 ................................................................................................... 212  
9.2. Evaluation ............................................................................................................... 214  
9.3. Evaluation results................................................................................................... 215  
9.3.1.  Priorities .................................................................................................................. 215  
9.3.2.  Planned action (for 2009 and beyond)..................................................................... 215  
9.4. Measures in force ................................................................................................... 216  
10. INTERNAL MARKET AND SERVICES........................................................... 216  
10.1.  General overview.................................................................................................... 216  
10.1.1.  Efficient and effective en forcement of Community law – achievements in 2008 ..... 216  
10.1.2.  Key challenges for 2009-2010 ................................................................................. 219  
EN 9   EN 10.2.  Analysis by sector................................................................................................... 223  
10.2.1.  Freedom to provide services  and freedom of establishm ent (other than Financial 
Services) ................................................................................................................... 223  
10.2.2.  Financial Services.................................................................................................... 232  
10.2.3.  Free movement of capital (Articles 56 et seq. EC) .................................................. 243  
10.2.4.  Public procurement.................................................................................................. 245  
10.2.5.  Regulated professions (qualifications)..................................................................... 249  
10.2.6.  The business environment ........................................................................................ 255  
10.2.7.  Protection of rights .................................................................................................. 261  
11. REGIONAL POLICY ........................................................................................... 264  
11.1.  Current situation.................................................................................................... 264  
11.1.1.  General introduction................................................................................................ 264  
11.1.2.  Report of work done in 2008.................................................................................... 265  
11.2.  Evaluation based on the current situation........................................................... 267  
11.2.1.  Satisfactory or problem atic nature of the current situation..................................... 267  
11.2.2.  Importance of the impact of the identified problems on th e objectives of the acquis
............................................................................................................................... ... 268  
11.2.3.  Responsibility for the problems and their correction .............................................. 268  
11.2.4.  Nature, urgency and scale of th e corrective action required................................... 268  
11.3.  Evaluation results................................................................................................... 269  
11.3.1.  Priorities .................................................................................................................. 269  
11.3.2.  Planned action (2009 and beyond) .......................................................................... 269  
12. TAXATION AND CUSTOMS SERVICES......................................................... 271  
12.1.  Situation in the sector of CUSTOMS ................................................................... 271  
12.1.1.  Current position ....................................................................................................... 271  
12.1.2.  Evaluation based on the current situation ............................................................... 272  
12.1.3.  Evaluation results..................................................................................................... 273  
12.2.  Situation in the sector of INDIRECT TAXATION ............................................ 274  
12.2.1.  Current position ....................................................................................................... 274  
12.2.2.  Evaluation based on the current situation ............................................................... 278  
12.2.3.  Evaluation results..................................................................................................... 279  
12.3.  Situation in the sector of DIRECT TAXATION................................................. 280  
EN 10   EN 12.3.1.  Current position ....................................................................................................... 280  
12.3.2.  Evaluation based on current situation ..................................................................... 282  
12.3.3.  Evaluation results..................................................................................................... 283  
13. EDUCATION AND CULTURE ........................................................................... 283  
13.1.  Current position ..................................................................................................... 283  
13.1.1.  General introduction................................................................................................ 283  
13.2.  Report of work done in 2008................................................................................. 285  
13.3.  Evaluation results................................................................................................... 286  
13.3.1.  Priorities .................................................................................................................. 286  
13.3.2.  Planned action ......................................................................................................... 287  
14. HEALTH AND CONSUMERS ............................................................................ 287  
14.1.  Introduction............................................................................................................ 287  
14.1.1.  Prevention ................................................................................................................ 288  
14.1.2.  Audits and Inspections ............................................................................................. 290  
14.1.3.  Prioritisation of Infringements................................................................................. 290  
14.1.4.  Future Challenges.................................................................................................... 291  
14.2.  Public Health .......................................................................................................... 291  
14.2.1.  General Introduction................................................................................................ 291  
14.2.2.  Report of Work Done in 2008 .................................................................................. 292  
14.2.3.  Evaluation, Priorities & Perspectives...................................................................... 293  
14.2.4.  Summary of Sector ................................................................................................... 294  
14.3.  Consumer Affairs................................................................................................... 294  
14.3.1.  General Introduction................................................................................................ 294  
14.3.2.  Report of Work Done in 2008 .................................................................................. 294  
14.3.3.  Evaluation, Priorities & Perspectives...................................................................... 302  
14.3.4.  Summary of Sector ................................................................................................... 302  
14.4.  Food Safety ............................................................................................................. 302  
14.4.1.  General Introduction................................................................................................ 302  
14.4.2.  Work done in 2008 ................................................................................................... 303  
14.4.3.  Food Hygiene........................................................................................................... 305  
14.4.4.  Food Labelling......................................................................................................... 307  
EN 11   EN 14.4.5.  Nutrition labelling.................................................................................................... 308  
14.4.6.  Nutrition and Health Claims.................................................................................... 309  
14.4.7.  Dietetic foodstuffs..................................................................................................... 310  
14.4.8.  Food Supplements .................................................................................................... 311  
14.4.9.  Voluntary addition of vitamins and minera ls and of certain other substances to 
foodstuffs .................................................................................................................. 312  
14.4.10.  GMO Food and Feed ............................................................................................... 312  
14.4.11.  Novel Foods ............................................................................................................. 313  
14.4.12.  Food additives.......................................................................................................... 315  
14.4.13.  Food enzymes........................................................................................................... 315  
14.4.14.  Food Flavourings..................................................................................................... 316  
14.4.15.  Food Contact Materials ........................................................................................... 317  
14.4.16.  Plant Protection Products– Pesticide Residues....................................................... 318  
14.4.17.  Contaminants in food ............................................................................................... 320  
14.4.18.  Animal Health - Zoonoses........................................................................................ 323  
14.4.19.  Transmissible Spongiform Encephalopathies.......................................................... 324  
14.4.20.  Animal Health – Non Zoonotic Diseases ................................................................. 325  
14.4.21.  Veterinary Import Controls – Live animals and their products............................... 328  
14.4.22.  Animal feed and animal by-products ....................................................................... 329  
14.4.23.  Plant Health ............................................................................................................. 338  
14.4.24.  Seeds and Plant Propagating Material.................................................................... 339  
14.4.25.  Plant Variety Rights ................................................................................................. 341  
15. JUSTICE, FREEDOM AND SECURITY ........................................................... 341  
15.1.  Immigration and integration................................................................................. 341  
15.1.1.  Current position: gene ral introduction.................................................................... 341  
15.1.2.  Current position: Report on work done in 2008 ...................................................... 342  
15.1.3.  Evaluation of work done in 2008 ............................................................................. 343  
15.1.4.  Evaluation results: priorities ................................................................................... 344  
15.1.5.  Evaluation results: planned action (2009 and beyond) ........................................... 344  
15.1.6.  Summary................................................................................................................... 345  
15.2.  Asylum..................................................................................................................... 345  
EN 12   EN 15.2.1.  Current position – report on work done in 2008 ..................................................... 345  
15.2.2.  Legislative changes underway (2009-2010) ............................................................ 346  
15.2.3.  Evaluation based on the current situation ............................................................... 347  
15.2.4.  Evaluation results: prioriti es and planned action ................................................... 347  
15.2.5.  Summary................................................................................................................... 348  
15.3.  European visa policy.............................................................................................. 348  
15.3.1.  Current position: gene ral introduction.................................................................... 348  
15.3.2.  Report on work done in 2008................................................................................... 348  
15.3.3.  Evaluation based on the current situation ............................................................... 349  
15.3.4.  Evaluation results: prio rities and planned action (2009 and beyond) .................... 349  
15.4.  Document Security - European passport and residence permits....................... 349  
15.4.1.  Current position – report on work done in 2008 ..................................................... 349  
15.4.2.  Evaluation based on the current situation ............................................................... 349  
15.4.3.  Evaluation results: prio rities and planned action (2009 and beyond) .................... 350  
15.5.  Border management and return policy................................................................ 350  
15.5.1.  Current position: gene ral introduction.................................................................... 350  
15.5.2.  Current position: report on work done in 2008....................................................... 350  
15.5.3.  Evaluation based on the current situation ............................................................... 351  
15.5.4.  Evaluation results: priorities ................................................................................... 351  
15.5.5.  Evaluation results: planned action (2009 and beyond) ........................................... 352  
15.6.  Free movement of persons..................................................................................... 352  
15.6.1.  Current position: gene ral introduction.................................................................... 352  
15.6.2.  Current position – report on work done in 2008 ..................................................... 353  
15.6.3.  Evaluation based on the current situation ............................................................... 354  
15.6.4.  Evaluation results: priorities ................................................................................... 355  
15.6.5.  Evaluation results: planned action (2009 and beyond) ........................................... 355  
15.6.6.  Summary................................................................................................................... 355  
15.7.  Citizenship .............................................................................................................. 356  
15.7.1.  Current position: gene ral introduction.................................................................... 356  
15.7.2.  Current position – report on work done in 2008 ..................................................... 356  
15.7.3.  Evaluation based on the current situation ............................................................... 357  
EN 13   EN 15.7.4.  Evaluation results: priorities ................................................................................... 357  
15.7.5.  Evaluation results: planned action (2009 and beyond) ........................................... 358  
15.7.6.  Summary................................................................................................................... 358  
15.8.  Fundamental rights................................................................................................ 358  
15.8.1.  Current position: gene ral introduction.................................................................... 358  
15.8.2.  Current position – report on work done in 2008 ..................................................... 359  
15.9.  Protection of personal data ................................................................................... 359  
15.9.1.  Current position – report on work done in 2008 ..................................................... 359  
15.9.2.  Evaluation based on the current situation ............................................................... 359  
15.9.3.  Evaluation results: prio rities and planned action (2009 and beyond) .................... 360  
15.10.  Judicial cooperation in civil matters .................................................................... 360  
15.10.1.  Current position – report on work done in 2008 ..................................................... 360  
15.10.2.  Evaluation based on the current situation ............................................................... 361  
15.10.3.  Evaluation results: priorities ................................................................................... 362  
15.10.4.  Evaluation results: planned action (2009 and beyond) ........................................... 363  
15.10.5.  Summary................................................................................................................... 364  
15.11.  Security.................................................................................................................... 365  
15.12.  List of legal measures in force............................................................................... 365  
16. TRADE.................................................................................................................... 366  
17. ENLARGEMENT.................................................................................................. 366  
17.1.  Current position – Relevant legal instru ments and related work and reporting 
on 2008..................................................................................................................... 366  
17.1.1.  General introduction................................................................................................ 366  
17.1.2.  Report of work done in 2008.................................................................................... 367  
17.2.  Evaluation ............................................................................................................... 367  
17.3.  Evaluation results................................................................................................... 368  
17.4.  Summary................................................................................................................. 368  
17.5.  Legal measures in force ......................................................................................... 368  
18. EUROSTAT............................................................................................................ 368  
18.1.  Current position- Report on 2008......................................................................... 368  
18.2.  Legislative changes underway (2008-2012).......................................................... 368  
EN 14   EN 18.3.  Evaluation ............................................................................................................... 369  
18.4.  Priorities.................................................................................................................. 369  
18.5.  Planned action ........................................................................................................ 369  
19. PERSONNEL AND ADMINISTRATION .......................................................... 370  
19.1.  Current position – Most important legal instruments and related work and 
reporting on 2008 ................................................................................................... 370  
19.1.1.  Existing measures in force ....................................................................................... 370  
19.1.2.  Report of work done in 2008.................................................................................... 370  
19.2.  Evaluation based on the current situation........................................................... 371  
20. BUDGET................................................................................................................. 371  
20.1.  Current position – relevant legal instru ments and related work and reporting 
on 2008..................................................................................................................... 371  
20.1.1.  Existing measures in force ....................................................................................... 371  
20.1.2.  Report of work done in 2008.................................................................................... 371  
20.1.3.  Volume of infringements work and petitions............................................................ 372  
20.2.  Evaluation ............................................................................................................... 373  
Annex I - List of measures in force and oth er relevant instruments re ferred to in the text 
of the document ...................................................................................................... 374  
I. ENTERPRISE AND INDUSTRY......................................................................... 374  
I.1. Pharmaceuticals ..................................................................................................... 374  
II. EMPLOYMENT, SOCIAL AFFAIRS AND EQUAL OPPORTUNITIES ..... 374  
II.1. Free movement of workers and coordinati on of social security schemes ......... 374  
II.1.1.  Free movement of workers....................................................................................... 374  
II.1.2  Social security .......................................................................................................... 375  
II.2. Labour Law ............................................................................................................ 375  
II.2.1.  Working conditions .................................................................................................. 375  
II.2.2.  Information and consultation of workers................................................................. 376  
II.2.3.  Protection of workers............................................................................................... 377  
II.2.4.  Implementation and application reports.................................................................. 378  
II.3. Health and safety at work...................................................................................... 378  
II.4. Gender equality and anti-discrimination............................................................. 382  
II.4.1.  Gender equality........................................................................................................ 382  
EN 15   EN II.4.2.  Anti-discrimination .................................................................................................. 383  
III. ENERGY AND TRANSPORT ............................................................................. 383  
III.1.  ENERGY................................................................................................................. 383  
III.2.  TRANSPORT ......................................................................................................... 384  
IV. INTERNAL MARKET AND SERVICES........................................................... 388  
IV.1.  Existing and in force acquis .................................................................................. 388  
IV.2.  Recently adopted measures ................................................................................... 388  
IV.3.  New measures already proposed and due to be adopted.................................... 388  
V. TAXATION AND CUSTOMS UNION ............................................................... 390  
V.1. CUSTOMS.............................................................................................................. 390  
V.2. INDIRECT TAXATION ....................................................................................... 391  
V.3. DIRECT TAXATION............................................................................................ 392  
VI. HEALTH AND CONSUMERS ............................................................................ 393  
VI.1.  Public Health .......................................................................................................... 393  
VI.2.  Consumers .............................................................................................................. 394  
VI.3.  Food Safety ............................................................................................................. 396  
VI.3.1.  General..................................................................................................................... 396  
VI.3.2.  Veterinary................................................................................................................. 396  
VI.3.3.  Food Safety Rules..................................................................................................... 401  
VI.3.4.  Feed.......................................................................................................................... 4 04 
VI.3.5.  Phytosanitary ........................................................................................................... 404  
VII. JUSTICE, FREEDOM AND SECURITY ........................................................... 410  
VII.1.  Treaty provisions.................................................................................................... 410  
VII.1.1.  Fundamental rights .................................................................................................. 410  
VII.1.2.  Citizenship................................................................................................................ 410  
VII.1.3.  Protection of personal data...................................................................................... 410  
VII.1.4.  Judicial cooperation in civil matters........................................................................ 410  
VII.2.  Regulations.............................................................................................................. 410  
VII.2.1.  Asylum...................................................................................................................... 410  
VII.2.2.  Visas ......................................................................................................................... 4 11 
VII.2.3.  Border management and return policy .................................................................... 412  
EN 16   EN VII.2.4.  Protection of personal data...................................................................................... 413  
VII.2.5.  Judicial cooperation in civil matters........................................................................ 413  
VII.3.  Directives................................................................................................................. 415  
VII.3.1.  Immigration and integration.................................................................................... 415  
VII.3.2.  Asylum...................................................................................................................... 415  
VII.3.3.  Border management and return policy .................................................................... 416  
VII.3.4.  Free movement of persons ....................................................................................... 416  
VII.3.5.  Citizenship................................................................................................................ 416  
VII.3.6.  Protection of personal data...................................................................................... 417  
VII.3.7.  Judicial cooperation in civil matters........................................................................ 417  
VII.3.8.  Security..................................................................................................................... 41 7 
EN 17   EN SITUATION IN THE DIFFERENT SECTORS 
1. ECONOMIC  AND  FINANCIAL  AFFAIRS 
In 2008, there has not been any formal infringeme nt procedure initiated by the Commission in 
the field of Economic and Financial Affairs  
However, the Commission services received two fo rmal complaints from staff representatives 
of the Bank of Greece on the occasion of the inclus ion of the Central Bank's pension fund in a 
new State-run pension fund. This measure ha s been foreseen by the provisions of Law 
3655/2008 on 'Administrative and organisational refo rm of the social s ecurity system and 
other security provisions'.  
The plaintiffs claimed, inter alia, that the respective provision would constitute a violation to 
the prohibition on monetary financing and the Central Bank's independence as laid down in 
Articles 101 and 108 of the EC Treaty.  
In order to prepare a sound assessment of the compliance of  the law with the Treaty, it was 
deemed necessary to receive information on the financial situation of the Greek Pension Fund, 
including a validation by an  independent auditor.  
The Commission services officially asked ther efore the Greek authorities to provide the 
information needed for the assessment. After examination of the requested information, the 
Commission sent out a letter in 2009 confirming the Commission's decision of closing the 
case since no new elements on the subject of the non observance of Community Law were 
provided to the Commission. In pa rticular, after an in-depth analysis of the information 
received, the Commission reached the conclusion that the respective law did not violate the 
Treaty rules on Central Bank independence a nd the prohibition on monetary financing. 
2. ENTERPRISE  AND  INDUSTRY 
2.1. General introduction 
Responsibility for ensuring the free movement of goods within the Single Market is entrusted 
to the Commission services in charge of "Ent erprise and Industry" sector. These services 
manage a large part of the Community acquis consisting of Articles 28 to 30 EC in the non-
harmonised area and a large quantity of subo rdinate Community legislation (regulations, 
directives and decisions) in the harmonised ar ea. The acquis of the European Union in the 
"Enterprise and Industry" sect or can be found on the web at  the following address:  
http://europa_eu.staging.entr.cec.eu.in t/enterprise/newapproach/pdf/pink_book_2007.pdf   
As ‘harmonising’ rules are adopted in more a nd more sectors of the Single Market, the non-
harmonised area is gradually shrinking. But some 25% of the market is still not subject to 
harmonised rules and, here, Articles 28-30 EC ensure the easy cross-border exchange of 
goods. 
EN 18   EN Generally speaking, the Community acquis govern ing the free movement of goods is stable 
and effective, although the highly te chnical nature of much of th e legislation means that there 
is always considerable activity ad apting it to technol ogical progress. 
Significant changes are being made to th e acquis managed by the Commission in the 
"Enterprise and Industry" sector; for example in  
o the automotive sector  (with the forthcoming recasting of the framework legislation for 
type-approvals and a shift to regulations ra ther than directives in EC implementing 
legislation),  
o the chemicals sector  (with the application from 1 June 2008 of most of the REACH 
Regulation and the adoption at the end of  2008 of a new Regula tion on classification, 
labelling and packaging of substances and mixtures ),  
o pharmaceuticals  (with the adoption by the Commission on 10 December 2008 of a 
package consisting of a Communication on the future single market in pharmaceuticals, 
and 3 legislative proposals on information to patients, counterfeit medicines and 
pharmacovigilance). 
The Commission's legislative activity in the "E nterprise and Industry" sector is fully in 
accordance with the “Better Regul ation” plan. In this sense, the Commission considers the 
simplification and codification of  existing legislation as impor tant tools in achieving better 
implementation of EU law. Six proposals, on to y safety, on pharmaceuticals(2), vehicle safety 
features, construction products and measurin g instruments, were delivered in the 2008 
simplification programme and the Commission is presenting a further four proposals for 
adoption in 2009 (on agricu ltural and forestry tractors, fert ilizers, textiles and wheels for 
motor vehicles). The proposal to  recast the late payment dir ective was adopted on 8 April 
2009 and is part of the Small Business Act adopted in June 2008 which for the first time puts into place a comprehensive SME policy framework for the EU and its Member States. 
In a move to strengthen the Single Market , in 2008 the Community legislator adopted a 
“goods package” of measures, including a Regulat ion on procedural aspects of the mutual 
recognition principle (laying down procedures relating to the a pplication of cer tain national 
technical rules to products lawfu lly marketed in another Member State). This new instrument 
addresses some of the issues surrounding mutual recognition of products and thereby improves the smooth functioning of the internal market for goods.  
The goods package also contains instruments designed to boost production and trade in goods 
in the harmonised area by providing a clear and consistent horizontal framework to simplify 
the application of EU harmonising legislation.  At the same time, it strengthens rules on 
market surveillance to protect consumers fr om unsafe products and shelter business from 
unfair competition by operators not complying with the law. The implementation of this 
package will make it easier for companies, partic ularly SMEs, to sell their products in the EU 
whilst increasing consumer protection. The package will also reduce the risk for enterprises that their products do not gain access to the ma rket of the Member State of destination. 
Special efforts are being made to guarantee their timely and correct application. 
The Commission also prepared an internal market directive to simplify the terms and 
conditions governing the intra-Community transfer  of defence-related products. This directive 
extends the coverage of the current acquis to facilitate the circulation of defence goods within 
the EU. During 2008, the Council and the Parliament paved the way for first reading 
EN 19   EN agreement which came on 16 December. The Dir ective, which has been  published in June 
20091, has a two-year transposition period. 
The Commission also provides gu idance and other assistance to  help Member States to 
transpose and implement new directives on ti me. Assistance is given using a variety of 
different tools (e.g. interpretative documents, bilateral meetings and Committee meetings). 
A very valuable tool for dealing in advance  with possible technical  barriers to the free 
movement of goods in the non-harmonised area is Directive 98/34/EC, which requires the 27 
Member States, the EFTA countries and Turkey  to notify all national technical regulations 
concerning products and Information Society Services at the draft stage . The steady high 
number of notifications ( 634 in 2008) and reactions from  the Commission (199) and the 
Member States (184) underlines the importance of Directive 98/34/EC  as a tool for the 
prevention of barriers to intra-Community trad e - and indeed for bett er regulation since it 
provides a forum for making suggest ions to improve the quality of  national legi slation. Its ex 
ante operation means that time-consuming and sometimes controversial infringement 
procedures can be avoided. 
In addition, the Commission monitors the co rrect application of these rules and opens 
infringement procedures against Member St ates if necessary. In  2008, the Commission 
registered 55 complaints and 3 own- initiative cases in this sector.  
But since the Commission services attach great  importance to resolving problems coming to 
its attention as quickly as possible, they also support the use of methods other than 
infringement proceedings, like the EU Pilot pr oject designed to clarify and solve problems 
with the application of EU law in coopera tion with the Member States involved. The 
Commission services also organise “package meetings” and bilateral meetings with the 
Member States to provide advice  to national authorities to help  ensure the correct application 
of the EU law.  
In the framework of infringement proceedi ngs, non-communication cases and article 228 EC 
cases are dealt with as quickly as possible, gi ven their automatic priority status under the 
September Communication2. In accordance with the other cr iteria set out in the September 
Communication, since 2008 priority status in this sector has been given to the following 
cases.  
Non-harmonised area 
• The failure by a MS to notify national techni cal rules in draft unde r Directive 98/34/EC. 
Such failure renders the rules liab le to be declared null and void. 
• Breaches of Articles 28-30 EC raising horiz ontal questions about the functioning of the 
market. 
Harmonised area 
                                                 
1 Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying terms and conditions of transfer s of defence-related products 
within the Community (OJ L 146 of 10 June 2009) 
2 A Europe of Results – Applying Community Law (COM(2007) 502 of 5.9.2007 
EN 20   EN Breaches of key provisions or stra tegic objectives of directives, in particular new legislation 
which nowadays is adopted sole ly in response to a demonstr able need to correct/enhance 
market performance by regulator y action - its enforcement shoul d be commensurate with the 
risk of failing to achieve the desired effect. 
The considerable share of the Community ac quis dealt with by the Commission services 
responsible for the "Enterprise and Industry" sect or covers a wide vari ety of product domains, 
in relation to each of which are set out belo w a description of the current state of the 
legislation in force, details of any significant changes under way or planned and a general 
evaluation of the effectiveness of regulatory framework in the domain concerned. Information 
is also provided about infringement pro ceedings pursued in each product domain.  
2.2. Automotive Industry 
Current position The harmonized legislation in the automotive sector
 covers three categori es of vehicles: (i) 
motor vehicles and their trailers ; (ii) two and three-wheel motor vehicles; and (iii) agricultural 
or forestry tractors. The legislation, wh ich lays down common requirements designed to 
protect environmental and safety objectives, is based on a system of  whole-vehicle type 
approval which  allows manufacturers to have a vehicl e "type" approved in one Member State 
and then to market the vehi cle in all other Member St ates without further tests . It deals with a 
multitude of detailed technical specifications for different vehicle systems and components 
which are frequently modified to adapt th em to technical progress while reducing the 
regulatory burden on industry.  
In relation to type-approval of new vehicles , there are three main framework Directives: 
• Directive 2007/46/EC establishi ng a framework for the approval of motor vehicles and 
their trailers, and systems, components and separate technical units intended for such 
vehicles; 
• Directive 2002/24/EC relating to  the type-approval of two-or  three-wheel motor vehicles; 
and  
• Directive 2003/37/EC relating to th e type-approval of ag ricultural or forestry tractors, their 
trailers and interchangeable towed machinery, together with their sy stems, components and 
separate technical units.  
In addition to the framework Directives, separate regulatory acts lay down harmonized 
technical requirements for the ty pe-approval of individual pa rts and characteristics of a 
vehicle. Hitherto, these acts have generally been adopted as Directives. More recently, 
however, a change in the regulatory approach  has been introduced which results in the 
adoption, through the co-decision pr ocess, of a main act in th e form of a Regulation laying 
down fundamental provisions while the technical specifications and admi nistrative provisions 
for type-approval are contained in implemen ting measures adopted in accordance with 
comitology procedures (the "split-level" approach ). Due to the global nature of the automotive 
industry, many of these technical requirements are also harmonized at international level 
through UNECE Regulations.3 
                                                 
3 UNECE Regulations are harmonized technical regulatio ns regarding new motor vehicles and motor 
vehicle equipment that are adopted pursuant to the 1958 Agreement under the auspices of the United 
EN 21   EN Twenty-nine infringement cases were ope ned during 2008 in relation to Community 
legislation in this sector. The vast majority of  these cases (25) were due to delays in the 
communication of national measur es transposing EC Directives  (which generally contained 
technical updates of the acquis). The Member St ates most concerned by these cases were the 
Czech Republic (5 proceedings) and Portugal (4).  Twenty-four of these infringement cases 
were closed after national implementation measures were communicated by the Member 
States concerned. In most cases, the communica tion of the national measures occurred before 
the Commission issued a Reasoned Opinion.  
During 2008 the Commission continued to d eal with a steady number of questions, 
complaints and queries in relation to legislation in the automotive sector. Complaints or requests for information were also  periodically sent vi a the petition procedur e. Most inquiries 
were submitted by individuals or SMEs. The areas dealt with included matters such as vehicle exhaust pollutant emissions and noise levels, accessibility requirements applicable to bus 
interior arrangement and administrative form alities on imports of vehicles from third 
countries. In many cases, the issues raised could be dealt with by giving guidance on the 
Commission's interpretation of the relevant EC legislation. Where the co mplaint turned out to 
be unsubstantiated, the matter was closed and the reasons for doing so explained.  
Only four complaints were registered in 2008. One was closed as no breach of Community 
law could be identified. A second case was closed after a change in the national legislation at 
issue. The remaining two complaints, which arise out of the same facts on a question of proper application by the aut horities of EC legislation, are still under examination. 
During 2008 the Commission also replied to the European Ombudsman in relation to a 
request for an opinion on the interpretati on of Directive 2001/85/EC  (type-approval of 
buses/coaches) insofar as it affected  the rights of access by passengers.  
Changes underway 
Although a well recognized legal framework ex ists, the Community ac quis relating to the 
automotive sector is in constant  evolution. In this regard, the direction of policy-making in the 
sector has been discussed by a High Level Group that brought toge ther the main stakeholders 
(Member States, industry, NGOs and MEPs) and the recommendations were set out in the CARS 21 Communication published in February 2007.
4 Through the CARS 21 process, the 
Commission has developed a medium to long- term, coordinated and predictable policy 
framework for the automotive i ndustry based on continuous dialogue  and consultation with all 
main stakeholders. In 2008, the Commission launched a mid-term review of CARS 21, 
seeking views from stakeholders on the auto motive regulatory framework. In October 2008, a 
CARS 21 follow-up Conference was held and th e conclusions have been outlined in the 
CARS 21 mid-term review report.5  
                                                                                                                                                         
Nations Economic Commission for Europe (www.unece.org). As a contracting party to the 1958 
UNECE Agreement, the European Community  can decide to apply a Regulation.  
4 Communication from the Commission to the European Parliament and to the Council, "A Competitive 
Automotive Regulatory Framework for the 21st Century", COM (2007) final, 7 February 2007. 
5 http://ec.europa.eu/enterprise/automotive/pagesb ackground/competitivene ss/cars21_mtr_report.pdf  
EN 22   EN In May 2008, and as part of the efforts to simplify legislation on safety, the Commission 
adopted the draft Regulation on type approval re quirements for the general safety of motor 
vehicles.6  
Significant progress also occurr ed in relation to updating a nd completing legislation on 
vehicle emissions. In July 2008, the Commi ssion adopted the implementing Regulation on 
emissions from light passenger and commercia l vehicles (Euro 5 and 6) and on access to 
vehicle repair and maintenance information. A political agreement was reached in 2008 with 
the Council and the European Parliament on a draft Regulation on emissions from heavy-duty 
vehicles (Euro VI). 
Various steps to implement, simplify and update the technical legislati on in the sector were 
taken during 2008. This culminated  in the adoption in early 2009 of Regulations on the type-
approval of motor vehicles with regard to pedestrian protection7 and on type-approval of 
hydrogen-powered vehicles8. 
A significant proportion of the work in the automotive sector in 2009 and beyond will focus 
on recasting the legislative framework (a nd its subsequent completion) and the 
implementation of new technical legislation. In particular, the regulator y framework for type-
approval legislation in relation to  two and three-wheeled vehicles and tractors is expected to 
be revised. In both cases, input from interest ed parties was sought via a public consultation 
launched in 2008. The Commission is also work ing on various propos als, in close co-
ordination with Member States , to complete the framework Directive 2007/46/EC for the 
type-approval of motor ve hicles and trailers.  
Evaluation 
The situation regarding the appl ication of the Community acquis in the automotive sector is 
acceptable. Nevertheless, the constant evolution of  the technical legislation means that it is 
important to maintain close attention to timel y transposition and effective enforcement to 
ensure that the objectives remain satisfied.  
The frequent adaptation of technical legislatio n in this sector also means that the use of 
correlation tables is particularly helpful. It should be emphasized that the close cooperation 
between the Commission and Member  States in the preparation of  legislative measures means 
that significant problems regarding conformity or incorrect applicatio n are a relatively rare 
occurrence. Indeed, in many cases, due to the technical nature of th e legislation, Member 
States frequently transpose technical amendm ents by reference to the relevant Community 
acts. This was a factor when deciding to prepar e new legislation in the form of Regulations 
instead of Directives. 
Other than vehicle re-registrati on (which falls within the scope of Article 28-30 EC), there are 
relatively few complaints in this sector. In many instances, it proves unnecessary to open formal proceedings as the facts do not demonstr ate non-conformity or in correct application by 
the Member States of the harmonized legislation. Instead, infringement proceedings are much 
                                                
 
6 {SEC (2008) 1908} {SEC (2008) 1909} /* COM (2008) 316 final – COD 2008/0100*/ 23.5.2008. 
7 Regulation (EC) No.78/2009 of the European Parliament and of the Council of 14 January 2009 on the 
type-approval of motor vehicles with regard to the protection of pedestrians and other vulnerable road users (OJ L 35, 4.2.2009, p.1). 
8 Regulation (EC) No.79/2009 of the European Parliament and of the Council of 14 January 2009 on 
type-approval of hydrogen-powered vehicles (OJ L 35, 4.2.2009, p.32).  
EN 23   EN more likely to occur as a result of the absen ce of notification of complete transposition of 
obligations contained in the Directive.  
The absence of full transposition of Directives is  likely to become less important in the future 
when preference is be given to  Regulations over Directives. This strategy should increase 
overall efficiency in this area by lowering the overall number of infringement cases based on 
non- or late communication by Member States of transposition measures. Nevertheless, the 
complexity of the legislation in  this sector and the constant development of new technologies 
(and the corresponding adaptation of legislation) means that probl ems of interpretation are an 
ever-present risk. In addition, Member States might take measures which risk compromising 
the harmonized approach in Community acts. Consequently, the Commission maintains close 
cooperation with the national auth orities responsible for type-a pproval, meeting regularly (in 
general twice a year) to  discuss questions regarding the un derstanding and interpretation of 
directives in the automotive sector as well as  the equivalent UN/ECE Regulations to ensure 
their common and harmonised application. These meetings are known by the acronym 
"TAAM" (type approval authorities meeting).  
The main priority in the au tomotive sector continues to be the proper implementation, 
management and enforcement of legislative propos als. In particular, there has to be long-term 
regulatory clarity as well as an accurate quantification of the co sts and benefits of legislative 
activity. Given the impact of the current ec onomic crisis, the Commission will weigh up the 
costs and benefits of any new legislative ini tiative and seek, as far as possible, to avoid 
creating new economic burdens. 
The Commission is taking steps to  assist Member States in th e proper interpretation of EC 
legislation. A draft guidance document on the c oncept of individual approval of vehicles 
(which before framework Directive 2007/46/EC was primarily governed by national law) is 
being discussed with Member St ates. In addition, in view of the fact that several Member 
States have announced their intention to provide  financial incentives for motor vehicles based 
on environmental performance, the Commission is currently preparing guidelines with a view 
to providing practical indicati ons for Member States where these incentives are based on the 
harmonized pollutant emission limit values.  
2.3. Chemicals 
2.3.1 REACH 
Current position 
In 2008, there were significant de velopments in the chemicals se ctor. Many of the substantive 
provisions of the REACH Regul ation (1907/2006) – the corn erstone of the EU’s new 
chemicals legislation – applie d from 1 June 2008. In additio n, a new Regulation (1272/2008) 
on classification, labellin g and packaging of substances a nd mixtures (“the CLP Regulation”) 
was adopted at the very end of 2008, designed to ensure that substances and mixtures deemed 
‘hazardous’ are properly identified and clearly indicated before products are placed on the 
market. 
REACH deals with the registrati on, evaluation, authorisation and restriction of chemical 
substances. Registration of chemicals with the European Chemicals Agency (“ECHA”) is 
designed to obtain information on manufactured and imported subs tances to establish whether 
industry is taking adequate measures to ensure  their safe use. Subsequent evaluation by 
ECHA may include a quality check on registra tion files and the examination of testing 
EN 24   EN proposals. Certain substances may undergo ‘sub stance evaluation’, wher e national authorities 
consider all available information on a given substance. Substances  giving rise to high 
concern may be required to obtain Commis sion authorisation for use under stipulated 
conditions. Finally, the manufacture, import and use of substances that pose unacceptable 
risks to human health or the environmen t may be partly or totally restricted. 
The basic implementation package for REAC H had to be in place by mid 2008 and the 
Commission adopted the requir ed implementation measures via the comitology procedure 
(measures listed below). The Commission also reviewed Annexes I, IV, V, XI and XIII of 
REACH which led to amendment of Annexe s IV, V and XI (again listed below).  
It needs to be stressed that the implementation phase of REACH is only the beginning. The 
first phase – pre-registration with ECHA - started on 1 June 2008 and ended on 1 December 2008. Any contentious issues arising out of REACH implementation were dealt with, in 
particular, at regular quarterly meetings within the Commission expert group “REACH 
Competent Authorities” and its subgroups, in particular the Subgroups on the review of 
Annexes and on nanomaterials.  
So far, the Commission has dealt with a rath er limited number of enquiries and complaints 
regarding pre-registration. Thes e problems were resolved in co llaboration with ECHA which 
has developed various tools to help operators  to fulfil their REACH obligations (guidance 
package, Navigator tool, helpdesk, FAQs etc.). National REACH helpdesks are also 
functioning well.  
REACH is directly applicable legislation w hose enforcement should be primarily ensured by 
the Member States through a system  of official controls and ot her appropriate activities. The 
core parts of REACH began to apply in the second half of 2008 and national provisions on 
penalties had to be notified by 1 December 2008. Not all Member States have fulfilled this 
obligation on time and, having addressed this i ssue several times in its contacts with the 
competent authorities, the Commission is now  initiating infringement proceedings. The CLP 
Regulation, which entered into force in January  2009, will also start to apply on a staggered 
timeline, alongside pre-existing legislation which will be progressively repealed. 
The REACH system is supplemented by a comp rehensive package of technical guidance 
documents to ensure its uniform and c onsistent interpreta tion. Throughout 2008, the 
Commission was involved in developing new gui dance and updating existing guidance, which 
will be adopted and published by ECHA.  
The Commission also actively participated in the first meetings of ECHA’s Forum for the 
Exchange of Information on Enforcement which is comprised of representatives of national 
enforcement authorities. 
Changes underway 
The Commission is closely monitoring how Me mber States enforce REACH in order to 
ensure transparency, impartiality and consis tency in enforcement throughout the EU. A study 
has been commissioned with a view  to obtaining detailed comparis ons of the types and levels 
of penalties provided for in different Member States.  
The Commission will, in particular, work clos ely with the ECHA’s Forum for the Exchange 
of Information on Enforcement which coordi nates a network of national authorities 
EN 25   EN responsible for enforcement. The Commission w ill also continue to work to enhance good 
cooperation, coordination and exch ange of information with na tional authorities and ECHA.  
The Commission will also revi ew the Annexes to REACH with  a view, in particular, to 
aligning them with the new CLP Regulation.  
The Commission has already begun to prepar e for one of its main roles under REACH - 
granting authorisations for the placing on the mark et and the use of substances giving rise to 
high concern. This will be a top priority of the Commission in the future. 
Evaluation 
The correct implementation of the new REACH a nd CLP Regulations will be critical for the 
chemical industry sector in the coming year s. REACH has the long-term objectives of 
providing a high level of protect ion of human health and the environment while ensuring the 
free circulation of substances on the intern al market and enhancing competitiveness and 
innovation. These objectives should be progressi vely attained over the next decade and 
beyond. However, we are at the ve ry beginning of its implementa tion and clearly it will only 
be possible to evaluate to what extent these objectives are being fulfilled over the coming 
years, whereupon corrective action will be taken if necessary.  
As REACH legislation is based on a completely new regulatory approach and has shifted 
much of the burden for ensuring the safe us e of chemicals onto industry, the Commission 
needs to monitor closely whether its implementa tion is effective and c onsistent throughout the 
EU. There is scarcely any information from Me mber States for the time being. In 2009 much 
activity will focus on pre-re gistration and registration oblig ations and the provision of 
necessary information in th e supply chain under REACH.  
The necessary legal framework for regulating chem icals is now in place, as are most guidance 
documents. Around 2.75 million pre-registrati ons were made by 65,000 companies for 
150,000 different substances. The phased deadlines for registration (based on the quantities of 
substances to be produced or imported) are 2010, 2013 and 2018.  
2009 will be the first year of data sharing and preparation for the submission of joint 
registrations within “substance information ex change forums” (SIEFs) organised by industry. 
Neither the Commission nor ECHA can be directly  involved in this process, but meetings 
with industry stakeholders and various workshops  are being organised to  ensure the correct 
implementation of REACH. 
The Member States should provide their firs t reports on the operation of REACH by June 
2010 and ECHA will report by June 2011. On the ba sis of these reports, the Commission will 
prepare the first general report on the operatio n of REACH and will review the scope of 
REACH by June 2012.  
2.3.2. Other chemicals legislation 
Current position 
Monitoring of the implementation by the Member  States of Regulatio n (EC) No 273/2004 on 
drug precursors, which came into force in 2005, continued. 8 infringeme nt cases were opened 
and 4 are still ongoing. 
EN 26   EN Concerning the implementation of Di rectives 2004/9 and 2004/10 on good laboratory 
practice, in infringement proc eedings before the European Court against Luxembourg on 4 
November 2008 the Court held that " by not putting in place the authorities able to verify the 
implementation of the principles of good laboratory practice, the Grand Duchy of 
Luxembourg has failed to fulfil its obligations  under Article 3 of Directive 2004/9/Ec” (C-
95/08). 
The Commission launched proceedings agains t Luxembourg for the non-implementation of 
Regulation EC No 648/2004 on detergents 648/ 2004. In its judgment of 24 March 2009 (C-
184/08) the European Court of Justice held th at Luxembourg had failed to its obligations 
pursuant to Regulation EC No 648/2004 by not  adopting the relevant penalties. 
Changes underway 
Provisions of the REACH Regulation will replace Directive 76/769/EEC on 1 June 2009. 
Until then, new amendments to Directive 76/769/ EEC are being enacted as decisions instead 
of directives which do not require transpositio n. The volume of enquiries relating to this 
Directive has always been high, mostly linked to its amendments. This is  expected to remain 
the same when Directive 76/769/EEC is replaced by REACH as new restrictions will continue 
to be adopted. 
In 2008, the Commission continued to use prev entive techniques to ensure the correct 
application and coherent implementation of Directive 2007/23/EC on Py rotechnic Articles. 
Commission services and Member States are disc ussing questions related to the transposition 
of the directive in the working group set up by the directive. Transpos ition is due in 2010 and, 
since it represents an important departure from  existing national measures for Member Stares 
the transition is being prepared for in advance. 
In the explosives sector, Member States mu st transpose Commission Directive 2008/43/EC on 
the identification and tra ceability of explosives. 
The number of enquiries received c oncerning Directive 1999/45/EC on dangerous 
preparations, Directive 93/15/EEC on explosiv es and Regulation 2003/2003 on Fertilisers is 
high. For most of these texts a list of frequently asked ques tions has been published on the 
internet which allows operators access to que stions put, and replies provided, in the past. 
However, the number of actual complaints received remains low. One petition was received 
concerning ceramic fibres used in car catalysts (ref 2006/90).  
Evaluation  
The number of infringements decreased in 200 8 largely because the replacement of Directive 
76/769/EEC by the REACH Regulation meant that fe wer directives needed to be transposed. 
This trend is naturally expected to continue. 
Over the past 3 years the correct implementatio n of enforcement rules for several regulations 
(including the adoption of pena lties at national level for th eir infringement) has been a 
priority. The Court of Justic e has supported the Commission by re quiring that penalties for 
infringements to EC regulations be put in pla ce (see C-184/08). This activity should decline as 
a result. 
EN 27   EN 2.4. Pharmaceuticals 
Current position 
For the main measures monitored by the Co mmission in the pharmaceutical sector, please 
refer to Annex I point I.1 
With regard to Directive 2001/ 83/EC of the European Parliament and of the Council on the 
Community code relating to medicinal produ cts for human use and Regulation (EC) No 
726/2004, laying down Community procedures for the authorisation and supervision of 
medicinal products for human a nd veterinary use and establis hing a European Medicines 
Agency , the Commission brought actions before the Court of Justice against Lithuania for 
retaining in force after accession a national ma rketing authorisation which did not comply 
with the requirements of the Dire ctive and Regulation. (Case C-350/08). 
With regard to Directive 2001/83/EC and Regulation (EC) No 726/2004 of the European 
Parliament and of the Council, laying down Co mmunity procedures for the authorisation and 
supervision of medicinal products for human a nd veterinary use and establishing a European 
Medicines Agency (EMEA), th e Commission brought actions be fore the Court of Justice 
against Poland for putting on the market and ma intaining on the market after accession the 
national market to medicinal products for which marketing authorisations were not granted in 
accordance with the above mentioned Dir ective and Regulation (case C-385/08).  
In relation to cases earlier brought before the Court of Ju stice for non-communication of 
national measures transposing Directive 2004 /27/EC, Directive 2004/28/EC and Directive 
2005/28/EC, in which the Court of Justice ruled that the Member States had failed to fulfil its 
obligations under these directives, in 2008 the Commissi on closed most of these cases 
following Member States’ communication of national transposition measures. 
In 2008, the Commission continued to use prev entive techniques to ensure the correct 
application and coherent implemen tation of the pharmaceutical acquis. 
The following working parties deal with the general interpre tation of European 
pharmaceutical legislation, in preparation for its transposition and implementation by the 
Member States: 
– the Pharmaceutical Committee which met in May 2008, 
– the “Notice to applicants” group which met in October 2008 and examined 
different chapters of the guidelines in terpreting requirements for applications 
for marketing authorisation.  
Furthermore, the Commission continued to work intensively with Member States in the 
course of 2008 to ensure coherent implementati on of EC rules on clinic al trials set out in 
Directive 2001/20/EC of the Eu ropean Parliament and of th e Council on clinical trials, 
complemented by Commission Directives 2003/94/EC and 2005/28/EC. Co-operation was 
mainly channelled into the ‘Ad hoc group for th e development of implementing guidelines for 
Directive 2001/20/EC relating to good clinical practice in the conduct of cl inical trials on 
medicinal products for human use.’ 
EN 28   EN The Commission also took part in  various forums, such as t hose organised by the European 
Medicines Agency and the Member States, to  present guidelines for the transposition and 
implementation of legislation. Notably, the Comm ission participated in the regular meetings 
of the heads of the national medicines agencies. 
In the area of pharmaceutical legislation, the Commission dealt with three petitions.  
Changes underway 
The so-called “pharmaceutical package” wa s adopted on 10 December 2008 and transmitted 
to the European Parliament ant the Council fo r adoption through co-d ecision, containing:  
• two legislative proposals on pharmacovigilan ce, involving amendments to Regulation 
(EC) No 726/2004 and Directive 2001/83/EC;  
• two legislative proposals on information to patients involving amendments of 
Directive 2001/83/EC and Re gulation (EC) No 726/2004;  
• a legislative proposal on counterfeit medi cines involving amendments of Directive 
2001/83/EC.  
The package also includes a Communication from the Commission to the European 
Parliament, the Council, the European Economi c and Social Committee and the Committee of 
the Regions on "Safe, Innovative and Accessi ble Medicines: a Renewed Vision for the 
Pharmaceutical Sector" (COM/2008/ 0666 final), setting out the Co mmission's strategy for the 
pharmaceutical sector in the coming years. 
During 2008, the Commission prepared measures  to implement Regulation (EC) No 
1394/2007, for adoption in 2009. 
In addition, the Commission has adopted Co mmission Regulation (EC) No 1234/2008 of 24 
November 2008 concerning the examination of variations to the terms of marketing 
authorisations for medicinal products for hum an use and veterinary medicinal products, 
modernizing the system on variations and re pealing Regulations (EC) No 1084/2003 and (EC) 
No 1085/2003. 
Evaluation 
The pharmaceutical sector is highly dynamic and subject to frequent change. A major 
legislative package was transmitted to the Europ ean Parliament and the Council at the end of 
2008, which will continue to require close colla boration with Member States to ensure the 
correct application of Community law. The wo rking groups, expert meetings and committees 
described above will continue to provide a useful tool to ensure coherent implementation of the Community rules. 
The Transparency Directive
 
Pricing and reimbursement policies fall within the competence of Member States. However, 
Directive 89/105/EEC (commonly referred to as  the "Transparency Directive") defines a 
series of procedural requirements to ensure  the transparency of  national pricing and 
EN 29   EN reimbursement measures. Its provisions do not affect the capacity of Member States to 
determine the organisation and financing of thei r healthcare systems. In particular, Member 
States are free to set the pri ces of medicines and to determ ine their reimbursement status 
under national or regional health insurance schemes. Directive 89/105/EEC is a peculiar 
instrument under Community law because it lies  at the interface betwee n EU responsibilities 
(internal market) and na tional competences in the public h ealth area (freedom of Member 
States to organise their so cial security systems).  
After enlargement in 2004, national systems in many of the new Member States were still 
insufficiently aligned with the obligations of th e Transparency Directive. It was also reported 
that some of the older Member States did not al ways respect the principles of the Directive. 
The Commission has therefore significantly step ped-up its efforts to ensure the enforcement 
of the Directive in th e last five years. 
In 2008, further substantial prog ress was made in strengtheni ng the implementation of the 
Directive in the Member States. Problems id entified on the basis of complaints were 
systematically addressed through bilateral disc ussions and in cooperatio n with the competent 
national authorities. This approach allowed the transposition of the pr ocedural requirements 
of the directive in several Member States to be improved, thus bringing  greater transparency 
to national pricing and reimbursement systems.  One case ruled on by the European Court of 
Justice, found that Austrian legislation had faile d to comply with the time-limits for pricing 
and reimbursement decisions laid down in Di rective 89/105/EEC (footnote: Judgment of 17 
July 2008, Case C-311/07, Commission v. Austria). Discussions with Member States on the 
application and interpretation of  the directive were also pursued in the framework of the 
Transparency Committee convened in November 2008. Given the complexity and constant evolution of national health insurance systems, it is 
expected that further monitori ng will be necessary in the co ming years. The Commission will 
give priority to infringement proceedings in cases where the Directive has not been 
adequately transposed and where this could entail significant barriers to trade in medicinal 
products.  
2.5. Medical devices 
Current position 
The medical devices sector is  regulated by three main directives: Directive 90/385/EEC 
relating to active implantable medical devi ces, Directive 93/42/EEC concerning medical 
devices, and Directive 98/79/EC on in vitro diagnostic medical devices. The first two 
directives have been modified several tim es, most recently by Directive 2007/47/EC which 
was due to be transposed by the Member States by 21 December 2008. However, the transposition rate of this directive was low an d, at the beginning of 2009, the Commission 
initiated 18 infringement proceedings for non-communication of transposition measures.  
Except for one case, all the infringement cases opened in 2007 for non-communication of 
national measures transposing Commission Di rective 2005/50/EC, on the reclassification of 
hip, knee and shoulder joint replacements in the framework of Council Directive 93/42/EEC, 
were closed in 2008. The remaining open case is due  to be closed in  2009. Eight infringement 
proceedings against Bulgaria were also cl osed after communication of the transposition 
measures for the whole acquis  on medical devices.  
Six infringement cases for non-conformity with, or incorrect applicati on of, medical devices 
directives were still open at the end of 2008 although one will probably be closed in 2009. 
Two new complaints were received in 2008 and are being analysed; five other complaints 
EN 30   EN received in 2008 concerned an is sue (i.e. registration requirem ents for medical devices in 
Italy) in relation to which the Commission ha d already started proceedings based on three 
complaints received in 2007. 
Changes underway 
In 2009, communication and conformity of na tional measures transposing Directive 
2007/47/EC will be checked. Correlation tables ar e extremely helpful in  the performance of 
this task, in particular if th e relevant provisions of the Directive(s) are transposed by 
amending several different legal acts of the Member States.  
Looking to the future, the Commission launche d a public consultation in 2008 concerning the 
recast of the medical devices directives; 200 responses were received and analysed. The 
Commission intends to make the regulator y environment simpler and more easily-
understandable (e.g. by merging Directives 90/ 385/EEC and 93/42/EEC, together with their 
amending directives). This will better ensure the efficient functioning of the internal market 
whilst guaranteeing a high level of safety for pa tients and users. A more transparent system 
regarding the control an d placing on the market of medical  devices would en able European 
citizens to be confident of the safety of these products. In addition, Directive 98/79/EC 
concerning in vitro diagnostic medical device s, which has not been amended since its 
adoption, might be revised. In the context of the revision of th ese three directives, necessary 
alignments with the New Legislative Framework for the Marketing of Products will be considered. 
Evaluation 
The present regime in the medical devices sect or is continually being adapted for a broad 
range of products and issues in order to ensure  a high level of safety for patients, users and 
third parties. The initiative to modernize the acquis derives from a desire to simplify it in 
accordance with better regulation principles an d to further improve safety standards and 
market surveillance, in the light of  technical and scie ntific progress. 
2.6. Cosmetics 
Current position 
The cosmetics “acquis” consists of Council Di rective 76/768/EEC, which has been amended 
seven times and modified for the purpose of adapting to technical progress 50 times
9. It will 
be replaced by a Regulation to be adopted in 2009. 
In 2008, there were three meetings of the Standing Committee on Cosmetics Products (a 
regulatory comitology committee) , and three meetings of the Working Group on Cosmetics, 
which includes Member States, representatives of industry and consumers. The agenda of the 
Standing Committee always includes a point  on the transposition of directives. 
                                                 
9 The consolidated text of Council Directive 76/768/EC and the adaptations to technical progress are 
available on: http://ec.europa.eu/enterprise/cosmetics/html/consolidated_dir.htm. 
EN 31   EN National transposition measures are systematically checked to ensure that the text submitted 
relates to cosmetic products, that the reference of the directive transposed is mentioned and 
that all of the substa nces concerned by the adaptation are mentioned. 
The Commission launched 27 infringement pr oceedings for non communication of national 
transposition measures relating to Commission Directiv es 2007/22, 2007/53, 2007/54, 
2007/67, 2008/14 and 2008/42 on the adaptation to t echnical progress of Council Directive 
76/768/CEE on cosmetic products, whose transposition deadlines were all in 2008. 15 of these proceedings were closed within the same year. 
One complaint was received for alleged non-co nformity to Directiv e 76/768/EEC, which is 
currently being investigated. 
Changes underway 
In 2008, four directives adapting the Cosmetics Directive to technical progress were adopted 
by the Commission, two with transposition deadlin es in 2008 and two with deadlines in 2009. 
After the adoption of each directive, the Commi ssion sent a letter to the Member States to 
remind them of the deadlines and offer support with transposition. It was not necessary to 
include an obligation to provide correlation tabl es for the above-mentioned directives because 
the content is very technical and Member States use the original text of the directive in their 
transposition measures. 
A proposal for a (recasting) regulation of the European Parliament and the Council on 
cosmetic products was adopted by the Commission on 5 February 2008. This aims to guarantee the safety of cosmetic products, in  the light of innovation, and to simplify the 
legislative environment. Negotiations with Council and European Parliament carried on 
during 2008 and early 2009, and will  lead to the adoption of th e Regulation in First Reading 
in the course of 2009.  
Evaluation 
By its very nature, the cosmetics sector is subject to continuous innovation and technical 
progress, and so legislation mu st continue to be dynamic. In this context, the Commission 
acknowledges the very fruitful cooperation enjoyed not only with  the Member States but also 
with all stakeholders. 
The recast of the principal legislation in the form of a regulation will improve the efficiency 
of the internal market for cosmetics. The Regul ation will enter into force in the course of 
2013, and, as a result, all future technical adapta tions will also be adopted by regulation. This 
change will create a single legislative framewor k as the sole reference for operators in the 
internal market. In addition, it will save reso urces by removing the need for Member States to 
adopt (and for the Commission to monitor) tran sposition measures. During the transition 
period between the adoption of the Regulation and its application, the Commission will continue to adopt technical  adaptation directives. 
2.7. Mechanical, electrical and telecommunications equipment 
Current position 
EN 32   EN With respect to Directive 2004/ 108/EC on the approximation of  the laws of the Member 
States relating to electromagnetic compatib ility and repealing Directive 89/336/EC, 5 non-
communication cases were still open at the beginning of 2008. Du ring the year, 4 cases were 
closed, following communication of national transposition measures. One case against 
Luxembourg was referred to the ECJ, since th e national transpositio n measures were not 
communicated. 
Directive 2006/42/EC on machinery, amending Di rective 95/16/EC (recast), came into force 
on 29/6/2008. 12 non-communication cases were  opened. By the end of 2008, 3 Member 
States (Greece, Italy and Luxembourg) had st ill not notified their transposition measures. 
One case against Poland under Directive 94/25/EC on the approximation of the laws, 
regulations and administrative pr ovisions of the Member States relating to recr eational craft, 
was closed following modification of the le gislation concerning the registration of 
recreational craft. 
Changes underway 
Following the adoption of Decision 768/2008/EC on a common framework for the marketing 
of products, and repealing Council Decision 93/ 465/EEC, some directives will have to be 
revised. A proposal to amend the Machinery Dir ective (Directive 2006/42/EC) is expected to 
be adopted in the 2nd quarter of 2009 with th e aim of introducing environmental protection 
requirements for new machinery for pesticide ap plication placed on th e market in the EU. 
An amendment for the purposes of adaptation to  technical progress is  expected in the 3rd 
quarter of 2009 in relation to Directive 97/68/EC on the appr oximation of the laws of the 
Member States relating to measures against th e emission of gaseous and particulate pollutants 
from internal combustion engines to be installed in non-road mobile machinery. 
Like in 2007, priorities are the non-comm unication cases. In 2007, the non-communication 
cases concerned Directive 2004/26/EC and Dir ective 2002/88/EC on the approximation of the 
laws of the Member States relating to m easures against the emission of gaseous and 
particulate pollutants from internal combustion engines to be installed in non-road mobile 
machinery.  
In 2008, the above mentioned directives are no longer of concern (since following 
communication of the national transposing measures, the Commission withdrew its 
proceedings against several Member States).  The priority non-communication cases in 2008 
concern Directive 2004/108/EC on the approximation of the laws of the Member States 
relating to electromagnetic compatibility  and Directive 2006/42/EC on machinery. 
Evaluation 
The mechanical, electrical and telecommunica tions equipment sectors function smoothly. The 
existing acquis is relatively long-standing and well established. It has not required much 
development in the past, nor is much expected to be needed in the foreseeable future. The volume of problems arising is reasonably limited and stable. The overall situation is stable, manageable and acceptable. 
EN 33   EN 2.8. Gas appliances, pressure equi pment and legal metrology 
2.8.1.  Gas appliances 
Current position 
The gas appliances  sector  is covered by Directive 90/3 96/EEC on appliances burning 
gaseous fuels, one of the early New Approach Directives. It has the dual purpose of ensuring 
the free movement of gas appliances through technical harmonisation w ith regard to hazards 
due to gas, and of guaranteeing a high level of protect ion of public interest objectives referred 
to in Article 95(3) of the EC Treaty. It in cludes the definition of mandatory essential 
requirements and the setting up of mandato ry conformity assessment procedures. 
Work on safeguard clause notifications has co ntinued, with particular emphasis on issues 
relating to the safety of patio heaters. A lett er of formal notice was sent to Germany, for 
incorrect implementation of Dir ective 90/396/EEC on gas appliances. 
Changes underway 
The Directive has been operational and has func tioned satisfactorily for more than fifteen 
years but technical progress and innovation, together with expe rience of its implementation 
has led to an examination of the need for revision by the Working Group on Gas Appliances. 
Within this Working Group a subgroup has been created charged with presenting specific 
proposals for amendment. The Directive will al so be aligned with Decision 768/2008/EC on a 
common framework for the marketing of products.  
In addition, a study on “Competitiveness in the EU  gas appliances sector” has been underway 
since August 2008 and the final report is expect ed in the second half of 2009. This study is 
intended to provide information to the Commissi on, the Member States and stakeholders on 
the current situation in the gas appliances s ector and to highlight future prospects for 
development in the sector. This analysis will also feed into the overall assessment of the sector in the context of the po ssible revision of the Directive. 
In 2009, along with work to identify where the Di rective might be modified, the emphasis in 
managing the Directive will be on infringement procedures, safeguard clauses and better 
implementation of the Directive generally. 
Evaluation 
The regulatory framework has served well fo r 15 years but the time has come for a re-
assessment to ensure that it continues to fu lfil its objectives by th e most effective means 
possible.  
2.8.2.  Pressure equipment 
Current position 
Managing the pressure sector means protecting hea lth and safety in relation to pressure risks, 
and involves products ranging from simple pressure cookers to large chemical installations. 
EC law in this area mainly comprises the harmonisation Directives 87/404/EEC on simple 
pressure vessels and 97/23/EC on pressure eq uipment, covering the design, manufacture and 
conformity assessment of such equipment.  
EN 34   EN In addition, Directive 75/324/EEC  on aerosol dispensers specifi es the safety and labelling 
requirements that aerosol dispensers must sa tisfy in order to be placed on the market.  
Two cases against Italy were closed, as no in correct implementation of Directive 97/23/EC 
was demonstrated. Also in connection with Directive 97/23, a reasoned opinion alleging 
incorrect implementation in relation to  solar panels was sent to Spain. 
Changes underway 
Directives 87/404/EEC and 97/23/EC are schedul ed to be aligned with the new legal 
framework for the marketing of products and in particular Decision 768/2008/EC of the 
European Parliament and of the Council of  9 July 2008 on a common framework for the 
marketing of products and repea ling Council Decision 93/465/EEC.  
Directive 2008/47/EC of 8 April 200810, modified Directive 75/324/EEC, adapting it to 
technical progress. Member Stat es must transpose this Direc tive by 29 October 2009 and the 
new regime it introduces will apply from 29 April 2010. Timely transposition will be a 
priority in 2009. 
The four old Directives on pr essure vessels (framework directive 76/767/EEC and three 
specific ones on gas cylinders, namely  Directives 84/525/EEC, 84/526/EEC and 
84/527/EEC), originally scheduled to be repeal ed in 2008, will be repealed by a forthcoming 
Directive of the Council and th e European Parliament on trans portable pressure equipment. A 
proposal for this Directive is currently under preparation (by anothe r Commission service), 
and is expected to be adopted by the end of 2009. 
Evaluation 
The sector functions smoothly and there are no major problems. Nevertheless, infringement 
procedures and issues relating to the correct implementation of all directives in the pressure sector will be actively pursued by the Commission services in 2009.  
2.8.3.  Legal metrology 
Current position 
The acquis in this area has a wide scope c overing units of measurement and metrological 
requirements for the placing on the market and putting into service of  pre-packed products 
and measuring instruments. 
The main Directives dealing with the design and manufacture of meas uring instruments are 
Directives 71/316/EEC on comm on provisions for both measur ing instruments and methods 
of metrological control, 90/384/EEC on non-au tomatic weighing instruments and 2004/22/EC 
on measuring instruments. 
                                                
 
10 Directive 2008/47/EC amending, for the purposes of adapting to technical progress, Directive 
75/324/EEC on the approximation of the laws of the Member States relating to aerosol dispensers (OJ L 
96, 9.4.2008, p.15).  
EN 35   EN Commission Directive 2007/ 13/EC of 7 March 200711 modified Annex II of Directive 
71/316/EEC to include images of distinguishing letters used by some Member States for the 
EC initial verification mark affixed on a measuri ng instrument to indicate conformity with EC 
requirements. Member States had to comply  with this Directive by 10 March 2008. The 
Commission began infringement procedures ag ainst 6 Member States for non communication 
of transposition measures but has since closed two cases following communication.  
With regard to pre-packed products, the main pieces of Community legislation are Directives 
75/106/EEC on pre-packaged liquids, 75/107/EEC on bottles used as measuring containers, 
76/211/EEC relating to the making-up by weight  or by volume of certain pre-packaged 
products and 80/232/EEC on ranges of nominal qua ntities and nominal capacities for certain 
pre-packaged products. (From 11 April 2009, requirements for pre-packaged liquids will appear in Directive 76/211/EEC as Direc tive 75/106/EEC will be repealed by Directive 
2007/45/EC). 
Directive 2007/45/EC of the Council and the European Parl iament of 5 September 2007, 
laying down rules on nominal quantities fo r pre-packed products , repealing Council 
Directives 75/106/EEC and 80/232/EEC a nd amending Council Directive 76/211/EEC
12, aims 
to liberalise nominal quantitie s of pre-packaged products with in the EU in line with ECJ 
jurisprudence, with the exception of wine and spirits for which nominal quantities will 
continue to be defined at Community level. Th e substance of the Directive became applicable 
on 11 April 2009 but Member States should ha ve transposed it by 11 October 2008. The 
Commission began infringeme nt procedures against 10 Member States for non 
communication of national transposition measures. 
Units of measurement are harmonised at  Community level by Directive 80/181/EEC13 which 
creates a harmonized regulatory framework thr oughout the EU to eliminate trade barriers 
between Member States.  
On 10 September 2007, the Commission presented a proposal for a Directive of the European 
Parliament and the Council to amend Direct ive 80/181/EEC so as to allow the use on a 
permanent basis of certain indicat ions supplementary to the lega l units of measurement and to 
adapt the Directive to technical progress. In ac cordance with the subsidiarity principle, the 
amendment also expressly permits the United Kingdom and Ireland to continue to use the 
‘mile’ for road signs/speed indications, the ‘pint’ for milk in returnable bottles and for beer and cider on draught and the ‘troy ounce’ fo r transactions in precious metals. The 
maintenance of these terms in limited, local circum stances will not lead to barriers to the free 
movement of products. A common position (28/2008)
14 was adopted by the Council on 18 
November 2008 and the Parliament approved th e text without amendment on its second 
reading on 16 December 2008. 
Changes underway 
                                                 
11 Commission Directive 2007/13/EC amending Annex II to Council Directive 71/316/EEC on the 
approximation of the laws of the Member States relating to common provisions for both measuring 
instruments and methods of metrological control (OJ L 73, 13.3.07, p.10). 
12 OJ L 247, 21.9.2007, p.17. 
13 Proposal for a Directive of the European Parliame nt and of the Council amending Council Directive 
80/181/EEC on the approximation of the laws of the Member States relating to units of measurement 
(COM (2007)510 final.  
14 OJ C 330 E, 30.12.2008, p.1. 
EN 36   EN Directive 2004/22/EC was adapted by Regulation (EC) No 1137/200815 to the new regulatory 
procedure with scrutiny established by Council Decision 1999/468/EC laying down 
procedures for the exercise of implemen ting powers conferred on the Commission, as 
amended by Decision 2006/512/EC. 
On 24 November 2008 the Measuring Instrume nts Committee established under Directive 
2004/22/EC met and delivered a favourable opinion in relation to three texts submitted by the Commission on the publication of references  of normative documents drawn up by OIML 
(advisory procedure). Applying the new regul atory procedure with scrutiny, the Committee 
also gave the green light to  a draft Commission Directive amending Directive 2004/22/EC (on 
the exploitation of maximum permissible errors ) as regards instrument-specific annexes MI-
001 to MI-005. On the expiry of the three m onth period permitting scrutiny by the European 
Parliament and the Council, and in the abse nce of opposition, the draft Directive should be 
adopted in the first half of 2009. 
On 3 December 2008 the Commission presented a le gislative proposal for a Directive of the 
European Parliament and the Council, re pealing 8 old metrology Directives (COM 
(2008)801)
16. These Directives were adopted under framework Directive 71/316/EEC. They 
co-existed with national provisions. However, in practice adaptation to technical progress and 
innovation in relation to products covered by th ese Directives was effected either by the 
voluntary application of new international and European standard s or through national 
provisions implementing these standards. It was also felt that the free movement of these 
products could be adequately ensured by Artic les 28 to 30 EC and the mutual recognition 
principle.  
A standardisation mandate for smart metering was issued in March 2009 with a view to 
ensuring the free movement of meters with ad ditional functions concerning energy end-use 
efficiency.  
Evaluation 
The measuring instruments sector functions  smoothly and no major problems have been 
encountered. In 2009 attention priority will primar ily be given to infringement procedures and 
the correct implementation of directives in the sector. 
2.9. Construction products 
Current position Directive 89/106/EC on construction products (“the CPD”) has not been amended recently, 
which has allowed for steady development of its implementation within national systems. 
Harmonisation through European standards, published in the OJEU, has continued and 
conditions for enterprises operating in this s ector, either as manufac turers or users of 
construction products, have thus made so lid progress during 2008. However, certain 
                                                
 
15 Regulation (EC) No 1137/2008 of the European Parliament and of the Council of 22 October 2008 
adapting a number of instruments s ubject to the procedure laid down in Article 251 of the Treaty to 
Council Decision 1999/468/EC, with regard to the regulatory procedure with scrutiny (OJ L 311, 31.11.2008, p.1). 
16 The Directives that are proposed to be repealed  are Directives 71/317/EEC, 71/347/EEC, 71/349/EEC, 
74/148/EEC, 75/33/EEC, 76/765/EEC, 76/766/EEC and 86/217/EEC.  
EN 37   EN fundamental problems with the implementation of the CPD remain unsolved, resulting in 
different transposition by the Member States and consequent inefficiencies in the market. 
During 2008, a joint reasone d opinion was issued in relation to two cases against Germany 
(2004/5116 and 2005/4743). In addition, four infr ingement cases were closed and several 
others are approaching closure. The two Germ an cases mentioned above and a case against 
the UK (2005/4074) are considered as priority cases due to their great impo rtance to the sector 
as a whole. 
Changes underway 
The revision of the CPD proceeded dur ing 2008 with the adoption on 23 May of a 
Commission proposal for a Regulation (“the CPR” ). Originally it wa s thought that  adoption 
by the legislature would be possible in 2009, in which case the new CPR replacing the CPD 
would have come into force in mid-2011. Howeve r, recent developments in the co-decision 
procedure have made it likely that this  timing will be substantially delayed. 
Even if the CPR is unlikely to come into forc e in the next two years,  the initiation of new 
infringement proceedings (and the conduct of ongoing proceedings) is s till influenced by the 
legislative process leading to the adoption of th e CPR. One of the main reasons for revision of 
the CPD is confusion over its provisions resul ting in different national implementation in the 
Member States, in particular as regards the us e of CE marking. Forthc oming clarification of 
some aspects of the CPD in the CPR inevitabl e has a bearing on the conduct of present and 
future infringement proceedings and, convers ely, judgments in ongoing infringement cases 
could help in finalising the CPR. 
In dealing with complaints generally, the aim is  to reach a conclusion as swiftly as possible. 
Some may be dealt with using the new procedure arising out of  the partnership approach to 
enforcement (where the Member State concerned is participating in the ongoing pilot project). 
Contacts with all Member States are in any event being intensified in the context of the continuing legislative process and this would seem to allow for more informal attempts to 
convince Member Stets of the need to ad just some of their current practices. 
In choosing and designating priority infringement cases in the future, links with the 
continuing legislative process on the CPR will be an important factor. 
Evaluation 
The acquis in this sector is in a state of tran sition. Since the new CPR will not be in place for 
at least another two years, we expect to contin ue to be confronted wi th legal uncertainties 
emanating from unclear provisions of the CPD a nd the consequent divergent interpretation by 
the Member States. However, efforts will conti nue to be made to deal with new cases more 
swiftly than before. Closer contacts with MS will undoubtedly prove to be of assistance for 
reaching these objectives. 
2.10. Textiles/clothing, footwear and wood 
Current position Textiles and clothing  are regulated by Directive 96/74/EC on  textile labelling which has been 
adapted to technical progress four time s by Commission Directiv es 97/37/EC, 2004/34/EC, 
2006/3/EC and 2007/3/EC. The recast of Direc tive 96/74/EC was adopted on 14 January 2009 
EN 38   EN in the form of Directive 2008/121/EC of the Eu ropean Parliament and of the Council of 14 
January 2009 on textile names [Official Jour nal L 19 of 23.1.2009 p.39.] Directives 96/73/EC 
(adapted to technical progress by two Comm ission Directives 2006/2/EC and 2007/4/EC) and 
73/44/EEC specify testing methods for sampling a nd analysis of fibre mixtures in order to 
determine the conformity of the information supplied on a label ac cording to Directive 
96/74/EC. Due to the technical nature of th is legislation, the Co mmittee and Working Group 
for Directives relating to textile names and labelling, composed of experts from Member 
States and other interested part ies, assist the Commission in the adaptation of the textiles 
Directives to technical progress. 
The acquis  in textiles/clothing sector is not co nsidered problematic, although occasionally 
national mandatory labelling requirements going beyond the scope of the labelling Directive 
(on size, care instructions et c.) create trade barriers proh ibited under Article 28 EC and 
necessitate infringement proceedings. Nor does the transposition of technical amendments of Directives 96/74 and 96/73/EC pose any major problems. In some minor instances of 
incomplete compliance, Member States were co ntacted informally to bring about realignment 
of national implementing rules. The informal cooperation with the Memb er States has proved 
effective in the resolu tion of most problems. In 2008 one co mplaint was lodged in relation to 
the legislation governing the placing of text iles/clothing and footwear on the European 
market. It concerned textile labelling requirements in Slovakia. After amendments requested by the Commission were effected by the Slova k authorities, the proc edure was closed.  
In relation to amendments of Directiv es 2007/3/EC and 2007/4/EC, for which the 
transposition deadline was 2 February 2008, 6 infringement proceedings for non-
communication were launched in March 2008. Following notification of transposition 
measures by the relevant national authorities, all the cases were closed by the end of the year. Letters of formal notice were also sent to Cyprus and Pola nd in March 2008, requesting the 
complete notification of national implementi ng measures for Directive 96/74/EC. Following 
the positive reactions of these Member States, the procedures were closed.  
In the footwear sector , Directive 94/11/EC on the labelling of materials used in consumer 
footwear generally does not give  rise to significant implemen tation problems. Infringement 
proceedings launched against Cyprus in March 2008 for non-communication of national 
transposition measures were cl osed in November on complian ce by the Cypriot authorities. 
Omissions and discrepancies found in Slovak and Hungarian transposition measures were resolved by informal communication w ith the relevant authorities.  
Changes underway 
During 2008, intensive consultation with Member  States and other stakeholders in the 
framework of the Working Group on Textile Name s and Labelling led to the adoption by the 
Commission in January 2009 of a proposal for a Regulation of the European Parliament and 
of the Council on Textile Names and Related La belling of Textile Prod ucts. The legislative 
procedure leading to adoption by the legi slature will continue during 2009. This new 
Regulation will replace all current  directives in the field of textile names and labelling, 
namely Directives 2008/121/EC, 96/73/EC, 73/ 44/EEC and their amending directives. 
Evaluation 
Regulation in the textiles, clothing and footwear  sectors is considered effective. Assessment 
of national transposition measures will co ntinue. In relation to the few remaining 
EN 39   EN discrepancies on textile names a nd labelling, direct informal communication with the Member 
States is being used and if this proves unsucces sful formal infringement proceedings will be 
launched.  
The adoption of the new Regulation, schedule d for the first quart er of 2010, and its 
subsequent implementation are expected to fac ilitate the work of national administrations, 
particularly as transposition will not be necessary.  
2.11. Toys 
The European Commission has tabled a new Dir ective to improve toy safety in Europe. The 
proposal aims to enhance the safety of toys replacing and modernizing the 20 year old Toys 
Directive, 88/378/EEC of 3rd May 1988. The revisi on has three objectives: first and foremost 
to introduce new and higher safety requirement s to cope with recently identified hazards, 
secondly to strengthen manufacturers’ and import ers' responsibility for the marketing of toys 
and finally to enhance the market surv eillance obligations of Member States 
2.12. Cultural goods 
In 2008, the acquis in this area remained stab le. The codification pro cess was followed by the 
European Parliament and the Council but no act was adopted in this year. 
Under Article 16 of the Directive 93/7/EEC, every three years the Commission shall send the 
European Parliament, the Council and the European Economic and Social Committee a report reviewing the application of the Directive by the Member States. In 2008, the Commission 
began preparing the third such report, cove ring the period 2004-2007. To that end, the 
Commission asked the Member States to  send national reports for that period. 
The third report will allow the Commission and ot her interested parties to determine whether 
the Directive continues to fulfil its purpos e and whether any modification is necessary. 
2.13. Late payment 
Directive 2000/35/EC
17 aims to combat late payment in  commercial transactions between 
businesses and between businesse s and public authorities. Experi ence since it entered into 
force and reports following external studies have shown that, althou gh attitudes to late 
payment have changed, the Direc tive actually has little impact. 
Several high level political messages have under lined the need for an amended instrument to 
combat late payment in commercial transa ctions. The Small Business Act [COM(2008)394] 
highlighted the key importance of SMEs to the competitiveness of the EU economy and 
stressed that effective access to finance was one  of the major challenges SMEs have to face, 
together with the need to make better use of the opportunities provided by the Single Market. 
The European Economic Recovery Plan [C OM(2008)800] stressed that sufficient and 
affordable access to finance was a pre-conditio n for investment, growth and job creation in 
the context of the economic slowdown and asked the EU and the Member States to ensure 
that public authorities pay invoices for supplies and se rvices within one month. 
                                                 
17 Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating 
late payment in commercial transactions, OJ L 200, 8.8.2000, p. 35–38. 
EN 40   EN Against this background, during 2008 the Direc tive has undergone a revision exercise; an 
external study was conducted during 2007-8 to assess the cost/benefit relationship of 
proposals presented in a report on the Directive made in 2006. The Commission also launched 
a public consultation of stakeholders in all o fficial EU languages which closed on 31 August 
2008 and yielded 510 responses. In  addition, the European Busine ss Test Panel was consulted 
between 13 May 2008 and 20 June 2008 and 408 re sponses were received. An Impact 
Assessment was presented to the Impact A ssessment Board on December 2008. A proposal 
for a recast Directive was adopted by the European Commission on 8 April 2009. 
During 2008 the Court of Justi ce delivered three judgments on late payment. In one action 
(based mainly on Art. 3(2) of the Directive) the national provisions at issu e were held to be in 
line with the Directive. In the two other cases18 where preliminary references had been made, 
the Court of Justice confirmed that the Direct ive “governs only certain specific rules intended 
to combat [such] delays, namely, rules on interest  for late payments (Article 3), retention of 
title (Article 4) and procedures for recovery  of unchallenged claims (Article 5)”. This 
provided further reason to amend the Directive. 
The European Commission has received severa l “complaints” denouncing late payments, 
especially by public administ rations. The replies to these enquiries informed the 
correspondents about the scope of  the Directive and the competen ce of national au thorities for 
the resolution of problems. 
2.14. Weapons 
Council Directive 91/477/EEC on control of the acquisition and possession of weapons has 
been amended by the Directive 2008 /51/EC of the European Parlia ment and of the Council of 
21 May 2008, which is to be transposed by Member States by 28 July 2010. The rationale of the amending directive is twofold: to comply  with the requirements of a United Nations 
Protocol against the illicit manufacturing of and traffick ing in firearms, signed by the 
Community in 2001, and to enhance security in firearms-related issues. In 2008, the 
Commission offered the Member States assist ance in facilitating appropriate and timely 
transposition. The Commission will intensify its contacts with the Member States in the course of 2009, in particular through the creation of a Contac t Group, which will provide the 
opportunity to tackle possible problems related to transposition measures. 
2.15. Product liability 
Directive 85/374 on product liability is a consolid ated tool that strike s a fair balance in 
spreading risk among citizens and producers, while ensuring the safety of citizens in relation 
to products put into circulati on in the internal market.  
In 2008 two requests for preliminary rulings, st ill pending at the e nd of March 2009, were 
referred to the Court of Justice
19. In the first, the Appellate Committee of the House of Lords 
in the UK asks for clarification of the meaning of the words “instituted proceedings against the producer” in article 11 of the Directive 85/ 374. The second relates to  the scope of Articles 
9 (concept of “damage”) and 13 (“rights of an injured person under the rules of the law of 
                                                
 
18 Case C-306/06, Deutsche Telekom, judgment of 3 April 2008 and case C-265/07, Caffaro, judgment of 
11 September 2008. 
19 Case C-358/08, Aventis Pasteur SA c M. Declan O’Byrne and case C-285/08, Moteurs Leroy Somer. 
EN 41   EN contractual or non-contractual li ability or a special liability system”). Both judgments are 
expected later in 2009. 
2.16. Defence goods 
According to established ECJ case-law, EC law applies to defence goods unless Member 
States makes use of article 296 EC, on a justifia ble case-by-case basis. However, no internal 
market measure had ever addressed the circ ulation of defence goods within the EU.  
As a result, EU defence industries were denied th e usual benefits of the internal market, which 
has hindered industrial specialis ation and cost-efficient conso lidation. Pan-European defence 
companies are emerging and EU armed forces re ly more and more on one another in the 
framework of ESDP, yet there is no regulator y framework supporting this industrial and 
strategic pan-Europeanization. 
In December 2007, the Commission tabled the arti cle 95-based directive simplifying the terms 
and conditions of intra-Community transfers of  defence-related products with a view to 
securing and simplifying the free circulation of  defence goods within th e EU. The directive is 
an internal market instrument tailor-made for the particular nature and sensitivity of defence goods.  
In 2008, swift negotiations in the Council and the Parliament pa ved the way for first reading 
agreement on 16 December 2008. The directive will be published around June 2009 with a 
two-year transposition period. In the meantime, the Commission will pay p eculiar attention to 
the certification of the main European defence companies as certification testifies to their ability to reap the maximum advantage fr om the EU simplified transfers regime. 
2.17. Non-harmonised area 
Current position Articles 28-30 EC ensure the easy cross-border ex change of goods within the Internal Market 
in areas that are no t subject to harmonisation by Comm unity legislation. The Commission 
monitors the correct application of these rule s and opens infringement  procedures against 
Member States when necessary. 
In 2008 the Commission dealt with fewer complain ts and infringement cases in the various 
non-harmonised fields covered by Article 28- 30 EC - 73 in 2008 compared with 85 in 2007. 
The main areas are: registra tion of vehicles, construction products, food supplements and 
parallel imports of medicines and plant protec tion products. Today’s rest rictions on the free 
movement of goods often relate to requirement s for products imposed in one Member State 
that are additional to, or more stringent than, those imposed in another. Market access for imported products can also be hampered by co mplicated and time-consuming administrative 
procedures. 
The majority of complaints (around 2/3) are brought by small and medium-sized enterprises. 
This confirms findings that in contrast to large ope rators who have been  very successful in 
benefiting from the opportunities of the single market, SMEs often find it fragmented and 
difficult to penetrate. 
In 2008 several infringement cases were closed following agreement between the 
Commission and the Member States on solutions to the problems. Italy, for instance, lifted 
EN 42   EN regional provisions prohibiting the import of green-listed waste from other Member States. 
Italy responded to the Commission’s interven tion by issuing, within just 1 month, a new 
measure which revoked the prohibition.  
However, in other cases it was not possible to  reach agreement and the Commission decided 
to bring proceedings before the Court of Justice: 
• Against the Czech Republic for obstacles to the registration of second-hand cars 
originating from other Member States, in particular by requesting an additional road 
worthiness test.20; 
• Against Belgium for unduly restricting the tr ade in birds born and bred in captivity21; 
• Against Austria for prohibiting certain h eavy goods vehicles from using a major 
transit motorway in Tyrol22; 
The Court of Justice delivered the following judg ments, thereby further clarifying the scope 
of Articles 28 to 30 of the EC Treaty. 
• In case C-227/06, the Court declared that, by enc ouraging economic operators to 
obtain Belgian marks of conformity prior to marketing in Belgium construction 
products lawfully manufactured  and/or marketed in anot her Member State, Belgium 
had infringed free movement  of goods principles.23  
• In case C-265/06, the Court held that by prohibiting the affixing of tinted film to the 
windows of motor vehicles Portuga l had contravened Article 28 EC.24 
• In case C-286/07 concerning the registration of second-hand cars originating in other 
Member States, the Court considered that the requirement that, prior to the registration of a car in Luxemburg, the owner of a used car must submit an
 excerpt from the 
commercial register of the seller (not requi red in relation to cars bought from a seller 
in Luxemburg) constituted an obstacle to free movement of goods25 
• In case C-170/07, the Court held  that a Polish measure requ iring used vehicles which 
had previously been registered in other Memb er States to undergo testing as to their 
general condition prior to registratio n is in breach of Article 28 EC.26 
• In case C-249/07, the Court held that a sy stem requiring prior authorisation for the 
seeding, in Dutch coastal waters, of oysters and mussels coming lawfully from other 
Member States and being of sp ecies native to the Netherlands, was contrary to Articles 
28 EC and 30 EC.27 
• In case C-524/07, the Court pointed out that , by making the registration of imported 
used vehicles dependent on more stringent  provisions then applied to domestic 
vehicles, Austria was in breach of Article 28-30 EC.28 
                                                 
20 Case C-294/08, Commission v Czech  Republic, following an amendmen t of the Czech legislation the 
Commission abandoned its action. 
21 Case C-100/08, Commission v Belgium, pending. 
22 Case C-28/09, Commission v Austria, pending. 
23 Judgment of 13 March 2008, C-227/06, Commission v Belgium. 
24 Judgment of 10 April 2008, C-265/06, Commission v Portugal. 
25 Judgment of 24 April 2008 , Case C-286/07, Commission v Luxembourg. 
26 Judgment of 5 June 2008, Case C-170/07, Commission v Poland. 
27 Judgment of 4 December 2008, Case  C-249/07, Commission v Netherlands. 
28 Judgment of 11 December 2008, Ca se C-524/07, Commission v Austria. 
EN 43   EN In two judgments the Court dismissed the pr oceedings brought by the Commission. In case C-
201/06 it clarified the conditions under which an authorisation for the pa rallel import of plant 
protection products should be granted, reje cting the interpreta tion proposed by the 
Commission.29 In case C-141/07 on the supply of medicina l products directly to hospitals, the 
Court confirmed that German law created a trade restriction but held that it was justified to protect public health.
30 
The Commission continued to fi nd pro-active solutions outsi de or in parallel with the 
infringement procedure under Article 226 EC through the SOLV IT problem-solving network, 
the preventive mechanism of Directive 98/34/EC  (whereby Member States are obliged to 
notify new national technical rules to the Commission at the draft stage) and bilateral meetings organised with Member States to di scuss active complaints and infringement cases 
as well as various horizontal issues. In 2008 the new EU PILOT mechanism was used to 
facilitate contacts with Member States a nd resolve some complaints more swiftly. 
Changes underway 
National rules on the characterist ics and performance of products  continue to fragment the 
internal market, especially for SME’s which of ten face the costly choi ce of either adapting 
their products to the requirements of the Member  State of destination, or refraining from 
entering the national market. This should chan ge when Regulation (EC) 764/2008 (the so-
called “Mutual Recognition Regulati on”) begins to apply on 13 May 2009. 
This regulation puts an end to the unlimited power s of national authorities to withdraw from 
their market a product lawfully marketed in an other Member State. Before taking any action 
against a product lawfully marketed in anothe r Member State, they will have to start a 
dialogue with the business and indicate the te chnical or scientific reasons why the product 
constitutes a risk for the user or the envi ronment. The dialogue will give the economic 
operator the opportunity to challenge these reasons and to discuss the matter with the competent authorities before any final decision is taken. 
Another new aspect is the esta blishment of one or more "Pr oduct Contact Points" in each 
Member State. Their main task will be to help SME’s in getting access to another national market by providing them with information about  technical rules on products. The Regulation 
also aims  to clarify the product categories to which the principle of mutual recognition applies 
by creating a non-exhaustive list of products which are not subject to EC harmonising 
legislation. The list will be accessible on the Europa website from 13 May 2009. 
In 2009, attention will focus on ensuring the corre ct application of the regulation. Work has 
already begun with the creation and first m eeting in March 2009 of the Mutual Recognition 
Advisory Committee set up by the regulation and further consideration of a telematic network 
to facilitate the exchange of information between product contac t points and competent 
authorities. Further meetings of the committee are planned for 2009. Work  is also underway 
on a website providing information on the practi cal functioning of the regulation. The first 
annual reports from Member States w ill be received and reviewed in 2009. 
Evaluation 
                                                
 
29 Judgment of 21 February 2008, Case C-201/06, Commission v France. 
30 Judgment of 11 September 2008, Case C-141/07, Commission v Germany. 
EN 44   EN Article 28 EC remains an essential legal instrume nt in the evaluation of cross-border obstacles 
to trade. As this provision a pplies only to the non-harmonised area, its scope fluctuates in 
accordance with developments in secondary Community legislation. 
In 2008 a further slight decr ease in the number of open infringement cases was observed, 
thereby confirming a longer term trend. Nevert heless, the volume of infringement cases 
remains substantial and shows that there is still a significant degree of non-compliance with 
the principle of the free movement of goods a nd a lack of understanding of the concept of 
mutual recognition, resulting in practical ba rriers to cross-border trade in goods.  
As regards mutual recognition, Regulation (E C) No 764/2008 should reduce the number of 
problems and complaints occurring as a resu lt of Member States incorrectly applying 
recognition procedures and thereby denying access to their markets.  
As regards the specific sector of vehicle registration, which s till triggers a lot of citizen 
complaints, new framework Directive 2007/46/EC, to be transposed by the end of April 2009, 
may create more legal certainty, which could facil itate the re-registration of used vehicles in 
other Member States. 
2.18. Preventive rules of Directive 98/34/EC 
Current position In 2008, preventive action continued under Dire ctive 98/34/EC thro ugh the provision of 
information, advice, interpretation and guidan ce with regard to draft national technical 
regulations of the 27 Member States, the EFTA  countries and Turkey concerning products 
and Information Society Services. 
In 2008, there was more fruitful collaboration between the Member States and the 
Commission on several levels. Firstly, three m eetings of the Committ ee on “Standards and 
Technical Regulations” were held to disc uss current problems connected with the 
implementation of Directive 98/34/EC. These m eetings not only play an  important role in 
supervising the operation of th e 98/34 procedure and in the examination of policy issues 
raised by the notifications, but also remind the Member States to notify regularly to the 
Commission all their draf t technical regulations. 
Secondly, seminars were held in Malta, Greece,  Denmark, Bulgaria, Belgium, and Estonia on 
the operation of the notification procedure. The seminars were attended by representatives of 
national authorities and industry. These semi nars are an excellent opportunity for the 
Commission to present Directive 98/34/EC as a key instrument of the Internal Market, which 
prevents problems ex-ante and avoids infrin gement procedures. Moreover, the seminars 
strengthen relations between the Commission a nd representatives of the national authorities. 
The opportunity to present information about the obligation to notify national technical 
regulations and the notification procedure itself, as well as discussions and exchanges of 
views on all problems connected  with the operation of the 98/34 procedure, are all very 
important. In addition, IT meetings were held in France, Spain and Germany to present the 
new version of the Technical Regulations Inform ation System applicatio n. Last but not least, 
a conference to celebrate the 25
th anniversary of the notificat ion procedure took place in 
November which gathered togeth er national authoritie s, economic operators and services of 
the Commission. On that occasion, several proposa ls regarding improvement of the Directive 
98/34/EC procedure were made by the Member States and economic operators that will be 
further investigated by the Commission. 
EN 45   EN As to the future, the figures for the first quarter of 2009 suggest th at a high number of 
notifications will be received  and acted upon over the year. 
Changes underway 
There were 3 new complaints in  2008, all concerning failures to notify national technical 
regulations under Directive 98/34 /EC. These are classified as priority cases for the 
Commission services. 6 complaints registered in 2007 and one registered  in 2006 were closed 
in 2008. 
Evaluation 
The steady high number of notifications (634) and reactions from the Commission (199) and 
the Member States (184) underlin es the importance of Directiv e 98/34/EC as a tool for the 
prevention of barriers to intra-Community trad e - and indeed for bett er regulation since it 
provides a forum for making suggest ions to improve the quality of  national legi slation. Its ex 
ante operation means that time-consuming and sometimes controversial infringement 
procedures can be avoided. 
3. COMPETITION 
3.1. Current position 
3.1.1.  General Introduction 
The infringement-related work in the competition sector focuses on 
• the monitoring of Member States' behaviour in  relation to liberalized network industries 
and financial services,  
• non-compliance with Commission recovery decisions,  
• the correct transposition and implem entation of secondary legislation.  
Most of the infringement cases handled by the Co mmission services in this sector have their 
origin in a complaint submitted by undertakings or citizens that are based on a breach of Article 86(1) EC in conjunction with Articles 81 and/or 82 EC or Articles 81, 10, 3(g) EC by 
the Member State concerned. Out of a relative ly stable number of 35-45 pending infringement 
cases, 76% are complaints, 14% of the cases concern the wrong transposition or non-communication of Directives, and 10% of the case s deal with the non-recovery of State aids 
pursuant to Art. 228 EC. 
The relatively low number of infringement cases dealt with by the Commission services in the 
competition sector can be explained, on the one hand, by the very stable acquis  – no new 
Directives in the field of competition law ha ve been adopted in 2008 – and, on the other hand, 
by the fact that most cases in the competition field derive from the infringement of Treaty provisions by undertakings (antit rust, mergers) or by Member St ates granting State aid, none 
of which constitutes an infringeme nt covered by this Annual Report. 
As in 2007, the control of the transposition of Directives in 2008 focused on 
• the Financial Transparency Directive in  the field of Stat e aid (80/723/EEC as 
subsequently amended); and 
EN 46   EN • the field of electronic communi cations, particularly with regard to the Directive on 
Competition in the Markets for Electronic Communications and Services 
(2002/77/EC). 
Proceedings pursuant to Art. 228 EC constitute another important component of the 
Commission infringement work in the competition sector as they not only seek to remedy an 
infringement of competition rules by the Member  State but also because the recovery of 
incompatible state aid is necessary to remove the distortion of compe tition resulting from the 
granting of incompatible aid. These proceedings  are initiated where a Member State does not 
comply with a Commission decision requiring the r ecovery of incompatible  state aid. In a first 
step, the Commission may refer the Member State di rectly to the ECJ pursuant to Art. 88(2) 
EC in derogation of Art. 226 EC. If the Member State still fail s to recover the aid although the 
Court has found that this failure constitutes an infringement, the Commission may refer the Member State again to the ECJ, this time pur suant to Art. 228 EC. This Annual Report only 
covers the last stage of the rec overy proceedings, i.e. from the sending of the Letter of Formal 
Notice pursuant to Art. 228 EC onwards. 
3.1.2.  Work done in 2008 
In 2008, the main focus in competition policy in  relation to State c onduct was to improve 
competitive conditions in liberalised network industries (e.g. post and telecommunication, 
electricity, electronic comm unications) and financial services and to ensure non-
discriminatory access to infrastructure, as well as full and proper transposition of legislation. 
The implementation of these priori ties is reflected in the infri ngement cases dealt with in 2008 
on which significant progress has been made over the year.  
For instance in the energy sector, the Commi ssion handled a number of complaints based on 
Art. 86 in conjunction with Art. 82 EC and inve stigated an infringement of Article 21 of the 
Merger Regulation with a view to opening up national energy markets allowing companies to 
enter and compete with incumbents. In the sa me vain, the Commission se rvices have actively 
pursued infringement cases in the field of el ectronic communications to open up the recently 
liberalised broadcasting markets and allow co mpetitors to benefit from the technological 
developments. A more detailed account of the cases handled in 2008 th at have entered the 
formal infringement procedure can be found below. 
Postal sector 
On 7 October 2008, the Commission adopted a deci sion pursuant to Art.  86(3) EC finding 
that, by extending the monopoly of the postal incumbent, Slovenská Pošta, to delivery 
services of hybrid mail, a sector which wa s so far open to competition, the Republic of 
Slovakia had infringed Art. 86 in conjunction with Art. 82 EC. It also set a one-month 
deadline to inform the Commission of the m easures undertaken to put an end to the 
infringement. As this deadline passed wit hout having informed the Commission of the 
adoption of any such measures, the Commissi on adopted on 16 December 2008 a Letter of 
Formal Notice pursuant to Art. 226 EC for non- compliance with the decision of 7 October 
2008. 
Energy sector 
In its efforts to promote competition in the recently liberalised energy markets, the 
Commission adopted a Decision on  5 March 2008 pursuant to Art. 86(3) EC concerning the 
Greek lignite and electricity markets. The Deci sion concerns the privile ged rights to extract 
EN 47   EN and exploit lignite granted by th e Hellenic Republic to Public Power Corporation S.A. (PPC), 
the former electricity monopolist. The Commission found that the granting of these privileged 
rights to PPC has created inequality of opportunity between economic operators. The 
Commission also concluded that by granting PPC th e quasi-exclusive right to exploit lignite – 
the cheapest available fuel in Greece – and th ereby enabling PPC to pr otect and reinforce its 
dominant position on the wholesal e electricity market to the detriment of its competitors, 
Greece has violated Art. 86(1) in  conjunction with Art. 82 EC. Following the Decision and in 
the course of 2008, the Commission continued to  work together with Greece on the remedies 
to be implemented to end the infringement and to ensure that PPC's competitors gain access to 
the lignite market. 
On 31 January 2008, the European Commission se nt Spain a Letter of Formal Notice for 
failure to comply with a Commission decisi on of 5 December 2007 finding that Spain had 
breached Article 21 of the Merger Regulation31 by subjecting the approval decision of the 
acquisition of control over Endesa by Enel an d Acciona to a number of conditions, thereby 
unduly interfering with the Commission's exclusiv e competence to decide on a concentration 
with Community dimension.32 As the Spanish authorities' reply to the Letter of Formal Notice 
did not remove all the Commissi on's concerns and as Spain did not take any measures to 
comply with the Commission decision of 5 December 2007, the Commission sent Spain on 15 May 2008 a Reasoned Opinion as king it to withdraw the conditions imposed on the 
takeover.
33 
Electronic communications 
In the context of an infringement procedur e in the broadcasting sector against Italy34 for 
failure to comply with the EC regulatory framework on electroni c communications, the 
Commission continued in 2008 to closely monito r the transition (switch-over) from analogue 
to digital terrestrial broadcasting. The Italian legislation regulating th e switch-over placed 
unjustified restrictions on the provision of broadcasting transmi ssion services and attributed 
unjustified advantages to incumbent analogue  operators, thereby cr eating the risk of 
reinforcing their market power in the provision of digital TV broadcasting transmission 
services. In June 2008, the Italian authoritie s adopted new amendments with the aim of 
removing the Commission's concerns expresse d in the Reasoned Opinion. The Commission 
has been in contact with the It alian authorities since then on th e elaboration of new criteria for 
the "digitization" of terrestrial television ne tworks, which should lead  to a situation where 
more frequencies will be available to newcom ers and to smaller existing broadcasters.  
                                                 
31 OJ 2004, L 24/1, available at: http://eur-
lex.europa.eu/LexUriServ/LexUriS erv.do?uri=CELEX:32004R0139:EN:NOT   
32 This case is linked to another infringement action concerning the takeover of Endesa by E.ON which 
was also made subject to a number of conditions im posed unilaterally by Spain. In this case, after 
sending a Reasoned Opinion on 7 March 2007, the Commission decided on 28 March 2007 to refer Spain to the Court of Justice pursuant to Art. 226 EC. In its judgment handed down on 6 March 2008 
(C-196/07), the Court declared Spain to be in violation of Community law by not lifting the conditions 
and thereby not complying with the Commission's Article 21 decision. 
33 On 17 July 2008, the European Court of Justice delivered its judgment on the infringement action 
brought by the Directorate General for Internal Mark et against Spain concerni ng the Royal Decree n. 
4/2006, which was the legal basis for imposing the conditions on the acquisition of Endesa. The Court 
declared the Decree incompatible with Community law. 
34 A Reasoned Opinion in this case was sent to Italy on 18 July 2007. 
EN 48   EN On 6 June 2008, the Commission sent a Letter of Formal Notice to the Slovak Republic 
concerning Section 2(6) of the Slovak Competition Act which excludes the applicability of the Competition Act in situations where the con duct of the undertakings is at the same time 
subject to sector specific ex-ante regulator y obligations, such as  in the electronic 
communications, energy or postal sectors. As a result of the provision, the Slovak national 
competition authority cannot exercise its powe rs to apply EU competition law, namely 
Articles 81 and 82 EC, and the na tional regulators' competence to apply (ex ante) regulatory 
measures cannot replace the role of competition law that is applied ex post. The Commission 
therefore considered this provision of the Compe tition Act to be incompatible with Article 10 
EC and Regulation 1/2003
35 and initiated infringement proceedings.36 
Financial services 
On 10 May 2007, the Commission adopted a decision on the basis of Article 86(3) EC finding 
that the exclusive right for the distribution of  a savings book product (Livret A) granted by 
France to three banks (Banque Postale, Caisse s d’Epargne and Crédit Mutuel) constituted an 
infringement of Article 86(1) EC in conjunction with the freedom of establishment and the 
freedom to provide services (A rticles 43 and 49 EC) due to the resulting obstacl es for French 
and foreign competitors to enter and develop the market for liquid savings in France. The decision also set a deadline to amend the le gislation within nine  months. As no such 
amendment was adopted within the prescrib ed period, the Commission sent a Letter of 
Formal Notice on 5 June 2008 with a view to ob liging France to end the infringement. As a 
result of the infringement proceedings, Fran ce opened up the distribution of Livret A on 1 
January 2009. 
Art. 228 EC cases 
On 31 January 2008, the Commission issued a Reasoned Opinion pursuant to Art. 228 EC 
against Italy for failure to comp ly with a judgment of the ECJ
37 condemning Italy for non-
execution of the Commission's recovery decisi on of 11 May 1999 regarding employment aid. 
The Reasoned Opinion informed Italy that the measures it had taken to implement the 
Commission decision were insufficient, also due - to a very significant extent - to the willingness of domestic courts to suspend the execution of recovery orders. Italy has adopted 
a series of legislative measures to speed up th e recovery proceedings by imposing strict legal 
limitations on the ability of national judges to issue suspension decisions where the recovery 
of illegal State aid is at stake. However, in sp ite of this law, the Commission to date has not 
been informed of a complete recovery of the aid. The Commission is currently assessing 
whether to refer the case to the ECJ pursuant to  Art. 228(2) EC, allowing the ECJ to impose a 
lump sum and a daily penalty paymen t until the aid has been recovered. 
In a similar case against Italy for the non-recovery  of aid to publicly-owned utility companies 
("municipalizzate"), the Comm ission sent a Reasoned Opinion on 1 February 2008 after the 
ECJ had condemned Italy on 1 June 2006 for failure to comply with the obligations stemming from the Commission's recovery decision of 5 June 2002.
38 Also in this case, the key issue is 
                                                 
35 OJ 2003 L 1/1, available at: http://eur-
lex.europa.eu/LexUriServ/LexUriS erv.do?uri=CELEX:32003R0001:EN:NOT   
36 This case raises similar issues to those raised in  a previous infringement pr oceeding against the Czech 
Republic. That case was closed in 2007 af ter the contested provision was amended. 
37 C-99/02, Commission v Italy. 
38 C-207/05, Commission v Italy. 
EN 49   EN the lack of effectiveness of recovery procedur es under Italian law whereas the new legislative 
measures adopted by Italy to remedy this situ ation have not had the desired effect on the 
overall recovery process. Therefore, the Com mission is currently assessing whether to refer 
this case to the ECJ pursuant to Art. 228(2) EC  with a view to imposing a lump sum and daily 
penalty payments on Italy. 
On 26 June 2008, the Commission issued a Reas oned Opinion against Spain for failure to 
comply with the judgment of 14 December 2006 in  which the ECJ confirmed that Spain had 
failed to fulfil its obligations under six Comm ission recovery decisions of 20 July 2000 
concerning two incompatible tax regimes.39 Although significant prog ress has been made in 
the recovery of the incompatible aid, the decisions are still not fully implemented.40 The 
Commission services are therefor e assessing whether to propose that Spain be referred to the 
ECJ pursuant to Art. 228(2) EC. 
In the area of recovery of incompatible state aid, the Commissi on has made significant 
progress with respect to the execution of rec overy decisions by Member States. For instance, 
the amount of illegal and incompatible aid re covered has increased from € 2.3 billion in 
December 2004 to € 9.3 billion at 31 December 2008 (i.e. 90.7% of the total amount to be 
recovered). Accordingly, the percentage of illegal  and incompatible aid still to be recovered at 
the end of 2008 has fallen from 75% to 9.3%. This  is due to the effi cient enforcement of 
recovery decisions by the Commission pushing Me mber States to recover incompatible aid 
from the beneficiaries.  
3.2. Evaluation based on the current situation 
Against the background of the stable acquis  in the competition law field and the relatively 
constant if not decreasing numbe r of pending infringement cases in this sector, the situation 
can be described as stable and satisfactory, no t indicating any particular problems that would 
require urgent attention or th e modification of the Commission priorities in this sector. 
Likewise, there are no new measures due to be  adopted in the near future nor relevant 
implementation plans, guidelines, expert gr oup meetings, transposition workshops or 
management networks.  
The current financial and economic crisis has no immediate impact on the Commission 
infringement work in this sector, as it cannot constitute a justification to delay recovery 
because the beneficiary became insolvent or othe rwise entered into financial difficulties. On 
the contrary, Commission services will continue  to pursue their infringement cases on the 
basis of Art. 228 EC and see to it  that all incompatible aid is recovered. This is necessary to 
ensure a level playing field between competitors  and a market of undistorted competition – a 
requirement which becomes all the more important in the current economic circumstances where companies struggle to stay  on the market even in conditi ons of undistorted competition. 
As already explained before, the Commission has achieved a very good track record in the 
recovery field. The enforcement action of th e Commission services can therefore focus on 
those instances where Member States have still not shown the desired resu lts in their recovery 
efforts, mainly because of national legislati on creating obstacles to effective recovery.  
                                                
 
39 Joined Cases C-485/03 to C-490/03, Commission v Spain. 
40 Among others, The Commission Services have requested a certification by an independent body that the 
lists of beneficiaries are completed and that the amounts recovered are correct. This certification has not 
been submitted to date. 
EN 50   EN The primary focus of attention for 2008 as set out in the 25th Annual Report - the 
improvement of the competitive conditions in the liberalised markets and in financial services 
- have been fully taken up in the infringement work of the Commission services in the sector 
of "Competition". The infringement procedures in the energy, postal and financial services 
sectors have made important progress which have – or will in the very near future - result either in the closing of the case or have alrea dy led to the send ing of a Letter of Formal Notice 
or Reasoned Opinion in 2008. Infringement acti on on the basis of Art. 86 EC complaints 
thereby has to be seen as a complementary t ool to, firstly, Community  legislation aimed to 
liberalise certain sectors of the economy (w hich is mainly adopted by other Commission 
services) and, secondly, to the di rect application of Articles 8 1, 82 and 87 EC (the assessment 
of which falls outside the scope of this Annua l Report). The infringeme nt cases dealt with by 
the Commission services in the context of lib eralisation therefore concern the residual 
problems of the granting of special or exclusiv e rights by Member States, i.e. instances of 
such rights which "survived" th e liberalisation and wh ich have not been tackled on the basis 
of the direct application of Art. 81, 82 or 87 EC.  
In the field of electronic communications and the correct implementation of the Directive on 
Competition in the Markets for Electronic Co mmunications and Services (2002/77/EC), the 
Commission services have actively monitored cha nges to the relevant provisions in the Italian 
broadcasting market and maintain its efforts to  ensure effective competition in this sector. 
With respect to the transposition of the Financial Transparency Directive (80/723/EEC as 
subsequently amended), the Commission could cl ose in 2008 infringement proceedings with 
Denmark, Italy, Luxembourg, Slovakia and Latv ia. Yet, two Member States (UK and 
Belgium) have still not fully transposed or communicated the national transposition measures 
to the Commission within the prescribed pe riod, i.e. 20 December 2006. It is therefore 
envisaged to proceed with the sending of the Reasoned Opinion to these two Member States 
in the first half of 2009 as a matter of priority. 
3.3. Priorities and planned action 
For 2009, infringement action is envi saged in sectors that have rece ntly been liberalised or are 
in the process of liberalisation, such as energy or postal services. The main focus of attention 
for the year 2009 will therefore follow closely that established for 2008: the Commission services will continue to focus on these sectors by, for instance, proceeding with the infringement procedure against Slovakia for closing a part of th e postal market to 
competition; or by ensuring, in cooperation with th e Greek authorities, that the lignite market 
is open to undertakings wishing to compete with  the incumbent in the provision of wholesale 
electricity. 
Another area of priority action in 2009 concerns the continued monitoring of the transposition 
of the Financial Transparency Directive and the Electronic Communications and Services 
Directive by Member States. The former will result in the sending of two Reasoned Opinions 
to the UK and Belgium for the non-communi cation of measures to implement the 
Transparency Directive co rrectly and in time.  
In the field of complaints-handling, the curr ent economic crisis will require the Commission 
to ensure that Member States do not violate Art. 86(1) EC by granti ng special or exclusive 
rights to their own companies in  an effort to protect nati onal markets from competition.  
EN 51   EN Finally, long standing non-recovery cases will if  necessary in 2009 be referred to the ECJ 
pursuant to Art. 228 EC with a view to impos ing a lump sum and daily penalty payments on 
the Member State concerned to ensure effective recovery of the aid granted. 
4. EMPLOYMENT,  SOCIAL  AFFAIRS  AND  EQUAL  OPPORTUNITIES 
4.1. Free movement of workers and coordina tion of social security schemes 
4.1.1.  Current Position 
4.1.1.1.  Introduction 
In the field of free movement of workers, the Commission deal s with problems linked to an 
incorrect application of the relevant provisions of  the EC Treaty and of regulations existing in 
that area. Over the years, problems have b een brought to the attention of the Commission 
through individual complaints which has led th e Commission to increa se its recourse to 
problem-solving mechanisms and it intensif ies communication to prevent problems. 
4.1.1.2.  Report on progress made in 2008 regarding free movement of workers 
1. The Commission carried out a systematic revi ew of the legislation of all Member 
States following two preliminary judgment s of the ECJ regarding the nationality 
condition for posts of master  and chief mate of ships  where the prerogatives of public 
authority are exercised by private sector workers. Out of 20 procedures opened on 
this issue in 2004, 7 were still ongoing in 2008. In three cases the Court of Justice 
confirmed its previous judgmen ts: France, Italy and Spain41. The cases against 
France and Italy were closed in 2008 afte r the nationality condition was abolished. 
After the Czech rules had been brought into line with Community law, the Commission decided to withdr aw its case from the Court. The Commission decided 
to refer one more case to the Court of  Justice (Greece) a nd 2 cases (Finland, 
Lithuania) were closed after the nati onal rules had been correctly amended.  
2. In relation to the issue of  the recognition of previ ous professional experience
 
acquired in one Member State for the purpose of access to the public sector as well 
as for determining the working conditions (e.g. salary, grade) in another Member 
State, again good progress was made. Followi ng a judgment of th e Court of Justice42, 
the Commission closed one case against Italy as the national rules had been correctly 
amended and subsequently four cases which were dealt with under this infringement 
procedure were also closed. Several other cases on this topic were closed after the 
reform of the national rules before the cases were transmitted to the Court of Justice (France – recognition of professional expe rience of doctors; Au stria – change of 
legislation concerning recognition of  professional experience completed in 
Switzerland by no longer restricting such recognition to periods completed after the entry into force of the free movement of persons Agreement with Switzerland). 
                                                
 
41 C-89/07 (Commission v. France) ECR [2008] I-00045; C-447/07 (Commission v. Italy) judgment of 
11.09.08, not yet published; C-94/08 (Commission v. Spain) judgment of 20.11.08, not yet published. 
42 Case C-371/04, Commission v. Italy, ECR [2006] I-10257. 
EN 52   EN 3. The Commission services have received ma ny queries and complaints concerning the 
residence rights  of migrant workers in the host Member State. It is partly due to the 
fact that in May 2006, Directive 2004/38/ EC effectively entered into force 
introduced new residence formalities and some important new rights (such as the right of permanent residence). As the Commission indicated in its report on the 
application of the Directive presen ted in December 2008 (COM (2008)840)
43, the 
result of the transposition was rather di sappointing. Not one single Member State has 
transposed the Directive effectively and co rrectly in its entirety. Not one Article of 
the Directive has been transposed effec tively and correctly by all Member States. 
Consequently, there were still many problems in practice regarding the correct application of the Directive. In particular , the rights of family members of migrant 
workers, who are third country nationals, were often not respected. Those cases were 
dealt with by SOLVIT centres which were ve ry efficient in this field as they could 
often ensure an appropriate and quick solution for the comp lainants (such as ensuring 
the actual granting of a residence card to a third country family member). 
4. In the situation of economic crisis, more  and more replies had to be provided 
concerning the rights of jobseekers
 – questions on how long they are entitled to stay 
in the host Member State, whether they ha ve access to social benefits and social 
assistance, and whether they are prot ected against expulsion if they are 
unsuccessfully seeking employment for a l ong time in another Member State. There 
were also a number of queries about in sufficient assistance provided by national 
employment agencies to migrant workers. 
5. Citizens' complaints concern also the violat ion of their rights as migrant workers by 
private employers such as discriminatory treatment in access to work or working 
conditions. However, as in this case th e Commission cannot intervene, it can only 
limit itself to provide the information about the migrant's rights and advise them to 
seek solutions through means available at the national level. The Commission notes 
however that enforcement of these rights at a national level is  often problematic.  
6. A recurring topic of queries was also the application of transitional arrangements  for 
workers from EU8 and EU2. There were both requests for information and complaints about the existence of restrictions as such ( by citizens) and calls to end 
them (parliamentary questions). However,  on this basis the Commission services 
have not identified complaints which would demonstrate an incorrect application of 
transitional arrangements. Therefore, on the ba sis of last year's experience, it seems 
that there was no general probl em of application of the  transitional arrangements. 
7. Employment in the public sector
 represents in many Member States an important 
part of the labour market. Therefore, the action of the Commission in this field has a 
significant effect on the migrant workers' right s; in particular there is a lot of labour 
mobility in the public teaching and health sectors. 
The Commission dealt in particul ar with the following issues: 
– abolition of nationality c onditions access for employment in the public sector in 
line with the jurisprudence of the Court on Article 39 (4) EC. 
                                                 
43 http://www.cc.cec/ sg_vista/cgi-
bin/repository/getdoc/COMM_PDF_COM_2008_0840_F_EN_RAPPORT.pdf  
EN 53   EN  
The effect of the actions of the Commi ssion carried out in this field since 1988 
was that many Member States undertook extensive reforms opening their public sectors. There are however still posts wher e access is limited to nationals even if 
the post in question does not involve th e exercise of public authority and the 
responsibility for safeguarding the general interest of the State. The difficulty of 
dealing with this issue is that it requi res case-by-case analys is in view of the 
nature of the tasks and respons ibilities covered by each post. 
– the issue of taking into account of pe riods of employment acquired in another 
Member State for the purposes of access to  the public sector and for determining 
working conditions (e.g. salary, grade) in the same way as applies to comparable 
experience acquired in the host Member State.  The Commission was very active also in this field before 2008. Due to many complaints received in the past on this issue, infringement procedures were 
carried out against nearly all EU15 Me mber States concerned (which have 
statutory rules on this issue) . Thanks to this activity al l of these Member States 
reformed their legislation. Nevert heless, the Commission received other 
complaints in 2008 which reveal remaining problems. This problem also has not yet fully been tackled in the "EU10 a nd EU2" Member States. The Commission 
received also a number of complaints re garding incorrect in terpretation or wrong 
application of the national rules even if they were reformed in conformity with Community law. In these cases, the Commission services advised the complainant to seek redress at national level a nd possibly via the SOLVIT system. The 
Commission pays particular  attention to ev idence of general problems of wrong 
application. 
– Other complaints regarding public sector  concerned: discriminatory working 
conditions (unrelated to th e issue of recognition of professional experience), no 
equal treatment in relation to the taking in to account of foreign diplomas for the 
purpose of access to the public sector a nd for determining working conditions, 
disproportionate language requirements in access to posts. 
8. Sport:
 for many years the Commission has b een dealing with the issues of 
Community law related to free movement of professional sportsmen and sportswomen. In 2008, the Commission servi ces have in particular focused on the 
following points: 
– The quotas on nationality applied in profe ssional sport: in the follow-up to the 
Bosman's ruling
44 the Commission undertook extensive action, in order to assure 
the respect of EC law. The Commissi on analysed and discussed proposals of 
European and international sport govern ing bodies, which we re aiming at the 
establishment of quotas on nationality or  regulating the tran sfers of players. 
However, given the fact that infringeme nt proceedings for breach of Community 
law in accordance with Article 226 of the EC Treaty can only be initiated against 
a Member State of the European Union, the Commission services have sometimes 
                                                 
44 C-415/93. 
EN 54   EN encountered difficulties in enforcing EU la w in Member States where a behaviour 
of private actors violating EU law coul d not be attributed to the State. 
– The Commission was also closely involved in the analysis and the discussions 
surrounding the UEFA's rule ''home grown players". Its analys is was made public 
through a Press Release45.  
9. The issue of equal treatment of third country nationals , citizens from countries with 
which the European Union has signed an international agreement. It is within this framework that the Commission has prepar ed and ensured the follow-up of the case-
law of the Court of Justice, namely in the cases Kolpak
46, Simutenkov47 and 
Kahveci48. The follow-up has consisted in answer ing individual re quests as well as 
disseminating information on the obligation for professional sport clubs to treat 
equally third country nationa ls, coming from countries with which the European 
Union has signed an international agreemen t containing an equal treatment clause. 
4.1.1.3.  Report on progress made in the field of social security coordination 
1. A number of infringements concer ning benefits for disabled persons  were closed in 
2008. In 2004, the Commission started infringe ment procedures against Finland, the 
UK and Sweden as it took the view that a number of benefits for disabled persons 
provided by these Member States have been  unjustifiably categorised as "special 
non-contributory benefits" by th e co-legislators in the fr amework of Regulation (EC) 
No 647/200549 and that these benefits were in fa ct common social security benefits 
and therefore exportable. In addition to these infri ngement procedures, the 
Commission also lodged an annulment pro cedure based on Article 230 of the EC 
Treaty (case C-299/05). In  its judgment of 18 October 2007,  the Court stated that the 
benefits concerned must be qualified as "soc ial security benefits" and not as "special 
non-contributory benefits". As the 3 Me mber States involved confirmed their 
willingness to abide with the judgment of the Court and taking into account that the 
necessary steps have been made in the Administrative Commission on Social 
Security for Migrant Workers (CASSTM) a nd the fact that the Commission did not 
receive any complaints in this respect, the Commission closed the 4 infringement procedures in June 2008. 
2. In the field of social security coordina tion, the Commission services have received 
many queries and complaints concerning the application of Regulation (EEC) No 
1408/71 and its implementing Regulation, in pa rticular, from migrant workers about 
their social security rights, e.g. which legisl ation applies to them, their entitlement to 
sickness insurance benefits and family benefits, how to apply for a pension. 
Complaints concerned residence clauses in  national legislation for various kind of 
social security benefits, incorrect applic ation of the principle of aggregation of 
                                                
 
45 IP/8/807 of 28 May 2008. 
46 C-438/00. 
47 C-265/03. 
48 C-152/08. 
49 Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005 
amending Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to the members of their families moving within the 
Community and Council Regulation (EEC) No 574/72 laying down the procedures for implementing 
Regulation (EEC) No 1408/71, OJ L 117, 4.5.2005. 
EN 55   EN insurance periods, cumbersome or incorrect  administration of cases involving a EU 
element. 
As regards sickness insurance benefits , 4 major issues have been dealt with. 
– Following the introduction of  a general sickness insu rance scheme in the 
Netherlands on 1.1.2006, the Commission services received more or less four hundreds complaints from Dutch pensioners  residing in another Member State, 
who suddenly fell under the scope of Regul ation 1408/71, in particular Article 28 
or 28a stipulating that a person in receipt  of a legal old-age or invalidity pension 
and who resides in another Member State than the one that pays the pension, is entitled to sickness benefits according to  the legislation of the Member State of 
residence on behalf of the Member Stat e that pays the pension. The latter may 
withdraw sickness insuranc e contributions from the pension paid. The Dutch 
pensioners claimed that they could not be obliged to pay Dutch sickness insurance contributions and that they were entit led to opt-out. The Commission examined 
the Dutch legislation and concluded th at it was in line with Regulation 1408/71. 
– Another issue dealt with by the Commissi on concerned a decision of the French 
sickness insurance institution to exclude EU nationals residing in France, who are 
non-active but not yet in receipt of a st ate old-age pension from access to the 
Couverture Maladie Universell e (CMU). According to th e French legislation, all 
persons residing for more than 3 months in France and who are not covered by a French or foreign legal sickness insuranc e scheme are obliged to join the CMU 
(which is a contributory sickness insurance scheme). Following the intervention of 
the Commission, the French authoritie s reconsidered their decision and 
maintained the CMU coverage of EU nationa ls residing in France for more than 3 
months. 
– The Commission services received many queri es from pre-retired British nationals 
residing in the Valencia region. Many of  them moved to Spain following the 
decision of the Valencia authorities to offer free health care to EU-nationals owning a property in the Valencia region. In  2008, the Valencia health authorities 
decided to stop the free health coverage  for non-active EU na tionals who are not 
in receipt of a state old-age or inva lidity pension. The analysis carried out 
demonstrated that as the persons concerne d are not in receipt of a state pension, 
they cannot rely on Regulation 1408/71 to cl aim sickness insurance benefits at the 
expenses of the Member State that pays the pension. According to Article 13(2)(f) 
of Regulation 1408/71, post-active persons are covered by the social security 
legislation of the Member State of reside nce, namely Spain. As a consequence, the 
Spanish social security legislation determ ines the conditions of eligibility of post-
active EU nationals to health care and no action could be initiated at Commission 
level. 
– The Commission services received many queries about the European Health 
Insurance Card (EHIC), namely how to apply for it or how to use it. The Commission opened infringeme nt procedures against Cyprus, as regards the 
eligibility conditions for receiving a Eur opean Health Insurance Card and against 
Italy where EU students who are studying temporarily in Ital y are required to 
present a form E-106 instead of a European Health Insurance Card. 
EN 56   EN As regards pensions, the Commission received various complaints about the payment of 
pensions into the beneficiary's bank account in the Member State of residence. It seems that 
several Member States have problems with su ch payments. The SEPA (Single Euro Payment 
Area) should be the answer to this pr oblem. However the Commission opened an 
infringement procedure against Belgium, where legislation does not allow the payment of the 
pension directly to an account without having the foreign bank gua rantee that it will repay the 
amount, should payments have been wrongly made. 
1. The Commission presented a proposal for a new Regulation implementing 
Regulation 883/2004 on 31 January 2006. The new simplified and modernised 
Regulation 883/2004 will apply on the date of entry into force of this implementing 
Regulation. 
2. The Commission presented three other propos als for a Regulation in the framework 
of Regulation 883/2004: 
– a proposal determining the content of Annex XI of Regulation 883/2004 (COM 
(2006) 7) 
– a proposal modifying Regulation 883/ 2004 and its Annexes (COM (2007) 376). 
– a proposal aiming at extending the pr ovisions of Regulation 883/2004 and its 
implementing Regulation to third country  nationals who are not yet covered by 
these provisions solely on the ground of their nationality  (COM(2007) 439). 
Proposals (1) and (2) has been merged by the EP and Council during th e first reading since 
both proposals relate to the Annexes to Re gulation 883/2004 and both amend some of the 
same Annexes. 
In 2008, significant progress was made in view of  the entry into application of Regulation 
883/2004 which involved: 
– the follow-up of the work done in the Council Working Group and the EP. This 
has implied in particular the deliverance of  the opinion on EP's amendments at the 
first reading and the Communication concerning the common position of the 
Council (COM(2008) 896)). 
– the organisation of the electronic exch ange of data. The implementation of 
Regulation requires that the transmission of data between institutions should be 
carried out by electronic means under a common secure network. The EESSI 
system is an ambitious and unique tool  of e-administration  and will enable 31 
countries to exchange electronically soci al security information between their 
administrations thereby fulfilling the ultimate aim of strengthening the protection of mobile citizens' social security rights. This will in turn f acilitate and speed up 
the decision-making process for the actual calculation and payment of benefits to 
citizens who move around Europe. 
4.1.2.  Evaluation of the current situation 
In 2008, the services of the Commission received for both sectors (free movement and social 
security coordination) an impressive number of letters and petitions  (3000) of European 
EN 57   EN citizens, approximately balanced between bot h sectors. Globally, th e volume of incoming 
queries and complaints is relatively stable. 
The nature of the queries remains more or identical but obviously takes into account new 
legislation such as Directive 2004/38/EC a nd the development of the economic crisis. 
The total number of infringements concerning fr ee movement of workers and social security 
coordination evolved in 2008 from 49 procedures  at the beginning of the year to 38 in 
December 2008. 25 files were closed during this year and 14 new procedures were opened. 
The priority was put on procedur es that were opened before 2006 and as result 13 could be 
closed after solutions were found to problems. Monthly decision-taking in the framework of 
infringement allowed the service to speed up and make more efficient dealing with 
procedures. 
Since the introduction of EU Pilo t in 15 April 2008 a number of complaints have been dealt 
with successfully through this instrument. This has enabled to solve problems raised by complainants without initiating an  infringement procedure. It is complemented by a system of 
filtering of letters concerning social security in  cooperation with the representatives of the 
Member States in the CASSTM put in place  in 2005. Solving problems mechanisms are 
privileged tools to favour quick and rapid so lutions to citiz ens' queries and complaints. 
The Commission services also use in their mo nitoring task the work done by networks of 
academic experts, whose reports on the applica tion of Community law in the field of free 
movement of workers and coordination of so cial security are published on the website
50. 
In view of the very high number of queries wh ich does not decrease over the years, substantial 
effort was made in terms to supplement mon itoring with improved communication tools to 
better inform the citizens about their rights as regards free movement of workers and social 
security coordination. In particular, a brochure on rights of migrant workers "Do you want to 
work in another EU Member State? Find ou t about your rights! (U pdate 2007)" has been 
made available on the website.51 In the field of social security the brochure "The Community 
provisions on social s ecurity. Your rights when moving w ithin the European Union" is 
available on the website52. The brochure "Moving in Europe . Your social security rights", 
containing information about nation al social security rights of  25 Member States, available on 
the website53. 
4.1.3.  Evaluation results - pr iorities for 2009/2010 
The monitoring work presented above cannot be st rictly planned as it depends largely on the 
number and type of complaints sent to the Commission. However, in or der to set priorities, 
                                                 
50 Network of experts on free movement of workers: 
http://ec.europa.eu/social/m ain.jsp?catId=475&langId=en ; Tress network: 
http://ec.europa.eu/social/m ain.jsp?catId=600&langId=en   
51
 http://bookshop.europa.eu/eubookshop/downl oad.action?fileName=KE3008406ENC_002.pdf
&eubphfUid=10049296&catalogNbr=KE-30-08-406-EN-C  
52
 http://bookshop.europa.eu/eubookshop/bookmarks.action?target=EUB:NOTICE:KE6404022:E
N:HTML&request_locale=EN 
53
 http://ec.europa.eu/employment_social/social_ security_schemes/national_schemes_summaries/
index_en.htm 
EN 58   EN the importance of the file, from the point of view  of its political impact  is taken into account. 
The problems which seem to be widespread in se veral Member States are also given priority. 
As described above, the horizontal exercise re garding the nationality condition for posts of 
master and chief mate of ships was very succe ssful. However, due to diversity of problems 
brought up constantly to the atte ntion of the services of th e Commission, it is not easy to 
concentrate the effort on only one particular issue.  As during the last ye ar, in 2009 particular 
attention will be paid to th e ongoing infringement procedures which have been opened more 
than 3 years ago. 
To supplement monitoring activ ities and in response to th e calls by the EPSCO Council54 and 
European Parliament55, the Commission will also step up  its efforts to provide better 
information to citizens on their rights as migrant workers. 
In the field of social security coordinati on, the Commission has launched a pan-European 
information campaign in January 2009. The objectiv e of this campaign is to raise awareness 
on the benefits of the EHIC, both among people who travel and among health professionals 
who welcome patients from other EU countries and presenting a European Health Insurance 
Card. The campaign started with 11 priority Member States identified on the basis of the 
number of cards in circulation while concerned with either ma ny tourists, or study destination 
for students. 
In the framework of the entr y into application of Regulat ion (EC) No 883/2004 and its 
implementing Regulation in 2010, the Commissi on is planning a major information campaign 
on the new social security coordination rules ta rgeting on the one hand the European citizens 
and on the other hand the social security instit utions of the Member States which have to 
apply the new provisions. 
One communications is foreseen for 2010: a co mmunication on the rights of migrant workers 
– updating and reviewing the Communication of  2002 (COM (2002) 694). Also in 2010 the 
Commission is planning to launch an information campaign on workers' rights. 
4.1.3.1.  Priorities regarding fr ee movement of workers 
The Commission services have asked Member States (members of the Technical Committee 
on free movement of workers) to provide up-to -date information on issues related to the  free 
movement of public sector workers  (in particular nationalit y condition; recognition of 
professional experience for the purposes of access to posts and for determining working conditions [e.g. salary; grade]; other legal aspect s of free movement of public sector workers 
e.g. language requirements; taking into account of diplomas in the recruitment process etc). 
Depending on the outcome of the information colle ction and also in view of the information 
contained in other reports
56 and in view of the citizens' complaints, the monitoring follow-up 
will have to be decided on in relation to the diffe rent issues at stake (possibly more systematic 
infringement procedures against Member States from 2010 onwards). 
                                                 
54 Conclusions of the EPSCO Council of 9 May 2009. 
55 Vălean report on the application of  Directive 2004/38/EC and Gacek report "Problems and prospects 
concerning European citizenship". 
56 Reports of the "Network on free movement of workers" of the last years; Report of the Human 
Resources Working Group of the European Public Administration Net work (EUPAN) on "Cross-
Border Mobility of Public Sector Workers" published in 2006. 
EN 59   EN Another primary focus for the Commission services will be to ensure the respect of 
provisions of the Directive 2004/38/EC  regarding migrant workers and their family 
members. The Commission will work together with  the Member States to make sure that the 
Directive is correctly transposed and implemen ted across the EU. In or der to achieve this 
result, the Commission will fu lly use its powers conferred to  it by the Treaty and launch 
infringement procedures when necessary. 
Open infringement procedures against Spai n and Greece where the issue of nationality 
condition for access to posts of master and ch ief mate of ships remains will be pursued. 
The Commission services have launched a study aiming to provide information on the 
involvement of the different Member States  in the organisation and the functioning of 
professional sport activities . The results of this study will permit the Commission services to 
obtain a general overview of th e question and take into consideration the possibility to 
undertake infringement actions against Member St ates, which can be held responsible for the 
behaviour of national professional sport associat ions violating the free movement of workers 
provisions. 
The Commission services will still be working in close cooperation with International and 
European governing bodies (the  FIFA and UEFA authorities)  on proposed rules which could 
have an impact on the fundamental prin ciple of free movement of workers. 
4.1.3.2.  Priorities regarding soci al security coordination 
The objective is that the new system  of coordination enters into a pplication in the first half of 
2010. In order to realise this ob jective, two Regulations were adopted. The first Regulation 
contains provisions necessary to impleme nt Regulation (EEC) No 883/2004. The second 
Regulation adopted aims at amending a number of provisi ons of Regulation (EEC) No 
883/2004 and at determining the content of Annex XI of Regulation (EEC) No 883/2004. 
 The proposal concerning the extension of th e provisions of Regulation 883/2004 and its 
implementing Regulation to third country na tionals who are not yet covered by these 
provisions solely on the ground of their national ity is based on Article 63 (4) EC Treaty and 
will be adopted according to the consultation procedure. The Social Question Working Party of the Council started its discussion of the proposal under the Czech Presidency. The EP and 
the European Social and Economic Com mittee adopted their (favourable) opinion 
respectively in July 2008 and January 2008. 
In order to prepare the entry into force of  the new system of coordination, the Commission 
has organised a number of thematic training semi nars on the different so cial security sectors 
for institutions between June and October 20 09. Together with the Member States in the 
framework of the CASSTM, the Commission intends  to publish series of Explanatory notes 
for the social security institutions at the be ginning of 2010. The purpose of these Explanatory 
notes will be to explain the background of the ne w provisions and some key concepts to social 
security institutions. 
Moreover, as regards the decision of the French sickness insurance institution to refuse access 
to the CMU for non-active EU nationals, furthe r appropriate steps s hould be taken in 2009. 
EN 60   EN 4.1.4.  Summary 
Priorities set up for 2008 have been met with many infringeme nts procedures successfully 
closed and many issues resolved through pr oblem-solving mechanisms. The forthcoming 
years should follow the same trend with the positive impact of the preventive approach based on administrative cooperation and on an in creased communication towards citizens and 
national authorities.  
Nevertheless, in view of the forthcoming en try into force of Regulation 883/04, and during 
the period of adjustment for national authorities,  it can not be excluded that more complaints 
will have to dealt with and will increase  the already workload in that area. 
4.2. Labour Law 
4.2.1.  Current position 
4.2.1.1.  Introduction 
At present, in the area of labour law, the deadline for tran sposition has expired for all 
directives in force, with the exception of  one, i.e. Directive 2008/104/EC on temporary 
agency work, for which the transpositi on deadline will expire by 5 December 2011.  
Furthermore, Directive 2009/38/EC on the estab lishment of a European Works Council or a 
procedure in Community-scale undertakings a nd Community-scale groups of undertakings for 
the purposes of informing and consulting employees (Recast)
57, as well as Council Directive 
2009/13/EC implementing the Agreement c oncluded by the European Community 
Shipowners' Associations (ECSA) and the Euro pean Transport Workers'  Federation (ETF) on 
the Maritime Labour Convention, 2006 and amending Directive 1999/63/EC58 have been 
recently formally adopted. 
The Directives applicable  in the area of labour law cover a variety of is sues and subjects, such 
as collective redundancies, European Works Council, information and consultation of employees, posting of workers in the context of th e provision of services, fixed term and part-
time work, temporary agency work, transfer of  undertakings, employer insolvency, protection 
of young people at work, and working time.  
For a list of the measures in force in that sector please refer to Annex I  
Further details can also be found on: 
http://ec.europa.eu/labour_law  
4.2.1.2.  Main activities in 2008 
Monitoring the application of labour law implies the management of infringement procedures, 
the preparation of monitoring reports and the setting up and activation of various expert 
groups. 
1. Management of infringements 
                                                 
57 OJ L 122, 16.05.2009 
58 OJ L 124, 20.05.2009 
EN 61   EN Along the lines set out horiz ontally by the Commission fo r 2008, giving priority to 
the handling of Article 228 procedures a nd of non communication procedures, efforts 
were stepped up in order to close a consid erable number of open infringements for 
non communication and non conformity. The si gnificant decrease in the total number 
of outstanding cases, as well as the consider able shortening of delays in handling 
these, were nevertheless compensated by 17 new infringements which had to be 
opened for non transposition of Directive 2005/47. Also there remains a large number of "old complaints" [29
59] concerning the applica tion of the working time 
Directive 2003/88 following the SIMAP-Jaeger rulings60 which are pending since the 
Commission proposed amendments revising this Directive in September 2004. As a 
result, the total number of outstanding infr ingements (including those related to the 
consequences of the SIMAP- Jaegerrulings) is currently 76 (compared to 78 on 
31.12.2007). Without the latter, th e total number of open infringements procedures 
would have decreased by 31%.  
With regard to the non communication cases , the infringement proceedings against 
Member States which had failed to notify the national measures transposing Directive 
2002/14/EC, establishing a general fram ework for informing and consulting 
employees in the European Communit y, continued. The case brought against 
Belgium continued under Article 228 EC, fo llowing the judgment from the Court of 
Justice61, but was closed following the adopti on of the necessary transposition 
measures. 
As regards Directive 2002/74/EC, due fo r transposition by 8 October 2005, the case 
against France continued under Article 228 of the EC Treaty following the judgment 
from the Court of Justice 62, but was closed following the adoption and notification of 
the necessary national measures  transposing the Directive. 
Regarding Directive 2003/72/CE due fo r transposition by 18 August 2006, the cases 
against Belgium63 and Greece64 referred to the Court of Justice were withdrawn 
following adoption of the necessary transposition measures, while the case against Luxembourg following the ruling of the Court of Justice 
65 continued under Article 
228 EC. 
With respect to Directive 2006/109/EC (a daptation of Directive 94/45/EC on the 
establishment of European Works Counc il following accession of Bulgaria and 
Romania), due for transposition by 1 Janua ry 2007, the remaining 5 infringement 
proceedings for non communication could be closed following the adoption of the 
necessary national measures. 
                                                 
59 However, the extent of non conf ormity in Greece in the medical s ector led the Commission to send a 
letter of formal notice covering 10 complaints concerning working hours which greatly exceed the 
limits to weekly working time set up in Directive 2003/8/EC 
60 Judgment of 3.10.2000 in case C-303/98 and judgment of 9.09.2003 in case C-151/02 
61 Judgment 29.3.2007, C-320/06 
62 Judgment 27.9.2007, C-9/07 
63 Pending case C-92/08 
64 Pending case C-82/08 
65 Judgment 9.10.2008, case C-70/08 
EN 62   EN With respect to Directive 2005/47/EC66 of 18 July 2005 on the Agreement between 
the Community of European Railways (CER) and the European Transport Workers’ Federation (ETF) on certain aspects of the working conditions of mobile workers 
engaged in interoperable cr oss-border services in the railway sector, due to be 
transposed by 27 July 2008, infringement proceedings for non communication were launched against 17 Member Stat es that had failed to take  the necessary transposition 
measures within the required time limit.  
As regards problems of non-conformity
 of the national transposition measures of 
Directives in the area of labour law, a num ber of proceedings in progress continued. 
For example, the case against Luxembourg fo r incorrect transposition of Directive 
96/71/EC ('posting of workers') conti nues under Article 228 EC following the 
judgment of the Court of Justice67. The case against France for incorrect and 
insufficient transposition of Directive 80/987/EEC, and in part icular Article 8, is also 
still open.  
2. Monitoring reports 
In order to have a comprehensive picture regarding labour law in Member States, a 
series of studies were commissioned, with a vi ew to taking stock of the state of play 
regarding the transposition and application in the nati onal legal orders of EU 10 
member States of all labour law directives. The final output of this exercise, launched 
in 2005 (see previous reports), consists in a series of reports, which will be 
completed with reports concerning Bulgar ia and Romania (for which the necessary 
studies were commissioned at  the end of 2008) expected fo r the second semester of 
2009. 
The contents of these reports have in the meantime started to be used in recently 
published implementation reports require d by Directives. An example is the 
Communication on the review of the application of Directive 2002/14/EC 
(information and consultation of workers) in the EU68, and an accompanying Staff 
Working Document69. The analysis has enabled the Commission to identify a 
number of outstanding issues where correct and full transposition of the Directive's requirements by Member States may be at st ake, necessitating further clarification or 
verification. These issues raise either quest ions of interpretation of the Directive or 
doubts as regards the compliance of implemen ting measures with the Directive. As 
indicated in the implementation report, the Commission intends to examine such issues more closely in co-operation with the national authorities of the Member States concerned. 
Also, the importance of occupational pens ion schemes increases and the employer's 
insolvency is a risk associated to thei r operation, the implem entation of Article 8 
(concerning old-age benefits under s upplementary company or inter-company 
pension schemes) and related provisions  of Directive 80/987/EC ('employer's 
insolvency') was examined in a Staff Working Document
70. Most Member States 
                                                 
66 OJ L 195, 27.7.2005, p. 15–17 
67 Judgment 19.6.2008, case C-319/06, Commission vs Luxembourg. 
68 COM (2008) 146 final, 17.3.2008 
69 SEC (2008) 334 
70 SEC (2008) 475 of 11 April 2008. 
EN 63   EN having in place specific measures aimed at meeting the requirements of Article 8 of 
Directive 80/987/EEC, the results of the examination and analysis revealed nevertheless that, in certain cases, issues can  be raised as regards the extent to which 
some of these measures are su fficient to protect the intere sts of employees and retired 
persons in the event of insolvency of the employer. Further investigation is therefore 
needed in order to address the following issues: 
– how to protect employees and retired pe rsons against the risk of under-funding of 
the pension schemes, and to what extent;  
– how to guarantee any unpaid contribu tions to the pension schemes;  
– how to deal with cases where the supplem entary pensions scheme is managed by 
the employer himself. 
As a follow-up of this Staff Working Document, the Commission services will 
pursue this investigation th rough bilateral contacts with  Member States and will 
launch a further study on th e above topics in 2009. 
Following the publication of a St aff Working Document in 2006
71 concerning the 
implementation of Directive 99/70 on fixed-term work by EU-15 countries, a new Staff Working Document was published in  2008 on the implementation of this 
Directive in EU10
72 to have a full picture regarding the application of that Directive. 
Also in this case, the analysis has enab led the Commission to identify a number of 
outstanding issues where correct and full transposition of the Directive's requirements by Member States may be at st ake, necessitating further clarification or 
verification. The Commission intends to examine such issues more closely in co-operation with the national authoritie s of the Member States concerned. 
3. European network of legal expe rts in the field of labour law 
To complete the horizontal analysis of conformity of labour law, the European 
Network of Labour Law Experts wa s created as of 23.12.2007 and produced 
quarterly flash-reports providing information on recent key legal developments in the 
area of labour law, particularly in those areas  that are most relevant for the control of 
EU legislation. This systematic reporti ng and monitoring of recent developments, 
carried out under Commission supervision allowed the Commission services to 
identify problems encountered in the na tional legislation, its application and 
administrative practice, and to act in  a preventive manner,  if necessary.  
4. Strengthening pro-active co-ope ration : committee of experts 
Moreover, as regards the posting of workers Directive , in view of the problems 
encountered by companies willing to post workers, with authorities in another 
Member State, and following an extensive monitoring exercise carried out in 2006 
and 2007 with respect to application measur es, including controls and administrative 
cooperation (of which the outcome wa s presented in the Commission's 
Communication of 13 June 2007 'Posting of  workers in the framework of the 
                                                
 
71 SEC (2006) 1074, 11.8.2006. 
72 SEC (2008) 2485, 17.9.2008 
EN 64   EN provision of services: (maximising its be nefits and potential wh ile guaranteeing the 
protection of workers73 and a attached Staff Working Document74) on 3 April 2008, 
the Commission adopted a Recommendation on enhanced admini strative cooperation 
in the context of posting of workers in th e framework of the provision of services75 
as a first, concrete follow-up of the measures indicated in the June 2007 
Communication. This Recommendation calls on national governments to take urgent 
action to remedy shortcomings in the im plementation, application and enforcement 
of the legislation pertaining to posting of  workers through better cooperation between 
national administrations and improving access to information. Furthermore, following endorsement of the main points of this Recommendation by Council in its 
conclusions on 9 June 2008, the Commi ssion adopted a Decision setting up the 
Committee of Experts on Posting of Workers
76 on 19 December 2008. 
4.2.2.  Evaluation based on the current situation  
The importance of labour law for workers in Member States, as well as its importance for the 
perception of the European Union as a whole, has justified a horizontal anal ysis of the 
implementation of the Directives in Member St ates. Thanks to that systematic, horizontal 
analysis of the implementati on of all labour law Directives , launched in 2005, and to the 
contribution of the experts network and other ex pert groups, the Commission has a fairly good 
view of the legal situation in all Member St ates as regards the implementation of those 
Directives. While, by and large, all Directives are now transposed in all Member States, and 
the Commission has made visible progress in 2008 to prioritise and accel erate the handling of 
open infringements,, there are still a number of critical areas where the application of Community law is far from satisfactory.  
First and foremost, this is the case with the Working Time directive, where the law or legal 
and administrative practice in many Member Stat es does not comply with jurisprudence or 
certain provisions of the Directive 2003/8 8 (particularly as regards on-call time, 
compensatory rest, multiple contracts, doctors  in training, public sector workers and the 
individual opt-out). A very subs tantial action is needed in order to clarify the application of 
the Directive, ensure effective conformity across the EU and provide a response to the 
numerous complaints introduced by citi zens or professional organisations.  
Moreover, the implementation of Directive 96 /71 concerning the posting of workers in the 
framework of cross-border servi ce provision has raised  some critical issu es, given the variety 
of industrial relations systems, particularly in the li ght of recent case-law (Viking-Line, Laval, 
Rûffert and Commission v/ Luxembourg) whic h will be necessary to follow closely. The 
analysis of the implementation of Directives  99/70 on fixed-term work and 97/81 on part-time 
work, both resulting from agreements between  social partners, revealed a number of 
deficiencies which have to be addressed via EU Pilot or  administrative letters.  
Finally, the current economic crisis has put to a se vere test those legal provisions which aim at 
providing protection to workers in  the event of major restructuri ng operations. This is the case 
in particular of the Directives on informa tion and consultation of workers, collective 
dismissals, transfer of undertak ings and the protection of employ ees in the case of insolvency. 
                                                
 
73 COM (2007) 304 final 
74 SEC (2007) 747 
75 OJ 2008 C85/1, 4.4.2008; see also corrigenda OJ C89/18 of 10.4.2008 
76 OJ 2009 L8/26 
EN 65   EN It seems justified to inquire whether the objectives of such provisions have been effectively 
reached.  
4.2.3.  Translation of the evaluation into  priorities and actions in 2009 
Four implementation reports currently under prep aration are expected to be adopted in 2009. 
Such reports may identify situations in Member States deserving further examination and eventually may justify the launch of in fringements: a Commission Report on the 
implementation of Directive 94/33 (Young People at Work), of Directive 91/383/EC (Health 
and Safety of a-typical workers), of Dir ective 2003/72/EC (Employee Involvement in the 
European Cooperative Society) as well as of  the Article 25 of Directive 2003/88 (working 
time of fishermen). 
The Commission intends to bring further clar ity to the implementation, application and 
enforcement of the Directive 96/71 on posting of workers. It will launch a study on the legal aspects and another on the economic and social impact of the Directive, and will promote 
exchange of information and debate on the impl ementation of the Directive in the framework 
of the Expert Committee which was launched in  line with the Commission Decision of 19 
December 2008. It will also monitor closely th e legal changes implemented in some member 
States in response to th e recent Court rulings.  
On the basis of the contents of the implement ation reports drafted following examination of 
the legal situation in the Member States af ter the 2004 enlargement,  follow-up actions of 
clarification with respect to the fixed term  Directive 99/70, as well as part time  Directive 
97/81 will be carried out th rough bilateral contacts ( EU-PILOT  or administrative letters) .  
 It is also the intention to proceed, in 2009, to fu rther analysis and examin ation of a number of 
problems/issues identified in the contex t of Directive 2002/14  (information and 
consultation). Moreover, in the conclusions of the Communication on the review of the 
application of Directive 2002/14/EC , the Commission indicates that  it intends to take further 
action aimed at facilitating correct enforcement of the Directive.  
 Knowledge by management and labour of their resp ective rights and obligations in the area of 
information and consultation is an indispensa ble prerequisite for the full and effective 
exercise of these rights in the workplace. Therefore Commission also intends to undertake 
action geared to awareness-raisi ng, as well as to promote excha nge of best practices and to 
enhance capacity-buildin g of all stakeholders, by way of seminars, training courses, studies 
and financial support for projects submitted by representatives of employers and employees. 
In addition, in 2009 an expert working group w ill be established to discuss a number of 
outstanding issues re the application of the insolvency Directive (Council Directive 
80/987/EEC and its codified successor Directive European Parliament and Council Directive 
2008/94/EC) in transnational situations, taking in to consideration the clarifications given by 
the ECJ in its judgment in th e Holmquist case (C-310/08), as well as address the issue 
of administrative cooperation requi red by the Directive. The prot ection to be provided to 
employees and retirees of insolvent companie s where these are covered by complementary 
pensions deserves special attention and will be the subject of an evaluation study in 2009 
Last but not least, with respect to planne d actions for 2009, the Commission will strengthen 
preventive measures by providing technical assistance to the Memb er States in the process of 
transposition and implementation of the recently adopted Dir ective 2008/104/EC on 
temporary agency work. For this purpose a group of governmental experts will be set up. The 
Commission will also establish a group of e xperts to assist Member States in the 
EN 66   EN implementation process of the recast European  Parliament and Council Directive 2009/38/EC 
on European Works Councils adopted on 23 April 2009.   
4.2.4.  Summary 
With all the ongoing initi atives, including the establishment of several expert groups, the 
Commission has increased capacity to analyse a nd identify problematic issues, pursue its 
activities of control of Community legislation as  well as to strengthen the range of preventive 
measures available. 
This should further improve the implementation, application and enforcement in practice of 
the 'acquis' in labour law, with a special focus on the critical areas iden tified above. However, 
the sensitive and often highly controversial na ture of the issues at stake may hamper 
achieving effective progress. 
It is expected that the launc hing of new procedures, including through the EU-Pilot, may 
increase the workload co nsiderably, which may requi re further prioritization. 
4.3. Health and safety at work 
4.3.1.  Current Position 
4.3.1.1.  Introduction  
Health and safety at work is the most deve loped corpus of legisl ation in the field of 
employment and social affairs. It s application over the last 15 years has, inter alia, contributed 
to a substantial reduction of the accidents at work. 
4.3.1.2.  Main activities in 2008 
Monitoring the application of health and safety  at work law implies different activities at 
various levels such as initiating and follow-up of infringement procedures, management of 
complaints, involvement of committees and expe rt groups, drafting and adoption of practical 
implementation reports and non-binding good practi ce guides and initiating legal measures if 
necessary. 
1. Management of infringements: 
As for infringements it should initially be highlighted that during 2008 it was 
possible to close all infringement  proceedings for non communication. 
– Non-communication infringement cases: 
The case against Austria for failure to transpose Directive 2003/18/EC was 
withdrawn upon notification of  the necessary transpositi on measures, although it had 
already been referred to the Court of Justice. 
In all the 8 cases against Austria, Czech Republic, Germany, Denmark, Hungary, 
Italy, Luxembourg and the United Kingdom fo r the failure to transpose Directive 
2006/15/EC establishing a second list of indicative occupati onal exposure limit 
values, the necessary transposition measures  were received and thus the cases could 
be closed. In the cases against Germany, Luxembourg and the United Kingdom a 
EN 67   EN reasoned opinion had already been sent, while in the Austrian case, a decision had 
already been taken to refer the case to the Court of Justice. 
– Non-conformity infringement cases: 
Given the persistent problems of non-conf ormity of the transposition of the 
framework directive 89/391/EEC and of its individual directives, many proceedings 
in progress have co ntinued. For example, the case against Germany related to the 
responsibility of the employer for accidents at work was closed. In the case against 
France concerning the application of the provisions of Directive 89/391/EEC to 
RATP and SNCF, the Court of Justi ce ruled in favour of the Commission77 and the 
proceedings continued. In the case against Poland on this directive, a reasoned opinion was sent. In November 2008, Poland changed the legislation in accordance  
with the reasoned opinion and the infringe ment procedure could subsequently be 
closed at the beginning of 2009. 
In relation to individual directives, in th e proceedings against Italy on Directive 
92/57/EEC on the construction sites, the C ourt of Justice ruled in favour of the 
Commission
78 indicating that the Italian transpos ition of Article 3(1), which provides 
for an obligation to appoint one or more c oordinators for safety and health matters 
for any construction site on which more th an one contractor is  present, was not 
conform. In addition, infringement proceedings against Austria were opened concerning this Directive, while the procedures against Denmark and Sweden followed their course. 
The analysis of the national measures transposing Directive 93/103/EC continued 
and Italy (through the EU Pilot project) a nd Greece were asked to provide several 
clarifications and an infringement pro ceeding was launched against Spain in 2009.  
The monitoring activities performed by the Commission in 2008 have not been 
limited to the infringements proceedings since the work on the analysis of the 
national legislation has also be en continued; for instance cl arifications were asked to 
Italy as regards the transposition of certa in provisions of Directive 2003/18/EC on 
asbestos. 
2. Complaints management  
During 2008, more than 10 complaints concer ned Health and Safety at Work. Some 
of these complaints resulted in the launc hing of infringement procedures. In 
particular, a letter of formal notice was se nt to Sweden in respect of a complaint 
regarding the implementation of Direct ive 89/391/EEC. Following a complaint, a 
complementary letter of formal notice was also sent to Denmar k concerning several 
points of Annex IV to Directive 92/57/ EEC, in the framework of the on-going 
infringement proceedings con cerning Directive 92/57/EEC. 
Furthermore, a letter of formal notice was sent (in 2009) to the UK, following a 
complaint concerning the transposition of Article 3 of Directive 2003/18/EC. 
                                                
 
77 Case C-226/06, judgment of 5 June 2008. 
78 Case C-504/06, judgment of 25 July 2008. 
EN 68   EN 3. Management of the acquis through committees and expert groups 
The Committee of Senior Labour Inspect ors (SLIC) assists the Commission on 
problems relating to the enforcement of Community law on health and safety, and encourages its effective enforcement, notably by means of a closer cooperation 
between the national labour  inspection services.  
In order to allow the members of the Comm ittee to engage in a practical, interactive 
exchange of experience and opinion, the number of its members per Member State 
will be reduced from two to one as fr om 1 January 2010 (Commission Decision 
2008/823/EC of 22 October 2008, OJ L 288, 30.10.2008, p. 5). 
One mechanism to fulfil its tasks is the rapid exchange of inspection-related 
problems and solutions amongst the EU-27 Me mber States and EFTA countries. In 
2008, the Committee developed further its use of the Commission's CIRCA extranet as a practical information exchange system. The Committee may expand its use to support discrete topics such as chemical s ubstances and machiner y. In the latter case, 
to enhance its work on market surveillan ce, the Committee will promote the sharing 
experience on compliance and enforcement about issues identified at the national 
level with the Machinery Directiv e and on the use of machinery.  
4. Practical Implementation Reports 
During 2008, a Communication was adopted by the Commission to the Council, the 
European Parliament, the European Economic and Social Committee and the 
Committee of Regions on the pr actical implementation of H ealth and Safety at Work 
Directives 92/57/EEC (temporary and mobile  sites) and 92/58/EEC (safety signs at 
work)
79. 
In addition, during 2008, a draft was fi nalised for a Communication from the 
Commission to the European Parliament, the Council, the European Economic and 
Social Committee and the Committee of Regi ons on the practical Implementation of 
the provisions of the Health and Safety  at Work Directives 93/103/EEC (fishing 
vessels)  and 92/29/EEC (medical trea tment on board vessels). 
Also during 2008, a draft was finalised for a Communication from the Commission 
to the European Parliament, the Council, the European Economic and Social Committee and the Committee of  Regions on the practical  Implementation of the 
provisions of the Health and Safety at  Work Directives 92/91/EEC (mineral-
extraction through drilling)  and 92/104/EEC (surface  and underground mineral 
extraction). 
5. Information and risk awareness raising campaigns of Senior Labour Inspectors 
Committee (SLIC) 
The European campaigns launched under the initiative of the Senior Labour 
Inspectors Committee (SLIC)
80 largely contribute to better compliance in the field 
with EU legislation. European campaigns ar e indeed an effective means by which the 
                                                 
79 COM(2008) 698 of 6 November 2008. 
80 Commission Decision 95/319/EC of 12 July 1995, OJ L 188, p. 11. 
EN 69   EN labour inspection services can  cascade a common message  to stakeholders. In 2008, 
the Member States of the SLIC designed and delivered a joint-initiative targeting the risk of injury from the manual handling of loads in the construction and retail trade employment sectors. The campaign was s upported by straightforward brochures and 
posters, available free on the Internet, toge ther with an e.learning toolkit about risk 
assessment and practical ways to avoid and reduce the risk of injury (available on the 
web site of the European Agency for Safety and Health at Work). 
6. Non-binding good practice guides 
In 2008 the Commission has drawn up a practic al non-binding guide in order to help 
the employers, and in particular those from  SME's, to implement the provisions of 
Directive 2003/10/EC
81 dealing with the risks ar ising from noise at work. 
7. Enlargement 
During 2008, works continued as regards the EU enlargement area, namely as far as 
health and safety at work issues are concerned in EU candidate and potential 
candidate countries. Several tasks in this respect were performed during 2008 inter 
alia on the analysis of the Croatian legisl ation with the health and safety at work 
acquis, on the contributions provided to the Annual Progress Reports, on the 
eligibility of certain app lications for TAIEX funding, on  the analysis of certain 
projects under Instrument of Pre-Accession assistance. Participation was ensured in 
bilateral meetings with Turkey, FYROM, Croatia, Albania (twice) and Serbia to cover the aspects of health and safety at work and cont ributions were made to the 
bilateral meetings with Bosnia and Her zegovina, Kosovo, Montenegro. Participation 
was also ensured in several training session s/seminars dedicated to the acquis in the 
field of health and safety at work in ca ndidate and potential candidate countries. 
All these initiatives constitute important prevention instruments aiming at ensuring a 
complete and correct implementation of the acquis by the candi date and potential 
candidate countries. 
4.3.2.  Evaluation of the current situation 
Accidents at work and work-related diseases  are a heavy burden in social and economic 
terms, and action to improve health and safety standards at work offers great potential gains 
not only to employers, but also to in dividuals and society as a whole. 
It is essential that the Community acquis is imp lemented effectively in order to protect the 
lives and health of workers and to ensure that the companies operating within the large European market are placed on an equal footing. 
The implementation of the EU directives in the fi eld of health and safety at work is bearing 
fruit at European level. According to Europ ean Statistics on Accidents at Work methodology 
(ESAW), the latest statistics show that less th an 4 million accidents at work resulting in more  
than three days of absence from work occurred in the EU-15 in 2006. In absolute terms, this 
corresponds to a 33.3% decrease compared to 1995. For fatal accidents, this trend is more 
marked with a reduction of 40.3% over the same period. In terms of incidence rate (per 100 
                                                
 
81 OJ L 42, 15.2.2003, p. 38 
EN 70   EN 000 workers) for accidents in the nine main br anches of economic activity of the employer 
(NACE), non-fatal accidents at work were down by 29.4% against 40.7% for fatal accidents. 
Priorities set for 2008 were la rgely met but it should be borne in mind that the work 
performed in the EU enlargement domain is time consuming and demanding as well as certain tasks to be performed within short deadlines. These activities therefore had a certain impact 
on the priorities set regarding the control and mo nitoring of the application of Community law 
in the EU Member States.  
4.3.3.  Evaluation results (priorities  and planned actions for 2009) 
The Resolution of European Parliament of 15 January 2008 on the Health and Safety Strategy 
2007-2012
82 expressly requests to the Commission to intensify its work on the monitoring of 
the transposition of the health a nd safety at work directives.  
The analysis of the conformity of  all the health and safety at work directives should continue 
to be indicated as a priority issue as an incorrect transposition could be a source of 
occupational accidents or diseases, with particul ar serious negative consequences in terms of 
human lives or physical integrity and/or impor tant economic impact for the society and the 
concerned enterprises.  
However, as the analysis of the transposition of all provisions and annexes of the health and 
safety at work directives is a highly time-cons uming task requiring hi ghly specialised human 
resources (not only lawyers but also doctors, chemical engineers, mines engineers, etc.), a 
prioritisation was essential. 
Priority continued to be given to the analys is of the conformity of the transposition of 
Framework directive 89/391/EEC, which establishes the main pr inciples of prevention of 
occupational risks that a pply to all sectors of activity. To continue these works as regards the 
correct transposition in the 12 new Member Stat es will remain a priority for the Commission, 
which will launch infringement proceedings when necessary. 
Work on the analysis of the conformity of Fr amework Directive 89/391/EEC is particularly 
complex and time-consuming due to the high nu mber of pieces of legislation communicated 
by Member States to the Commission as implemen ting measures (eg. in some cases more than 
70 separate measures). Another main priority for 2009/2010 will continue to be the analysis of 
the conformity of 5 individual directives related to the highe st risk sectors: construction 
(directive 92/57/EEC), maritime sector (dir ectives 92/29/EEC and 93/103/EC) and extractive 
industries (directives 92/ 91/EEC and 92/104/EEC).  
These priorities are in line w ith the main objectives of th e Community Strategy 2007-2012 on 
Health and safety at Work83 in particular those of reducing occupational accidents and 
diseases and guaranteeing the proper implementation of EU legislation. 
In particular, during 2009, the Communicat ion from the Commission on the practical 
Implementation of the provisions of the Health  and Safety at Work Directives 93/103/EEC 
(fishing vessels)  and 92/29/EEC (medical treatment on board vessels) will undergo inter-
service consultation and will be submitted to the Commission for adoption and subsequently 
                                                 
82 Resolution 2007/2146 
83 COM(2007) 62 
EN 71   EN to the European Parliament, the Council, the European Economic and Social Committee and 
the Committee of Regions. 
In addition, the Communication from the Comm ission on the practical Implementation of the 
provisions of the Health and Safety at Wo rk Directives 92/91/EEC (mineral-extraction 
through drilling) and 92/104/EEC (surface and u nderground mineral extraction) will undergo 
inter-service consultation in 2009 and will be submitted to the Commission for adoption and 
subsequently to the European Parliament, th e Council, the European Economic and Social 
Committee and the Committee of Regions. 
It should also be noted that a meeting will be  held in October 2009 to discuss with Member 
States the transposition of Directive 2006/25/EC (artificial optical radiation) for which the 
period for transposition expires in April 2010. 
4.3.4.  Summary 
In general the difficulties with establishing and following a rigid prioritisation for the 
monitoring of EU directives in the field of health and safety at work should be highlighted.  
On the one hand, Member States continuously a dopt new national legislation in the field of 
Directive 89/391/EEC and its i ndividual directives, requesti ng the Commission to focus on 
these new changes that often are not officially communicated to it. This makes the conformity 
analysis a never ending exercise. On the other hand, the dialogue estab lished with the national 
administrations determines the follow-up a nd calendar of the procedure. Moreover, 
complaints, petitions, Parliament ary questions or mail from the citizens in certain cases raise 
non-conformity issues that need to be urgently  investigated, requesting an adaptation of the 
work plan.   
The acquis in the field of health and safety at work constantly needs to be up-dated or 
completed with a view to adapting it to new risks or to technical changes. Furthermore, the acquis is subject to periodical reviews as regards possibilities  for simplification. The current 
exercise on the measuring of administrative co sts that includes two directives (Framework 
Directive 89/391/EEC and Construction sites directive 92/57/EEC) is particularly time-
consuming for lawyers and has a serious impact on the progress of other ac tivities in the area.  
In addition to this, the workload for legal expe rts is increased by replies to EP and citizens 
questions and by multiple requests for briefings wh enever a fatal accident at work attracts the 
attention of media. These reasons, as well as short-term changing political considerations 
evolving make out-of-date any rigid prioritisation. 
4.4. Antidiscrimination and gender equality 
4.4.1.  Current position  
4.4.1.1.  Introduction 
The legislative domain of anti-discrimina tion and gender equality represents the 
highest number of infringement proceedings within the whole sector of employment 
social affair and equal opportunities (i .e. over 100 currently). The handling and 
monitoring of all these cases is a heavy wo rkload and in future when at all possible 
alternatives to infringement proceedings will be initiated.  
EN 72   EN 4.4.1.2.  Report on progress as regards anti-discrimination 
1. Monitoring of infringements 
All the Member States have  now transposed Directives 2000/43/EC and 2000/78/EC 
based on Article 13 EC. Infringement pr oceedings remain open for incorrect 
transposition of these Directives. 
At the end of 2008, the situation is as follows: 
– Concerning Directive 2000/43/EC, two Member  States have received a letter of 
formal notice (AT and DE), two Member States have received a complementary 
letter of formal notice (NL and MT) and 16 Member States ha ve been notified a 
reasoned opinion. 
– Concerning Directive 2000/78/EC, 6 Member  States have received letters of 
formal notice (LT, PT, SK, BE, AT and DE), 4 have received complementary letters of formal notice (LV, LT, PL a nd UK), 9 have received reasoned opinions 
and one has received a comp lementary reasoned opinion. 
In this field dealing with fundamental rights, the Commission departments made a 
detailed monitoring of national laws. Th is might explain the high number of 
infringement cases, together with other f actors, in particular the novelty of the 
legislation, the complexity of transposing hi ghly complex notions (direct and indirect 
discrimination, reasonable accommodation, etc.). 
The infringement proceedings raise complex issues, connected with different areas of 
law, as the Directives (essentially Direct ive 2000/43/EC) have a large material scope 
which led to the organisation of bilatera l meetings with national authorities and 
brought clarification on a number of issues. 
2. Preparation of legislation 
The Commission has adopted in July 2008 a proposal for a Directive implementing 
the principle of equal treatment between pe rsons irrespective of religion or belief, 
disability, age or sexual orie ntation outside employment. 
The proposal mirrors the material scope  of Directive 2000/43/ EC and builds upon 
legal notions and standards used in this Directive as well as in Directive 2000/78/EC. 
From this point of view, the monitoring of  the conformity of Directives 2000/43/EC 
and 2000/78/EC has an evident impact on the negotiations since the Commission is 
challenging some interpretations at national level of notions also  being discussed in 
the context of this proposal. It is theref ore necessary to ensure  a separation between 
the two exercises. 
4.4.1.3.  Report on progress made regarding gender equality 
1. Monitoring of infringements procedures 
The proceedings concerning non-communica tion of the national measures to 
transpose Directive 2004/113/EC have progr essed. Six Member States have not yet 
EN 73   EN communicated their national measures and the infringement proceedings remain 
therefore open. In 3 cases, the issue has been  already referred to  the European Court 
of Justice (CZ, EL and UK), in two cases , a reasoned opinion ha s been notified (PL 
and Estonia) and in one case, a letter of formal notice has been sent to the Member 
(Latvia). 
As regards Directive 2002/73/EC, one infringement procedure for non 
communication remains open, against Belgiu m. Following the judgment of the Court 
of Justice of 17 July 2008, a procedur e under Article 228 EC has been engaged. 
As regards the monitoring of the confor mity of national measures transposing 
Directive 2002/73/EC, the Commission depart ments made a detailed monitoring of 
national laws. This might explain the high nu mber of infringement cases, together 
with other factors, in part icular the complexity of transposing complex notions. 
The situation of infringement proceedings is as follows: 
– 11 Member States have received a letter of formal notice (CZ, DE, DK, FR, IE, 
LV, PL, PT, SE, SK and UK). 
– One Member State has received a compleme ntary letter of formal notice (NL). 
– 8 Member States have received reasoned opinions (AT, EE, FI, HU, IT, LT, MT 
and SI). 
Following the first two stages of the infri ngement proceedings, the dialogue between 
the Member States and the Commission was initiated and new te xts of law adopted 
by certain Member States which were scrutinised. 
Concerning the monitoring of Directive 96/34/EC, two cases have been closed 
following the reply of the Member States to the letters of formal notice (CY, LV) three remain open (MT, HU and EE). 
There are currently five cases under Article 228 of  the EC Treaty. 
2. Preparation of new legislation 
The Commission has adopted in October 200 8 two legislative proposals to review 
Directives 92/85/EEC and 86/613/EEC.  
Both proposals are to be adopted by the Eu ropean parliament and the Council under 
the procedure laid down in Article 251 (co-decision). 
At this stage, it does not seem likely that any of the texts is a dopted after the first 
reading. Inter-institutional negotiations s hould therefore continue during the whole 
year 2009. 
Recently, the  European cross-industry social pa rtners (ETUC, BUSINESSEUROPE, 
CEEP and UEAPME) concluded an agreemen t which revises their former agreement 
on parental leave of 14 December 1995. U pon, their request, the Commission will 
adopt a proposal for a Directive giving le gal effect to the new agreement during 
summer 2009. 
EN 74   EN The effectiveness of the existing Community  law concerning the principle of equal 
pay for equal work or work of equal valu e has been analysed in 2008. If necessary, 
legislative proposals could be made  in 2009, based on this analysis. 
4.4.2.  Evaluation of the current situation 
The co-existence of three legi slative proposals in discussi on and a high number of 
infringement proceedings had some negative implications with regard to keeping deadlines for dealing with infringement s. On the other hand, the simultaneous 
challenge of the transposition of certain provisions by Member States and the inter-institutional discussion of similar provisions in the new proposals presents the risk of 
"contamination" that should be prevented. 
4.4.3.  Evaluation results (priorities  and planned actions for 2009) 
The number of legislative proposals on  the table and the high number of 
infringement cases open impose a prioritisati on of the work in that field. On that 
basis, in addition to the in ter-institutional negotiations of the legislative proposals, 
the main priorities for 2009 will be: 
– Cases under Article 228 EC; 
– Proceedings for non-communication of nati onal measures to transpose Directive 
2004/113/CE; The deadline for trans position of Directive 2004/113/EC 
implementing the principle of equal treatment between men and women in the access to and supply of goods and servic es was 21 December 2007. Its Article 16 
states that the Commission shall presen t a report on the practices of Member 
States concerning insurance. The Co mmission announced, during the negotiations 
in Council of this Directive, its inten tion to set up a working group composed of 
representatives of Member States and stakeholders. The group held its first 
meeting beginning of 2009 . 
– Proceedings for non-communication of nati onal measures transposing Directive 
2006/54/EC;  The monitoring of the conformity of  national measures to transpose 
Directive 2006/54/EC will start in the s econd half of 2009. Since this Directive 
recasts several existing Directives but does not introduce very significant substantial changes, it is expected that the monitoring will lead to only a small 
number of infringements 
– Cases concerning the transposit ion of Directive 96/34/EC; 
– Cases concerning the transposit ion of Directive 2002/73/EC; 
– Cases concerning the transposition of  Directives 2000/43/EC and 2000/78/EC. 
Close cooperation with National Equality Bodies
 and the use of tools like EU Pilot  
could allow a quicker handling of compla ints. Furthermore, at national level, 
Equality Bodies which contribute to a be tter application of Community law in 
Member States could lead to a reduction of the number of complaints lodged by 
citizens with the Commission. 
EN 75   EN In addition, it has become evident th at bilateral discussions with national 
administrations  regarding the implementation of Directive 2000/43/EC are a useful 
tool to better understand the issues at stake and the complexities of each national legal framework. These bilateral meetings will continue being organised in 2009 and 
it is expected that following the dial ogue between the Member States and the 
Commission, the Commission will be able to close a substantive number of cases and 
reduce the number of remaining grievances.  
It should be stressed that, st ill in the field of gender equality, Directive 2006/54/EC 
(the Recast Directive) had to be transposed by Member States by 15 August 2008 at the latest. Nevertheless, according to Artic le 33 of the Directive "Member States 
may, if necessary to take acc ount of particular difficulties, have up to one additional 
year to comply with this Directive". Si nce there is no obligation to inform the 
Commission of the need to use this a dditional period, the Commission will launch (if 
needed) infringement proceedings for non-communication of the national measures to transpose this Direct ive only after 15 August 2009. 
4.4.4.  Summary 
In gender equality
, although most of the legislation has been in place for a long time, 
two Directives are recent (2004/113/EC  and 2006/54/EC). The monitoring of the 
transposition is very likely to lead to  an increase of the number of cases open. 
On the other hand, it is expected that most of the cases concerning non-
communication of national measures for Di rective 2002/73, as well as some cases 
concerning Directive 2002/73 will be closed in 2009.  
The legislative proposals recently adopted  essentially update and modernize the 
existing legal framework, with less substa ntial changes in this area and should 
therefore imply less infringement proceed ings. In addition, it is expected that 
national Equality Bodies will  contribute to a reduction of  the number of complaints 
concerning this area of Community law. 
As far as anti-discrimination  is concerned, the Commission has adopted a proposal 
for a new Directive on the 2nd July 2008. Once adopted, th e Directive will extend the 
protection outside employment for age, re ligion, sexual orientation and disability. 
Based on previous experience it is likely that this new legal text will require 
comprehensive monitoring to ensure its transposition and conformity.  
In both areas, the Commission will antici pate the number of infringement 
proceedings by the setting-up of a group of experts in order to discuss the 
implementation of the Directives by Member States. 
In general , it is expected that national Equity Bo dies will contribute to a reduction of 
the number of complaints concerni ng this area of Community law. 
For the future, the Commission intends to use extensively ways of problem 
resolution alternative to infringement pr oceedings (EU Pilot) but also external 
expertise (Equality Bodies, Network of Independent Lega l Experts). Together with 
the prioritisation set above, this should allo w the management of a workload which is 
not expected to decrease. 
EN 76   EN 5. AGRICULTURE  AND  RURAL  DEVELOPMENT 
5.1. Current position 
5.1.1.  General introduction 
Since 1962 the Common Agricultural Policy (CAP) has established a comprehensive legal 
framework for European agriculture aiming to ac hieve the objectives set out in the EC Treaty. 
As a fully integrated common policy it replaces a significant amount of na tional legislation. It 
has largely accomplished its objec tives while alleviating the so cial impact of agricultural 
restructuring. As a corollary, farmers and admini strations have to deal with a complex set of 
rules and measures contained in 1730 acts of sec ondary law currently in force. Most of those 
acts are Council or Commission Regul ations that are "binding in their entirety and directly 
applicable in all Member Stat es". Access to agricultural legislation has been improved by 
developments in IT tools. All Community legi slation is now freely available via the EUR-Lex 
website. Consolidation and codifi cation of legal texts both make  the "acquis" more accessible 
to citizens and improve legal certainty. 
The CAP is unique in the extent to which it is regulated and financed at EU level. Its common 
approach, in particular, to the single market, makes it possible to guarantee the functioning of 
an internal market of agricultural products. An  EU framework ensures that rural development 
programs are carried out under common rules w ithout creating unfair competitive advantages. 
Basic standards in the field, for example, of  organic farming and labelling are settled on a 
common basis. This requires robust legislat ion, and effective financing and monitoring 
mechanisms to protect the public in terest and ensure  accountability. 
Taking into account the significant volume of agricultural law a nd the 50 years history of the 
CAP (Stresa Conference dated July 1958), it may be considered as a quite stable "acquis" that, 
on the one hand, is subjected to frequent technical modi fications under the comitology 
procedure, and on the other hand, undergoes on a regular ba sis, much more profound 
modifications. The last one of these, the 2003 reform, brought about radical change to the 
CAP, especially its in come support policy. It established the single payment scheme and the 
single area payment scheme where direct inco me support for farmers is largely decoupled 
from production and introduced the cross-comp liance system, (see Council Regulation (EC) 
No 1782/200384 repealed by Regulation (EC) N° 73/2009) . It also established comprehensive 
common rules for direct support in most sect ors. The effect of these reforms has been 
reviewed in the "Health Check" 2008, based on which the Council decided on adjustments in 
policy and budgetary priorities. 
The policy is divided into two pillars: the firs t pillar consists of a framework for supporting 
the income of farmers through the payment of  direct aid and a sy stem for managing and 
supporting agricultural markets. The second pi llar of the CAP provides a framework to 
support the development of rural areas of the Community. The first pillar is 100% financed by 
the Community budget, whereas the second pill ar is co-financed by the Community budget 
and those of the Member States. Beginning on 1st January 2007 the programmes for rural 
                                                 
84 Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct 
support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) 
No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 
2358/71 and (EC) No 2529/2001. 
EN 77   EN development have been implemen ted on the basis of a new stra tegic planning model based on 
a Community framework positions  and national strategic plan s (see Council Regulation (EC) 
No 1698/200585). 
To these two principal pillars  could be added another impor tant element of the policy 
consisting of the quality policy: notably f our specific EU quality schemes have been 
introduced to develop geographical indications, organic farming, traditional specialities, and 
products from the outlying regions of the EU. These schemes identify to consumers products 
having specific qualities resulting from a particular origin and/or farming method. 
Since the 2007 financial year the financing of the CAP is regulated by Regulation (EC° No 
1290/200586 , which introduced two distinct funds. Th e first pillar is now financed by the 
European Agricultural Guarantee Fund (EAGF) a nd the second pillar (rural development) is 
financed by the European Agricultural Fund for Rural Development (EAFRD). 
The implementation of the CAP is a joint re sponsibility between the Commission and the 
Member States, referred to as shared manage ment. While the Commission is responsible for 
the overall legal framework and for impl ementation of the budget, under the shared 
management concept, the responsibility for impl ementation at the level of final beneficiaries 
has been delegated to the Member States. The extent of the responsib ilities of the Members 
States may in particular be considered very extensive as regards the implementation of the 
measures of the second pillar for which a "botto m up" approach has been followed that leaves 
to the Member States, regions and Local Actio n Groups much more latitude in adjusting the 
programmes to local needs. 
Since the Green Paper of 1985, the CAP has been  the subject of a co ntinuing and regular 
process of reform. This policy also contributed significantly to the regulatory simplification 
process notably in 2007 - 2008 by the adoption of the single Common Market Organisation 
regulation. A common market organisation (CMO) in the agricultural sector governs 21 
sectors which until 2007 were individual CMOs. It provides a single legal framework 
governing the domestic market, trade with thir d countries and rules regarding competition87. 
5.1.2.  Report of work done in 2008 
5.1.2.1.  Management of the "acquis" through committees and experts groups 
To ensure that the European Commission's responsibility for the adoption of secondary 
legislation is exercised in close consultation with the governments of the Member States, 
various committees of government representa tives have been set up by the Commission and 
                                                 
85 Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the 
European Agricultural Fund for Rural Development (EAFRD) – See also Commission Regulation (EC) No 1974/2006 of 15 December 2006 laying down detailed rules for the application of Council 
Regulation (EC) No 1698/2005 on support for rural development by the European Agricultural Fund for 
Rural Development (EAFRD) and Commission Regulation (EC) No  1975/2006 of 7 December 2006 
laying down detailed rules for the implementation of Council Regulation (EC) No 1698/2005, as 
regards the implementation of control procedures as well as cross-complian ce in respect of rural 
development support measures. 
86 Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural 
policy. 
87 Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organization of 
agricultural markets and on specific provisions for certain agricultural products (Single CMO 
Regulation). 
EN 78   EN are chaired by a Commission's representative.  The Commission has th us developed a long 
tradition of cooperation with Member States that presents the opportunity to discuss and 
prepare the implementation of common rules and to  prevent or solve problems related to their 
application at an early stage. 
In this regard, 226 meetings of 25 management and regulatory committees presented the 
opportunity to discuss the implementation of CAP legislation with the representatives of the 
Member States. This process also has the effect  that Member States are reminded of their duty 
to comply with Community law. It should al so be noted that as of 1st January 2008 the 
application of the “single CMO Regulation” (EC) No 1234/2007 was gradually phased in to 
the extent that the previously existing sector -based management committees for the common 
organisation of the markets were replaced on a step by step basis by one single management 
committee for the Common Organisation of Agricu ltural Markets (cf. Article 195 of that 
Regulation). The transition was finalised in October 2008. The “single CMO-committee” with 
5 experts groups replaced 15 sectoral management committees. 
Moreover, in 2008 the Commissi on was assisted by a number of advisory, permanent and 
temporary groups of experts (in to tal 128). These contacts helped to clarify facts and rule out 
misunderstandings. 
5.1.2.2.  Enquiries, problems and complaints management 
The examination of complaints from citizens and companies and internally detected cases 
gave grounds for the Commission to intervene with the Member States on the basis of article 
226 EC in 72 cases covering various fields of  the Common Agricultural Policy. In several 
cases the Commission referred questions relati ng to the application of Community law to 
Member States using the new EU Pilot system . The eight cases open ed in 2008 in the EU 
Pilot system concerned different sectors of the CAP. 
Particular attention was drawn to  the correct application of the Community legislation in the 
field of direct payments. This question wa s raised in two cases. A case concerned the 
establishment of the Farm advisory system in  Portugal. Two cases co ncerned the application 
of Community legislation in the field of the rura l development, namely the eligibility criteria 
for Less Favoured Area aids in Finland and the separation between the Managing Authority 
and the Paying Agency in Germany. The remaini ng cases related to othe r fields of the CAP 
such as export refunds, quality of agricultural pr oducts or the transparency of beneficiaries of 
CAP payments. 
5.1.2.3.  Management of infringements 
In the area of agriculture and rural developm ent, monitoring the application of Community 
law under Article 226 of the EC  Treaty procedure concentrat es on two main objectives: 
removing barriers to the free movement of agri cultural produce and ensuring that the more 
specific mechanisms of agricultural regulati ons are applied effec tively and correctly. 
In the context of ensuring that the specific me chanisms of the agricultural regulations are 
properly applied in the Member St ates, specific attention conti nued to be paid in 2008 to the 
application of the milk quota regi me. Particular attention was devot ed to its application in new 
Member States, in parallel with a special enquiry in this area conducted by the Court of 
Auditors. 
Furthermore, the Commission also examined the compatibility of certain national rules on the 
obligatory indication of orig in for olive oil in Italy. 
EN 79   EN Particular attention has been paid to the treatment of inst ances of non-compliance with the 
Court judgments. In 2008, this resulted in following the progress made by Portugal to 
implement a judgment of the Court where the Court declared that, by levying charges on 
beneficiaries during the programming peri od 1994-1999 which were neither voluntary nor 
optional and which did not constitute remuneration for services rendered by the administration, but rather served to financ e tasks for which the Portuguese State is 
responsible, the Portuguese Republic failed to fu lfil its obligations und er Council Regulation 
(EEC) No 4253/88, as amended by C ouncil Regulation (EEC) No 2082/93
88 . The 
Commission considers that by lim iting, for administrative reasons, the reimbursement of the 
illegal charges to beneficiaries introducing a request within the final deadline of one month, 
Portugal did not fulfil its obligation to implemen t the Court's judgment correctly in view of 
the principles of effectiveness and proporti onality. For this reas on the Commission opened 
Article 228 infringement proceedings agains t Portugal in 2007. Portug al presented a plan 
programming the reimbursement of the amounts re sulting from the charges illegally collected 
from the beneficiaries. 
Furthermore the Commission continued monitoring the application of the so-called "Breakfast 
directives", which lay down particular compositional and labelling requirements for the products including honey, chocolate, jams and fruit juices.
89 In line with the other priorities 
defined in the communication "Europe of resu lts", in 2008 the Commission monitored the 
transposition of one ag ricultural directive. Following the adoption of the Council Directive 
2007/61/EC90, which provided for the deadline fo r transposition of 31st August 2008, the 
Commission, taking account of its priorities, cl osely scrutinised the communication of the 
national transposition measures. In Octobe r 2008 the Commission has opened infringement 
proceedings against Belgium, the Czech Re public, Greece, Italy, Cyprus, Luxembourg, 
Portugal and Romania for non-co mmunication of national trans position measures of Council 
Directive 2007/61/EC. 
More specifically, concerning chocolate (Direc tive 2000/36/EC), the Commission has decided 
to refer Italy to the Court of Justice for fail ing to amend its legislation on the labelling of 
chocolate products. Infringement proceedings have been opened against Italy because the 
Commission considers that the indication "pure chocolate" ca nnot guarantee accurate and 
impartial information for the consumer. In fact, this system of labelling creates a situation in which chocolate containing vegetable fats othe r than cocoa butter may be perceived by the 
consumer as being a lower-quality product than  "pure chocolate" – wh ich would contain fat 
exclusively in the form of co coa butter. But in its judgment of 16 January 2003 in Case C-
14/00 Commission v Italian Republic  the Court of Justice considered that the addition to 
cocoa and chocolate products of vegetable fa ts other than cocoa butter did not entail 
substantial alteration of their composition or na ture. In order to comply with the mechanism 
                                                
 
88 Judgment of 5 October 2006 in case C- 84/04, Commission v. Portuguese Republic, Rec 2006, p.I-
9843. 
89 The list of products is not exhaustive. The products referred to above due to their nature and constant 
consumption require particular supervision of the application of the following directives: Council Directive 2001/110/EC of 20 D ecember 2001 relating to honey  , Directive 2000/36/EC of the European 
Parliament and of the Council of 23 June 2000 relating to cocoa and chocolate products intended for 
human consumption ,Council Directive 2001/113/EC  of 20 December 2001 rela ting to fruit jams, jellies 
and marmalades and sweetened chestnut purée intended for human consumption and Council Directive 
2001/112/EC of 20 December 2001 re lating to fruit juices  and certain similar products intended for 
human consumption. 
90 Council Directive 2007/61/EC of 26 September 2007 amending Directive 2001/114/EC relating to 
certain partly or wholly dehydrated preserved milk for human consumption. 
EN 80   EN introduced by Directive 2000/36/EC for providing the consumer with neutral and objective 
information, the Italian rules should refer either to the absence of vege table fats other than 
cocoa butter or to the sole presence of the fat concerned, namely cocoa butter. 
5.1.2.4.  Petitions 
In 2008 the Commission received 5 petitions rela ted to agriculture which covered a wide 
range of issues such as obtaining EU agricu ltural subsidies under the single farm payment 
system in Romania, implementation of agricultural policies in the Republic of Bulgaria, and suspension of production at the 'L ublin' sugar factory in Poland. 
5.1.2.5.  New legislation 
2008 has been a very active year  in pursuing the reforms of the Common agricultural Policy 
and particularly with the successful outcome  of the "Health check" reflection process 
launched in 2007 on how to improve the efficiency  of the Common Agricultural Policy in the 
future. 
 Approval of the "Health check" 
Indeed, on 20 November 2008 EU agriculture mi nisters reached a poli tical agreement on the 
Health Check of the Common Ag ricultural Policy. These polit ical adjustments have been 
formalised by Council Regulations (EC) N° 72/2009, 73/2009 and 74/2009
91. The Health 
Check modernises, simplifies and streamlines th e CAP and removes restrictions on farmers, 
thus helping them to respond better to signals  from the market and to face new challenges. 
The modifications concern the ma in areas of the CAP: direct aid system, market instruments 
and rural development policy. Among a range of  measures, the agreement abolishes arable 
set-aside, increases milk quotas  gradually leading up to their abolition in 2015, and converts 
market intervention into a genuine safety net. The Health Check also concluded that rules for direct payments have been reviewed and si mplified. Ministers also agreed to increase 
modulation, whereby direct payments to farmers are reduced and the mone y transferred to the 
Rural Development Fund. This will allow a better response to new challenges and 
opportunities faced by European agriculture, incl uding climate change, the need for better 
water management, the protection of biodive rsity, and the production of green energy. 
Member States will also be able to assist da iry farmers in sensitive regions adjust to the new 
market situation. 
 Reform of specific market instruments 
                                                
 
91 Council Regulation (EC) No 72/2009 of 19 January 2009 on modifications to the Common 
Agricultural Policy by amending Regulations (EC) No 247/2006, (EC) No 320/2006, (EC) No 1405/2006, (EC) No 1234/2007, (EC) No 3/2008 and (EC) No 479/2008 and repealing Regulations 
(EEC) No 1883/78, (EEC) No 1254/89, (EEC) No 2247/89, (EEC) No 2055/93, (EC) No 1868/94, (EC) 
No 2596/97, (EC) No 1182/2005 and (EC) No 315/2007; Council Regulation (EC) No 73/2009 of 19 
January 2009 establishing common rules for direct support schemes for farmers under the common 
agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003 
and Council Regulation (EC) No 74/2009 of 19 Ja nuary 2009 amending Regulation (EC) No 1698/2005 
on support for rural development by the European Agricultural Fund for Rural Development (EAFRD). 
EN 81   EN 2008 was not only the year of the Health Ch eck. The Commission also launched the School 
fruit programme, encouraging good eating habits in young people92. It took an important step 
in simplifying the marketing standards for fruits and vegetables93. Besides simplification of 
CMO rules (for instance simplifying and reduc ing the number of products for which import 
and export licences are required and with a hor izontal Regulation con cerning private storage 
replacing sectoral ones), the acquis  concerning several sectors wa s modified to a greater or 
lesser extend in 2008. 
The spirit drinks Regulation (EC) No110/2008 es tablished a clear and simplified framework 
for the definition, descripti on, presentation, labelling and th e protection of geographical 
indications of spirit drinks94. 
The wine reform initiated in 2006 resulted in Council Regulation (EC) No 479/2008 on the 
common organisation of the market in the wine  sector which had as its principal aim to 
reinforce competitiveness95 entered into force on 1st August 2008 except for certain 
regulatory measures (wine making practices, ge ographical indications and labelling) which 
enter into force one year later. This new organisation is simpler than its predecessor, transfers considerable power and responsib ility to Member States via the national support programmes 
and strengthens the legislative support for quality via the registration and protection rules for 
products with designation of origin or geographi cal indication status. It  also sets a clear 
framework for the production pote ntial in the sector, provides a solution to the long-standing 
problem of non-respect of plantin g restrictions and also fixes an end date for these planting 
restrictions (1.1.2016 with an opt ion for Member States to extend for some cases). The 
Commission adopted Regulati on (EC) No 555/2008 implementing the first phase of the 
reform concerning support programmes, trade with third countries, production potential and 
controls in the wine sector
96. Further implementing rules are being prepared concerning wine 
making practices and geographical indications. 
The single CMO project was continued. The Council adopted Regulation (EC) No 361/200897 
which integrated fruit and vegetables into the single CMO following the reform of the sector. 
The Commission also made a proposal to the Council98 for the of integration wine into the 
                                                 
92 Council Regulation (EC) No 13/2 009 of 18 December 2008 amending Regulations (EC) No 1290/2005 
on the financing of the common agricultural policy and (EC) No 1234/2007 establishing a common 
organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) in order to set up a School Fruit Scheme . 
93 Commission Regulation (EC) No 1221/2008 amending Regulation (EC) No 1580/2007 laying down 
implementing rules of Council Regulations (EC) No 2200/96, 2201/96 and 1182/2007 in the fruit and vegetable sector as regards marketing standards. 
94 Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the 
definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89 . 
95 Council Regulation (EC) No 479/2008 of 29 April 2008 on the common organization of the market in 
wine, amending Regulations (EC) No 1493/1999, (EC) No 1782/2003, (EC) No 1290/2005, (EC) No 3/2008 and repealing Regulations (EEC) No 2392/86 and (EC) No 1493/1999. 
96 Commission Regulation (EC) No 555/2008 laying down detailed rules for implementing Council 
Regulation (EC) No 479/2008 on the common organisation of the market in wine as regards support 
programmes, trade with third countries, production potential and on controls in the wine sector. 
97 Council Regulation (EC) No 361/2008 of 14 April 2008 amending Regulation (EC) No 1234/2007 
establishing a common organisation of agricultural markets and on specific provisions for certain 
agricultural products (Single CMO Regulation). 
98 COM (2008) 489 final. 
EN 82   EN single CMO. Adoption of this proposal would co mplete the simplification process by bringing 
the last free-standing sect or into the single CMO. 
The tobacco and hops "acquis" were modifi ed by the adoption of Commission regulations 
following the application of th e single CMO Regulation to those sectors on 1 July 2008. 
 Direct payments and cross compliance 
Beyond the scope of the "Health check" exercise , Community law in the direct payments 
sector was subject to severa l changes aiming, for instance, to adapt the implementation 
rules99. As regards cross compliance changes were ma de to improve in terms of efficiency and 
simplification the rules governing the implementation of this system according to the conclusions of the report to the Council
100 on this matter (minor infringements and a "de 
minimis" rule for sanctions)101. 
 Rural development102 
Designed to take further the policy review init iated with the 2003 reforms some of the main 
issues addressed by the "Health Check" were climate change, bio-energy, water management, 
and biodiversity and iden tified as crucial and new challeng es for European agriculture. A 
specific support for innovation related to these pr iorities shall facilita te the strengthening of 
these priorities. 
Additionally accompanying measures in the dairy sector have been identified as a further 
crucial and new challenge for Eu ropean agriculture. As of 1st January 2010 Member States 
shall provide support in their rural developmen t programs in accordance with their specific 
needs for types of operations addressing the new challenges which will be equal to the 
amounts from modulation. 
More funding will be available to the Member  States via an increase in compulsory 
modulation and the introduction of progressive  modulation in order to address these 
challenges, beginning in 2009 (available in  rural development from 2010). A higher 
Community co-financing rate on increased modul ated funds will be available for these new 
challenges but also for the amounts from unspent  funds from the 1st pillar (standard rate: 
75%; convergence regions: 90%). 
                                                 
99 Commission Regulation (EC) No 319/2008 of 7 April 2008 amending Regulation (EC) No 795/2004 
laying down detailed rules for the implementation of the single payment scheme provided for in 
Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certa in support schemes for farmers, and Regulation 
(EC) No 796/2004 laying down detailed rules for the implementation of cross-compliance, modulation 
and the integrated administration and control system provided for in Council Regulation (EC) No 1782/2003. 
100 COM(2007) 147 final, 29.3.2007. 
101 Council Regulation (EC) No 146/2008 of 14 February 2008 amending Regulation (EC) No 1782/2003 
establishing common rules for direct support schemes under the common agricultural policy and 
establishing certain support schemes for farmers and Regulation (EC) No 1698/2005 on support for 
rural development by the European Agricultural Fund for Rural Development (EAFRD) . 
102 The picture given in this paragraph indicates the evolutions occurred in 2008 and does not take into 
account the modifications introduced by Co uncil Regulation (EC) XXXX/XXXX [amending 
Regulation (EC) No 1698/2005 on support for rural development by the European Agricultural Fund for 
Rural Development (EAFRD) and Regulation 1290/2005 on the financing of the common agricultural 
policy] which had not yet been adopte d when this report was drafted. 
EN 83   EN Selecting which of the new challenges will be reinforced with the ad ditional resources from 
the 'Health Check' should be based on an assessment of the needs in each Member State. 
Member States will therefore have to revise  their national strategy plans and their rural 
development programs and have to submit them  to the Commission no later than 30th June 
2009. New Member States will not have to m odify their national strategy plans and the 
deadlines to revise and submit their rural development programs will be 30th June 2012 
regarding the EU-10. As for Bulgaria and Romania the rules for modulation will not apply at 
all before 2013. 
 Quality policy 
Quality:  Quality being one of the EU's strengths to compete on a global market and respond 
to consumer demand, the Commission decided to launch a reflection process to improve 
European quality policy. In order to be in a position to do so, the Comm ission wished to first 
have the benefit of being appraised of the opinion of stakeholders. For that reason, the 
Commission released, on 15 October 2008, a “ Green Paper on Agricultural Product Quality 
Policy: product standards, farmin g requirements and quality schemes ” (COM (2008) 641 
final), opening a public consultation exercise until 31.12.2008. Building on the operation of current EC quality policy instruments, the co nclusions of the Food Quality conference in 
2007, and studies on food quality assurance and cer tification schemes, the Green Paper refers 
to a range of policy ideas and op tions and is a first step towa rds a possible revision of policy. 
Organic : The Community organic farming legislat ion underwent a profound revision process 
based on the European Action Plan for Organi c Food and Farming (COM (2004) 415 final). A 
milestone of this process is the new Council Regulation (EC) No 834/2007 on organic 
production and labellin g of organic products
103, supplemented by implementing regulations 
adopted in 2008 (Regul ations (EC) No 889/2008104 on production, labelling and control and 
Regulation (EC) No 1235/2008105 on import of organic products) . These Regulations replace 
the old Regulation (EEC) No 2092/91 as from 1 January 2009 onwards. 
 Clearance of accounts 
In 2008, the Commission adopted Regulation (EC) No 1034/2008106 amending Regulation 
(EC) No 885/2006 with a view to strengtheni ng and improving the recovery of irregular 
payments from final beneficiaries. 
                                                 
103 Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic 
products and repealing Regulation (EEC) No 2092/91 . 
104 Commission Regulation (EC) No 889/2008 of 5 September 2008 laying down detailed rules for the 
implementation of Council Regulation (EC) No 834/2007 on organic production and labelling of organic products with regard to organic production, labelling and control . 
105 Commission Regulation (EC) No 1235/2008 of 8 December 2008 laying down detailed rules for 
implementation of Council Regulation (EC) No 834/2007 as regards the arrangements for imports of 
organic products from third countries. 
106 Règlement (CE) n o 1034/2008 de la Commission du 21 octobre 2008 modifiant le règlement (CE) n o 
885/2006 portant modalités d’application du règlement (CE) n o 1290/2005 du Conseil en ce qui 
concerne l’agrément des organismes payeurs et au tres entités ainsi que l’apurement des comptes du 
FEAGA et du FEADER. 
EN 84   EN 5.1.2.6.  Preventive measures 
In the field of prevention the Commission con tinues to be active as the following actions 
demonstrate. 
 Comitology 
As already referred to, the Commission makes use of the management and regulatory 
committees, advisory, permanent and temporar y groups of experts to promote better 
implementation and identifying and addressing potential problems as early as possible. 
In order to contribute to the smooth applicatio n of sectoral regulations, bilateral meetings 
were organised regularly with Member States  in the margins of the Committee meetings. 
Where needed, missions to MS capit als to receive a globa l view of procedures  and practices at 
national level were also organi sed. “Bilaterals” with MS provide d the competent services of 
the Commission with the opportunity to deal  positively with some recurrent problems 
encountered by MS in the drafting of applications as well as in  interpretation of a number of 
legislative provisions. The Commission also pr ovided practical suggestions to improve the 
quality of applications, for instance in the quality sector, for registration and amendments. 
This contributed to reducing time-consumi ng formal exchanges concerning Commission 
requests for additional informati on. Regarding the preparation of the transposition of Council 
Directive 2007/61/EC, the Commission placed th e question on the agenda of the single CMO 
committee on several occasions in order to fo llow the progress made by the Member States 
and to offer any assistance if needed for trans position. In the context of the implementation of 
the fruit and vegetable reform, the responsib le agricultural department prepared 32 
interpretation notes, including 94 FAQ. 
Moreover, a register of interpretative notes on agricultural law (called RIPAC) has existed for 
a long time and new interpretative  notes are regularly being crea ted and put in that register 
accessible for the Member States. The notes are us ually drawn up as a result of a written or 
oral question posed by a Member State. 
 Technical standards dir ective (Directive 98/34/EC) 
Directive 98/34/EC of the European Parliame nt and of the Council of 22 June 1998 laying 
down a procedure for the provision of informa tion in the field of te chnical standards and 
regulations requires Member States and Member s of the European Free Trade Association 
who have signed the Agreemen t on the European Economic Area plus Switzerland and 
Turkey to give each other and the Commission pr ior notification of all draft rules containing 
technical standards or rules in order to avoid creating new barriers to trade in the internal 
market. As such, this directive can be consider ed as an ideal preventive instrument enabling 
the filtering of any national technical rule that could jeopardize the functioning of the internal market. 
In this context, in 2008 the relevant departme nts of the Commission were formally consulted 
on 74 notifications relating to the agricultural sector. Examination of these draft texts 
subsequently led to the issuing of fi ve comments and six detailed opinions. 
Furthermore, concerning the obligatory indica tion of origin for olive oil in Italy the 
Commission issued a "blockage" on a notified draft national measure intended to replace a decree which is the subject of on-going infri ngement proceedings. The notified measure was 
EN 85   EN therefore subject to both a detailed opinion and a blocking decision  by the Commission until 
1st May 2009. 
 Simplification 
The Commission strategy for simplifying the regulatory environment (COM(2005)535) set 
out an ongoing simplification programme of m easures to be adopted between 2005 and 2008 
with a view to improving the quality and eff ectiveness of the "acquis". As far as the 
agricultural sector is concerned, the Communi cation on Simplification and Better Regulation 
for the Common Agricultural Policy (COM (2005)  509) led to the creation of the rolling 
Common Agricultural Policy Simplification Action Pl an. The Action Plan is used to identify, 
plan and monitor the implementation of the s implification projects within the agricultural 
sector. Launched at the end of 2006, it has evol ved from 20 to around 50 projects; 43 projects 
have already been implemented (removal of the obligation to ha ve a licence for beef exports 
without export refunds, end of the obligation for a farmer to have a plot of land at his disposal 
for at least 10 months in order to apply for direct payments, for imports, licence requirements 
were reduced from 500 to 65 and for exports , only 43 licence requirements remain., etc). 
Simplification is aided by the reforms of the su gar, wine and fruit a nd vegetable sectors and 
the inclusion of these sectors into the Si ngle Payment Scheme and the single CMO. 
On technical aspects, it is interesting to mention that al most 300 obsolete acts have been 
repealed. The adoption of the single CMO replaces 21 individual common market 
organisations with one, reducing the number of articles from ar ound 920 to around 230 and 
repealing 78 Council acts. The number of lega l instruments for State Aid has been reduced 
from six to three. A new IT system ISAMM, to facilitate the exchange of information between 
the Commission and the Member States , is in its final development phase107. 
 Assessment of rural development programs 
In 2008 Commission went on with the appraisal of the new rural development programs. 
Indeed, 2008 was marked by the co mpletion of the approval of rural development programs, as 
25 out of the total of 94 programs which had alr eady received a favorable opinion of the Rural 
Development Committee in December 2007 or fo r which the main preparatory work was 
finished by the end of 2007 were formally  approved by the Co mmission in early 2008 
following the carry-over of commitment a ppropriations from 2007 to 2008, according to 
Article 9 (2) of the Financial Regulation. The remaining 15 programs were approved 
throughout the year. The Commissi on launched the European Network for Rural Development 
provided for in Article 67 Council Regulation (EC) No. 1698/2005. In February 2008 also 
three pre-accession assistance programs under IPARD were formally approved by the 
Commission after having received a favorable opinion of the Rural Development Committee 
in December 2007 and after the related commitmen t appropriations were carried over from 
2007 to 2008, according to Article 9 (2) of th e Financial Regulation.  The programs were 
modified by Commission decisi ons in October and December 2008 to take account of the 
2010 financial allocations as decided in th e multi-annual indicative planning documents 
(MIPDs and to remove certain inconsistencies and to amend editorial shortcomings). 
                                                 
107 For a comprehensive updated presentation on simplification in agriculture, see: Communication from 
the European Commission to the Par liament and the Council "A simp lified CAP for Europe - a success 
for all  (COM(2009) 128 final). 
EN 86   EN Moreover, in the framework of the design of th e modifications of the implementing rules of 
the EAFRD (amending Regulation (E C) No 1974/2006) the new rule s have been explained to 
Member States in order to provide clarity. De sk officers are given guidance through training 
courses in order to give the necessary assistance to the Member States during the consultation 
processes regarding the modification of progra ms including monitoring and evaluation issues. 
 Clearance of accounts 
EAGF and EAFRD expenditure is impleme nted under shared management through a 
comprehensive management and control system based on four levels consisting of108: 
– A compulsory administrative structure at the level of the Member States: 
management and control of the expenditu re is entrusted to dedicated paying 
agencies, which prior to their operation must be accredited by the Member States on the basis of a comprehensive set of  accreditation criteria laid down in 
Community law. 
– Detailed systems for ex-ante controls a nd dissuasive sanctions: These systems are 
to be applied by the paying agencies and contain some common features and special rules tailored to the specificities  of each aid regime. The systems generally 
provide for exhaustive ex-a nte administrative contro ls of 100% of the aid 
applications, cross-checks with other databases where this is considered appropriate as well as pre-payment on-the-spot controls of a sample of transactions ranging between 1% and 100%, depending on th e risk associated with 
the regime in question. If the on-the-s pot controls reveal a high number of 
irregularities, additional cont rols must be carried out.  
In this context, the by far most impor tant system is the IACS (Integrated 
Administration and Control System), which in financial year 2008 covered 87.5% of EAGF expenditure (EUR 36 906.5 million out of EUR 42 181.2 million). To the 
extent possible, the IACS is also used to manage and control rural development 
measures relating to parcels or livest ock, which in 2008 accounted for around 73% of 
payments under the EAFRD (excluding advances). 
– Ex-post controls: In addition to the ex-ante controls, all aid measures other than 
direct payments covered by the IACS are su bject to ex-post controls under either 
Council Regulation (EC) No 485/2008 or, for rural development measures, 
Commission Regulation (E C) No 1975/2006. Moreover, the paying agencies' 
annual accounts and the functioning of th eir internal control procedures are 
verified and certified on an ex-pos t basis by the certification bodies. 
– Clearance of accounts: The clearan ce of accounts through the Commission 
consists of both an annual financial clearance and a multi-annual conformity 
clearance. 
Taken together, these four levels  are designed to ensure the legality and regularity of the 
transactions at the level of the final beneficiar ies. In the current cont ext of the report on the 
application of Community law, the conformity  clearance mechanism is  particularly worth 
                                                 
108 For more explanations on the management of the agricultural budget and its audit tools, see: 
http://ec.europa.eu/agriculture/f in/clearance/factsheet_en.pdf. 
EN 87   EN mentioning as it pertains to the correct applic ation of the legislation establishing the common 
agricultural policy.  
Indeed, meanwhile the financial clearance covers  the integrality, accuracy and veracity of the 
paying agencies' accounts, the conformity clearance relates to the legality and regularity of the 
underlying transactions. It is designed to ex clude from Community financing expenditure 
which has not been executed in compliance w ith Community rules, thus shielding the 
Community budget from expenditure that should not be charged to it (financial corrections). In 
contrast, it is not a mechanism by which irregu lar payments to beneficiaries are recovered, 
which according to the principle of shared manage ment is the sole responsibility of Member 
States. Financial corrections are determined on  the basis of the nature and gravity of the 
infringement and the financial damage caused to the Community. Wher e possible, the amount 
is calculated on the basis of the loss actually cau sed or on the basis of an extrapolation. Where 
this is not possible, flat-rates are used which take account of the severity of the deficiencies in 
the national control systems in order to reflect  the financial risk for the Community. Where 
undue payments are or can be identified as a result of the conformity clearance procedures, 
Member States are required to follow them  up by recovery actions against the final 
beneficiaries. However, even where this is not  possible because the fi nancial corrections only 
relate to deficiencies in the Member States ' management and control systems, financial 
corrections are an important m eans to improve these systems and, thus, to prevent or detect 
and recover irregular payments to final bene ficiaries. The conformity clearance thereby 
contributes to the legality and regularity of the transactions at the level of the final 
beneficiaries. 
In 2008, the Commission adopted three conformity clearance decisions: 
• Decision 2008/321/EC of 8 April 2008 excl uding an amount of EUR 83.00 million 
from Community financing; 
• Decision 2008/582/EC of 8 July 2008 ex cluding an amount of EUR 410.31 million 
from Community financing; 
• Decision 2008/960/EC of 8 December 2008 excluding an amount of EUR 528.53 
million from Community financing. 
Moreover, in 2008, the Commission carried out 120 on-the-spot missions in the Member 
States and launched 138 desk checks. These a udits covered 47.6% of total EAGF and EAFRD 
expenditure. 
While the financial consequences will only be  determined at the end of the conformity 
clearance procedures, the results of the audi ts are already known. Most of the audits 
performed in 2008 have not revealed any defici encies in the control systems which would 
suggest that those systems are ineffective in dete rmining the eligibility of claims or preventing 
irregularities109. 
                                                 
109 For a more detailed description of the conformity clearance activities, see the 2008 Annual Activity 
Report of the Directorate General for Agriculture and Rural Development 
EN 88   EN 5.2. Evaluation 
5.2.1.  General evaluation 
Taking into account the volume of  Community law currently in force in the agricultural 
sector, the "acquis" in the agricultural sect or may be considered as globally stable and 
manageable or subjected to technical up-dating or clarification effect ed through Comitology 
(see above). This updating is not generally expected to be c ontroversial or difficult to 
implement due to the well-established and well- understood framework in which this will take 
place and given previous experience of the relatively smooth adoption and timely entry into effect of this type of measure. 
In the agricultural sector it may be consider ed that preparatory working contacts between 
experts, review of problems arising and multilate ral and/or bilateral exchange of information 
constitute proportionate and sufficient means to  ensure correct implem entation. Furthermore, 
besides its role in the adoption of implemen ting rules, the Management Committees, which 
meet regularly, are a privileged forum for th e exchange of informat ion and best practise 
between MS and the Commission. 
In any case, as already explained, the agricu ltural sector makes use of the clearance of 
accounts mechanisms to monitor through its audits  the application of secondary agricultural 
legislation. 
5.2.2.  Sector based remarks 
5.2.2.1.  Market instruments 
As regards the functioning of this sector-based "acquis" , no major problems were encountered 
in 2008. The "acqui s" can be considered as stable provi ding a generally sa tisfying situation. 
In line with the priorities defined in the 25th report to EP for agricultural sector, particularly 
regarding the follow up of the application of th e fruit and vegetables CMO reform, this new 
legislation has being monitored and manage d through the adoption of implementation 
measures and through interpretative notes rega rding Regulation (EC) N°1580/2007 that led to 
a globally satisfying situation. No new enfo rcement proceedings were required. The same 
may be stated concerning the wine and sugar sectors subject to reform. 
The audits performed in 2008 (covering such aid schemes as export refunds, sugar and 
industrial use, fruits and vegetable, wine re structuring and grubbing up, public storage, etc) 
generally show a very high degree of conformity by Member States110. 
5.2.2.2.  Direct payments and cross compliance 
 Direct payments scheme 
                                                 
110 Deficiencies which would suggest that the control system in question is ineffective in determining the 
eligibility of claims or preventing irregularities, were detected in only the following Member States for quite specific schemes or geographical regions that were: Bulgaria (wine restructuring, France 
(POSEIDOM implementation in Réunion), Greece (dried  grapes expenditures), Italy (Citrus processing 
in Sicily and Calabria). 
EN 89   EN The "acquis" in the direct payments sector is stable and its application by the Member States 
was generally satisfactory but some specific issu es have created implementing difficulties for 
Member States, for example regarding the ownership of payment entitlements. 
One of the principles behind the CAP Reform is that EU support shou ld benefit the active 
farmer. However, in some Me mber States (Germany, Finla nd, The Netherlands) a legal 
controversy arose between tena nts and landowners about the ownership of entitlements. 
Landowners want to recover entitlements from tenants upon expiry of the lease agreement. A 
ruling of the Dutch lease tribunal confirmed that the entitlements shall return to the 
landowners. The granting of direct payments was never based on the ownership of the land 
but on the agricultural activity exercised on that land. Th e purpose of the Single Payment 
Scheme (SPS) is to provide security of in come for active farmers, thus making the SPS 
entitlements personal in character and therefor e tied to the individual concerned. Unless 
agreed otherwise by private contract, a landowne r who had leased out his land would not have 
any right to intervene in what happens to payment entitlements allocated to his tenant, even 
upon expiry of the lease agreement (ref. Ar ticle 46 of Council Regulation 1782/2003). The 
Commission requested Finland to change a provision in its na tional law and it subsequently 
amended it. The Commission is seeking further clarifications on this amendment. According 
to the Commission, the Dutch law is in confor mity with Community rules. However, the 
ruling of the Dutch lease tribunal is not in  line with Regulation (E C) No 1782/2003. This case 
is now subject to a referral to the Court of justice for preliminary ruling (Case C-470/08 – Van 
Dyck). 
As regard the implementation of control mechan isms by the Member States, audits performed 
in 2008 showed that the basic elements of IACS  were established and generally operational. 
Significant IACS control deficiencies which woul d suggest that the system is ineffective in 
determining the eligibility of claims or prev enting irregularities, were only detected in 
Cyprus, Malta and Romania. As regards Greece, it  has to be noted that the most recent on-the-
spot audit in this Member State has shown that  it has carried out its ac tion plan and that an 
operational LPIS-GIS is now in place. Regardin g the entitlements, in  the period 2005-2007 all 
Member States except Malta and Slovenia (envi saged 2009) have been subject to audits. 
These audits showed generally no major weakness. 
 Cross compliance 
Regarding cross compliance, which was identified as a priority in the 25th report to the EP on 
monitoring the application of Community law, its scope was subject in the past to criticisms 
from both farmers and national administrations (r eport to the Council on th e application of the 
system of cross compliance establishing common rules for the direct support schemes under 
the common agricultural policy and establis hing certain support schemes for farmers111. The 
main problems highlighted were that certain prov isions were not directly related to farming 
activity. The lack of flexibility of the GAEC framework was also emphasised. The management of cross compliance was also subject  to criticisms because it was seen as too 
complicated. In particular the improvements ma de to the first pillar in 2007 following the 
report to the Council were not ap plicable to the second pillar. 
The Health Check has addressed these issues. The provisions not related to farming activity 
have been withdrawn from the scope of cross compliance and the possibility to apply certain 
                                                
 
111 COM(2007)147final of 29 March 2007. 
EN 90   EN GAEC standards on an optional ba sis has been recognised, while clarifying that no standards 
may be defined which are not provided for in the EU context. The management rules have 
also been reviewed at Council level to extend  the simplification already made to direct 
payments also to rural development. Change s to the implementing rule have furthermore 
better harmonised the management rules between  direct payments, rural development and 
wine. The Council has however concluded the H ealth Check discussion on cross compliance 
with a request to pursue th e efforts of simplification. 
The European Court of Auditors has i ssued in 2008 a report on cross compliance112. It 
recommends inter alia  that Member States better define  obligations at farm level and 
recommends also further streamlining of the f unctioning of the system of cross compliance. 
5.2.2.3.  Rural development 
Taking in account the approval procedure by the Commission of rural development 
programmes (see above), the glob al situation of th eir application may be considered as 
stabilised and globally satisfactory, unless, in  the light of the recent approval of these 
programmes, experience is not enough to base  clear conclusions on what the main problems 
could be. The audits performed in 2008, mainly concentrated on Axis 2 and more specifically 
on agri-environmental measures, di d not reveal control deficienci es which would suggest that 
the system in question is ineffective in determining the eligibility of claims or preventing 
irregularities. However, the c ontrol systems in relation to Ax is 2 measures could still be 
further improved. 
5.2.2.4.  Quality policy  
 Quality 
Whilst Community agricultural product quality legislation could be described as a fairly 
stable "acquis"  characterised by a globally satisfactory s ituation, nonetheless, in the course of 
analysis of this field, it has become clear that a strategic framework for EU action is needed in 
the short term and could usefu lly be included in a Communica tion. Moreover, the existing EU 
quality schemes (geographical i ndications and traditional specia lities) and measures are in 
need of attention and a policy review could be envisaged. In particular , procedures should be 
streamlined and simplified, as applications from  Member States are often incomplete and it 
appears that in a number of cases Member St ates do not carry out their examination of 
applications properly before submission to  the Commission. These problems should be 
tackled within the framework of the above mentioned revision of the Quality Policy. 
 Organic 
Regarding the implementation of the Commu nity rules regarding organic products, 
with this new legislative framework (see above), the situation is significantly improved. For the first time, the objectives and principles of organic farming are 
defined at EU level. Competences between  the Commission and the Member States 
are clearly fixed. Controls are under the responsibility  of Member States and 
logically placed under the roof of the Official Food and Feed Control (OFFC) 
established by Council Regulation (EC) No 882/2004. The implementing rules have 
been simplified wherever it was possible with the agreement of the Member States in 
                                                
 
112 Special Report 8/2008. 
EN 91   EN the relevant Regulatory Committee, and derogations made truly exceptional. 
However no new development was undertaken, apart from organic yeast rules. 
Against this background, the globa l situation of application of these rules may be considered 
as stabilised and globally satisfactory. Furtherm ore, given the recent approval of these rules, 
experience is not enough to base clear conclusi ons on what the main problems could be. It is 
not expected that application or enforcement w ould create special difficulties as most of the 
new legislation is directly inspired by the pr evious one. However, some recent cases seems to 
indicate that the accr editation of control bodies  which is now a form al obligation to be 
respected by the Member States when they delegate their control tasks, may be a field where certain control bodies experienced difficulties, apparently due to delays in obtaining the 
necessary accreditation certificat e from the relevant authority. 
5.2.2.5.  Technical standards direc tive (Directive 98/34/EC) 
Following the information available to the Co mmission the functioning of Directive 98/34/EC 
in the agricultural sector appears to be sa tisfactory. In 2008 there were, for example, no 
infringement procedures launched against th e Member States for not following detailed 
opinions. 
One less significant exception to the smooth functioning of Direc tive 98/34/EC was the 
Latvian request in May 2008 to get one of th eir notifications, regarding requirements for 
integrated production, treated in accordance with  the urgent procedure laid down in Article 
9(7) of Directive 98/34/EC. This provision stip ulates that certain cases, occasioned by serious 
and unforeseeable circumstances relating to the protection of public health or safety, the 
protection of animals or the preservation of plants must be treated urgently. 
Latvia justified their request for an urgent pr ocedure by stating that unless the notified rules 
were adopted urgently the legal basis for inte grated agricultural produc tion and the control of 
this process would not be possible. This woul d, in turn, prevent the Latvian farmers from 
profiting from the aid foreseen in the Ru ral Development Plan (RDP) for 2007-2013. 
However, Commission's examination of the requ est showed that the re asons given by Latvia 
would not satisfy the requirements for an urgent procedure as laid down in Article 9(7) of 
Directive 98/34/EC as the notified measure di d not relate to a serious and unforeseeable 
situation. The Latvian request  was therefore rejected. 
5.3. Evaluation results 
5.3.1.  Priorities and action planed 2009 
5.3.1.1.  Legislative and management pr iorities and action programming 2009 
 Market instruments 
Beyond the ongoing pursuit of legal and operational  simplification, , including the completion 
of the single CMO by the integration of the wine  sector, balanced against protection of the 
budget expenditures and the principles of subsid iarity and shared management of the budget, 
or simplification of the hops regime by elimina ting the burdensome requirements to register 
cultivation contracts, the Commission will launc h the process needed for the adoption of the 
second phase of the wine reform notably concer ning three draft regulations, two of which are 
subject to consultation of WTO partners in the context of the Agreement on Technical 
Barriers to Trade. These regulations concer n wine-making practices and restrictions, 
EN 92   EN Protected Designation of Origin (PDO) and Pr otected Geographical Indication (PGI) wines, 
traditional terms, labelling and presentation of  certain wine sector products, the vineyard 
register, obligatory declarations and accompanying documents. Simplification initiatives are still being drafted for intervention, electronic data communication, food ai d for most deprived 
persons, and the fruit juice directive. Moreover,  the Commission is taking necessary step to 
contribute to the evaluation of the tobacco a nd hops regimes and to amend the "acquis" if 
necessary, to establish new procedures for Comm unity registration of PDOs and PGIs in the 
wine sector and of PGIs in th e spirit drinks sector. The adop tion of the draft amendments to 
Regulation (EC) N° 1019/82 on ma rketing standards for olive oil which introduces an 
obligation to indicate the origin on the labels of extra virgin and virgin olive oils should put an 
end to the difficulties encountered in this sector  with Italy that had established a system of 
compulsory origin labell ing on olive o il packaging. 
The financial and economic situation in Member States and globally are having an impact on 
agricultural products. An additional priority for the moment is to  monitor the market situation 
for each of the products. The pri ce volatility, in particular in the milk sector, requires sharp 
market monitoring and quick reactions by using the existing market measures as reviewed 
under the "Health check". 
 Direct payments and cross compliance 
The proper application of the ne wly revised legislation in the context of the Health check 
requires the adoption of detailed implementing rules, particularly for Regulations (EC) 
N°73/2009 and 74/2009. New implementing regulati ons will include recasts of Commission 
Regulations (EC) No 795/2004, 796/2004 and 1973/ 2004 to establish the implementing rules 
of Regulation (EC) No 73/2009 needed for 2009 a nd a cleaning up of obsolete rules as well as 
implementing rules needed as from 2010 (especia lly regarding Articles 68 to 72 of Regulation 
(EC) No 73/2009). Moreover, the Commission inte nds to provide advice to Member States 
regarding the implementation of these regu lations and to continue with efforts on 
simplification of the functi oning of cross compliance. 
 Rural development 
The implementation of the Health Check implies the modification of the Implementing Rules 
of the EAFRD (amending Regulation (EC)  No 1974/2006). The implementing rules for 
controls in rural development, Regulation (EC) No 1975/2006, will be amended in order to 
clarify and simplify it and to ta ke into account changes made to Regulation (EC) No 796/2004 
which has been amended several times a nd to which there are cross-references. 
Regulation (EC) No 1975/2006 alre ady sets out an application deadline for payment claims 
for area and animal-related measures. This deadlin e is in accordance with that one set for the 
first pillar and aligns the system with IACS. In order to guarantee better cash flow for the 
beneficiaries and to further streamline the cont rols of area and animal-related measures under 
the first and second pillar and to guarantee the quality of the controls, a payment deadline for 
these measures is proposed to be set in Council Regulation (EC) No 1698/2005. 
As a consequence of the Health Check and the European Economic Recovery Package, which 
will imply additional financial resources for rural development, all National Strategy Plans 
and consequently Rural Developmen t Plans have to be revised. 
 Quality policy 
EN 93   EN Quality:  In order to ensure a more efficient application of the Regulations, the ongoing 
productive bilateral "dialogue" with  MS will be enhanced. A priority  will be also to build on 
continuous improvements in scrutinizing techniques  applied to applicatio ns, so as to further 
accelerate the treatment of files and management of the relevant procedures. In the light of the 
potential for inconsistencies stemming from the independent develo pment of the diverse 
instruments that comprise agricultural product quality policy, the need to ensure overall coherence cannot be overstated. Therefore, a co mprehensive and coherent global package on 
Quality will be the essential element. Contri butions received from respondents to the public 
consultation of the Green Paper on agricultural product quality policy prov ide the basis for the 
Commission’s Communication, to  be adopted in May 2009. 
Organic:  The proper application of the newly revi sed organic Community legislation requires 
the adoption of detailed implementing rules also in new fields like organic aquaculture and organic wine. The scope of the Community rule s was extended to these fields so as to 
harmonize private and national rules for a better functioning of the mark et and to respond to 
increased consumer demand. The implementing rule s will be adopted within the framework of 
the Comitology procedure. A Regulatory Committee, namely the Standing Committee for organic farming (SCOF) must deliver its opin ion before adoption of the new rules by the 
Commission. Beside this role, the SCOF meets regularly to exchange information and to 
discuss best practices in Member States. Regarding the difficulties encountered with 
accreditation bodies, if they cannot be solved by MS, before opening infringement proceedings, a satisfactory solution will be lo oked for though bilateral contacts and open 
discussion of problems encountered by the Memb er States within the Standing Committee of 
Organic Farming (SCOF). 
 Clearance of accounts 
For 2009, the annual work plan foresees 139 conform ity audits with missions plus 5 IT audits 
and several desk checks of which the number is estimated to be around 50  based on last years' 
experience. 
5.3.1.2.  Enforcement priorities 
As already mentioned, in the area of agricu lture and rural development, monitoring the 
application of Community law under Article 226 EC proceedi ng concentrates on two main 
objectives: removing barriers to the free movement  of agricultural products and ensuring that 
the more specific mechanisms of agricultural re gulations are applied effectively and correctly. 
In the use of the infringement procedure, priority will be granted to cases which raise issues 
concerning the compatibility of Member States ' legislative, regulatory or administrative 
measures with Community agricultural rules and to cases where Member States concerned 
refrain from applying the aforementioned comm on rules, in both cases where such problems 
jeopardize the effectiveness of important mech anisms of the common agricultural policy, 
particularly regard ing the 1st pillar. 
For the years 2009 and 2010, the Commission will in particular be vigilant in pursuing 
infringements of the type described in the prev ious paragraph challeng ing the application of 
EN 94   EN the CMO's reform in the fruit and vegetable an d wine sectors and thos e which would affect 
the application of the direct payment regi me , and in particular "cross compliance"113. 
Furthermore, if the bilateral co ntacts established with MS with  the aim to convince them to 
accredit correctly the control bodies in the organic products sector fail, the Commission 
would make use of the infringement procedure. 
6. ENERGY  AND  TRANSPORT 
6.1. ENERGY - Internal electricity and gas market  
6.1.1.  Current position 
6.1.1.1.  General introduction  
Relevant legislations for the internal electric ity and gas market are:  Directives 2003/54 and 
55, of 26 June 2003 concerning common rules for th e internal market in electricity and gas, 
respectively; Directive 2005/89 of 18 January 2006, concerning  measures to safeguard 
security of electricity suppl y and infrastructure investme nt; Regulation 1228/2003 of 26 June 
2003, on conditions for access to the network for cross-border exchanges in electricity; Regulation 1775/2005 of 28 September 2005 on c onditions for access to the natural gas 
transmission networks.  
6.1.1.2.  Report of work done in 2008 
 Enquires, problems and complaints 
Some complaints were received in 2008.  Problems reported mainly refer to the 
malfunctioning of cross-border trade, the prefer ential treatment of national supplier in the 
electricity sector and to the protection of national markets th rough the imposing of electricity 
export fees. In the gas sector, th e publication of the relevant en try and exit points, contracted 
and available capacities, and historical flows wa s found to be unsatisfactory in a number of 
Member States.  
Coexistence of open energy markets and regulated energy prices was sti ll to be registered 
quite commonly among EU Member States in 2008:  more than half of the Member States 
have regulated prices which in the majority of  Member States are not confined to household 
customers. The negative effects of regulated energy prices was and still is to be a major 
concern in terms of the proper functioning of the internal energy market. Indeed regulated 
prices can lead to a distortion of competition and do not send the right price signals to the 
market (influencing investments and incentives for energy efficiency).  
 Management of infringements 
More than four years after the time-limit (1 July 2004), the implementation of the Electricity 
2003/54/EC and Gas Directives 2003 /55/EC ("second package") is still not entirely complete. 
Several Member States have correctly impl emented both Directives through appropriate 
national legislation and some progr ess has also to be registered  in other Member States. In 
                                                
 
113 The use of the infringement procedure will be fa voured in cases where the absence of financial 
consequences of the infringement would not allow fo r recourse to the clearanc e of accounts procedure. 
EN 95   EN some cases Member States brought their national  laws into line with EU legislation after 
reasoned opinions being issued by the Commission. 
As regards Directive 2005/89 Me mber States were obliged to transpose and implement 
provisions of the Directive by 24.02.2008. Ten Member States notif ied complete transposition 
before the time-limit. Infringement cases fo r non communication were  started against the 
remaining 17 Member States. Twelve of these notified the transposing measures by the end of 
2008. 
 New legislation 
In 2008 the Commission negotiated with the Counc il and the Parliament five new legislation 
acts (third internal energy market package)114, which identified several malfunctions in the 
electricity and gas markets and proposed remedi es. In June and July 2008, the package passed 
its first reading in the European Parlia ment; in October 2008, the common position was 
adopted by the Council. The third pa ckage was finally adopted mid 2009115.  
6.1.2.  Evaluation of the current position 
In 2008 a great deal of effort was put into enhancing competition on the wholesale market; 
significant progress was made thr ough the regional initiatives. Th ere also seems to be a new 
trend towards building new energy infrastructu re. However in spite of some encouraging 
results and the benefits of the liberalisation process, the full potential of liberalisation has not 
yet been realised. While the situation in more mature markets is demonstrating the potential benefits of energy market liberalisation, there are still a number of areas and Member States 
where significant obstacles to the efficient functioning of the electricity and gas market 
persist. A major concern is the incomplete implementation of European electricity and gas legislation. There are still some areas and Me mber States where the existing legislation 
(second internal market package)  has not yet been properly im plemented or where the need 
for new legislation has become evident. For this reason, during 2008 the Commission has 
taken actions, on the one hand, to ensure the co rrect implementation of EU legislation at 
national level through the application of infri ngement procedures and, on the other hand, to 
complement the internal market legislation with  the third internal energy market package.  
6.1.3.  Evaluation results  
The Commission's services have identified the ma in areas where there is failure to comply 
with the electricity and gas Directives and Regul ations and the main actions to be undertaken. 
In particular, infringement proceedings will focus in the gas and electricity sector on specific items such as: regulated prices, penalties, tr ansparency and capacity allocation of networks; 
third party access and consumer protection, all in both sectors, and security of supply in the 
electricity sector. 
                                                
 
114 The package comprises: 
 An Electricity Directive amending and comp leting the existing Electricity Directive 2003/54 
 A Gas Directive amending and completing the existing Gas Directive 2003/55 
 An Electricity Regulation amending and completing the existing Electricity Regulation 1228/03  A Gas Regulation amending and completing the existing Gas Regulation 1775/05 
 A Regulation establishing an Agency for the Cooperation of Energy Regulators 
115  http://ec.europa.eu/energy/gas_electricity/third_legislative_package_en.htm 
EN 96   EN In addition meetings with MS are planned in or der to facilitate the transposition of the third 
package. 
6.1.4.  Sector summary 
While the situation in more mature markets is demonstrating the potential benefits of energy 
market liberalisation, th ere are still some areas and Member  States where significant obstacles 
to the efficient functioning of the electricity and gas market persist. While there are still some 
areas and Member States where the existing legi slation (second internal market package) has 
not yet been properly implemented, the need for new legislation has become evident. 
The Commission's efforts are therefore concentr ating in ensuring an efficient implementation 
of the existing and forthcoming legislat ion, by combining action in two fields: 
- Remedial field: The main areas where there is failure to comply with the electricity and gas 
Directives and Regulations and the main actions to be undertaken have been identified, on this 
basis, infringement proceedings will focus in 2009 on specific items such as: regulated prices, 
penalties, transparency and capacity allocation of networks; third part y access and consumer 
protection, all in both sector s, and security of supply in the electricity sector. 
- Preventive field: different actions will be planned in order to facilitate the transposition of 
the third internal energy package. 
6.2. ENERGY - Coal and Oil 
6.2.1.  Current position 
6.2.1.1.  General introduction 
Of the relevant legislation in the area of coal and oil, the bulk of the Commission's work in 
Community law management in 2008 concerne d Directives 2006/67 (Council Directive 
2006/67/EC of 24 July 2006 imposing an obligation on Member St ates to maintain minimum 
stocks of crude oil and/or petroleum produc ts – Codified version ; OJ L 217, 8.8.2006, p. 8) 
and 94/22 (Directive 94/22/EC of the European  Parliament and of the Council of 30 May 
1994 on the conditions for granting and using aut horizations for the prospection, exploration 
and production of hydrocarbons; OJ L 164, 30.6.1994, p. 3). 
Other relevant legi slation includes:  
Council Directive 73/238/EEC of 24 July 1973 on measures to mitigate the effects of 
difficulties in the supply of crude oil and petroleum products (OJ L 228, 16.08.1973, p1-2), Council Decision 68/416/EEC of 20 December 1 968 on the conclusion and implementation of 
individual agreements between Governments rela ting to the obligation of Member States to 
maintain minimum stocks of crude o il and /or petroleum products (OJ L 308, 23.12.1968, 
p.19. 
6.2.1.2.  Work done in 2008 
 Infringements 
With respect to Directive 94/ 22, the Commission continued to  process publication requests 
received from Member States pursuant to th e provisions of the Directive but also followed 
EN 97   EN implementation of the same Directive in Memb er States. Several infringements procedures 
were pursued in 2008: as regards the obligation of Member States to duly notify competent 
authorities, the Commission issued both a letter  of formal notice and a reasoned opinion in 
2008 in a procedure opened against Belgium; in a file concerning Poland, an infringement procedure reached the stage of  the reasoned opinion, where the Commission asked Poland to 
correct its procedures for granting rights over oil and gas resources. 
As regards Directive 2006/67, infringement cases were also treated in 2008, related either to 
the non-compliance with the obligat ory stocks minima set in th e legislation or with other 
aspects of the legislation. An infringement pr ocedure against Belgium for insufficient stock 
levels resulted in an ECJ ruling in favor of the Commission (case C-510 /07) in July 2008. An 
infringement procedure against Ireland was la unched in 2008 on the grounds that its national 
legislation allows stocks to be used as collateral. 
 New legislation 
The March 2007 European Council underlined the n eed to enhance the security of supply for 
the EU and highlighted the need to review EU oil stocks mechanisms. 
Though no particular system in a Member State ha s to date demonstrably failed to provide for 
adequate supplies in case of crisis nor has been ruled as inadequate e.g. by the ECJ, the 
number and character of infri ngement proceedings in specific  instances cast strong doubts on 
current practices, especially when considered together with other circumstantial evidence of 
possible irregularities in  the current system found e.g. through International Energy Agency 
and/or Commission activities and/or assessments. 
In particular, analysis of the current system  reveals flaws which mi ght prevent it from 
functioning suitably in case of an actual s upply disruption. There are doubts whether the 
current system could guarantee that the stocks held for emergencies would be fully available 
and could be effectively mobilized as needed . The EU also lacks coordinated intervention 
procedures, rendering prompt decision making and effective actions very difficult in practice. 
Finally, the current system exists in parallel with an IEA system, resulting in dual obligations 
for Member States who are also members of the IEA. 
A public consultation was carried out between Ap ril and June 2008 to ascertain the views of 
all interested parties on possible revision of the existing legislation on emergency oil stocks, 
including platforms such as the Oil Supply Gr oup and the Fossil Fuels (also known as Berlin) 
Forum, informal meetings with Member Stat es, the stakeholder community and external 
experts, and the external expertise of  the International Energy Agency (IEA). 
Based on the results of these consultations , the Commission adopted  in November 2008 a 
Proposal for a Council Directive imposing an obligation on Member States to maintain 
minimum stocks of crude oil and/or petrol eum products (COM/2008/0775 final).The proposal 
pays special attention to the provisions addr essing availability of stocks, administrative 
arrangements needed for proper stocks manage ment and rules for an EU crisis mechanism 
that could work complementarily with the IEA rules. 
6.2.2.  Evaluation of the current position 
The draft legislation is presentl y discussed in the Council. Its adoption is foreseen for late 
2009 and will represent a satisfactory developmen t which will improve the current situation. 
EN 98   EN Once adopted, the proposal will replace the current three pieces of EU legislation on 
emergency stocks. By aligning the stockholding obligation with that of the IEA, it will also 
simplify Member States’ administrative procedures. 
6.2.3.  Evaluation results 
The Commission's resources will be concentrat ed on the negotiation and adoption of the new 
Directive, and its correct implementation afterwards. 
6.2.4.  Sector summary 
Analysis of the current system for the security  of supply in oil and petrol revealed some 
weaknesses that might prevent it from functi oning suitably in case of an actual supply 
disruption, due in particular to the lack of coordinated interven tion procedures at EU level, 
that would rend a prompt and ef fective reaction very difficult in practice, and to the co-
existence of the EU system with the IEA syst em, resulting in dual obligations for Member 
States who are also members of the IEA. 
The proposal for a new Directive that intends to replace the current three pieces of EU 
legislation on emergency stocks pays spec ial attention to the provisions addressing 
availability of stocks, admini strative arrangements needed for proper stocks management and 
rules for an EU crisis mechanism that will be complementary to th e IEA rules, and will 
contribute to simplify Member States’ administrative procedures. 
6.3. ENERGY - Renewable energy sources 
6.3.1.  Current position 
6.3.1.1.  General introduction 
Main pieces of Community acquis are: - Directive 2001/77/EC of the European Parlia ment and of the Council of 27 September 2001 
on the promotion of electricity from renewable energy sources in the internal electricity 
market  
- Directive 2003/30/EC of the Eu ropean Parliament and of the Council of 8 May 2003 on the 
promotion of the use of biofuels or other renewable fuels for transport. 
- Directive 2009/28/EC of the Eu ropean Parliament and of the Council of 5 June 2009 on the 
promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC. 
6.3.1.2.  Report on the work done in 2008 
A range of infringement procedures have been launched to encourage Member States to take 
further action; 16 cases are still open. The inadequate action by Member States reflects the need for a stronger regulatory framework. The Commission is still pursuing Member States 
who are not making sufficient pr ogress towards their targets. In 2008 several cases were 
successfully closed. 
EN 99   EN But in addition, in January 2008 the Commissi on proposed a new Directive on the promotion 
of the use of energy from renewable sources,  which imposes legall y binding targets and a 
range of supplementary measures that should spur  growth in the future, to enable the EU to 
reach the new 20% 2020 target. 
The successful negotiations on this proposal resu lted in political agreement in December and 
adoption of Directive 2009/28/EC. Thus the Comm unity will have a new legal framework for 
the promotion of renewable energy from 2010 and the two existing directives will be repealed. 
6.3.2.  Evaluation of the current position 
Whilst some progress has been made, the EU is unlikely to meet the 2010 targets established 
by the Directives. 
Regarding Directive 2001/77/EC only six Member States have made over 50% of the effort 
needed to each their 2010 target  (based on their reference year);  eight Member States actually 
have the same or even a lower share of renewabl e electricity than in their reference year and 
five Member States had negative growth in th eir renewable electricity share in the last two 
years. 
Regarding Directive 2003/30/EC, fi ve Member States had not made any of the effort needed 
to reach their 2010 targets and only one Member State has reached its target. In addition 15 
Member States achieved zero or even negative growth in their share of renewable energy in transport in the last two years. 
6.3.3.  Evaluation results 
6.3.3.1.  Priorities 
A progress report issued in [April 2009 (COM (2009)192)] on the Directives builds on the 
findings of the earlier progress repor ts (COM(2006)849 and SEC(2008)57).  
6.3.3.2.  Planned action 
As the 2010 target is essentially a minimum re quirement for the agreed 2020 targets in each 
Member State, efforts will be dedicated to ensu re the enforcement of the existing directives.  
In addition, the Commission will open pro ceedings against the worst performing Member 
States as a signal that the 2010 targets must still be achieved.  
6.3.4.  Sector summary 
The Commission has continued to enforce the existing acquis  on renewable energy and the 
progress reports it has prepared ov er the years have highlighted the inadequate attention given 
to this issue by most Member States. The Commission therefore proposed a new, broader 
legislative regime, in the context of the en ergy and climate package.  Many resources were 
devoted in 2008 to prepare, explain and then ne gotiate the new Directive, which was agreed in 
December 2008. Year 2009 will be  spent helping Member States implement the new 
Directive (preparing the template for the national action plans, guidance on biofuel 
sustainability, transparency platform…). This will ensure that the ground is prepared for 
Member States to develop their renewable en ergy sources to achieve their 2020 objectives.  
EN 100   EN 6.4. ENERGY - Energy Efficiency of Products 
6.4.1.  Current position 
6.4.1.1.  General introduction 
Main provisions in this field are as follows: - Directive 2005/32/EC of 6 July  2005 establishing a framework for the setting of ecodesign 
requirements for energy-using products 
- Directive 92/75/EEC of 22 Se ptember 1992 on the indication by labelling and standard 
product information of the consumption of  energy and other resources by household 
appliances 
6.4.1.2.  Report on the work done in 2008 
With regard to the energy efficiency of products the activity was focused on: 
(a) the implementation of Fram ework Directives 2005/32/EC a nd 92/75/EEC. To this end 6 
public consultations and 4 mee tings of the Committee on the Ec odesign and Energy Labelling 
of Energy-using Products (EELEP) were held. This has led to the endorsement by the 
Committee and a subsequent adoption by the Co mmission of 5 implementing regulations of 
Directive 2005/32/EC, setting ecodesign requir ements for standby and off mode electric 
power consumption of electrical  and electronic house hold and office equipment, for external 
power supplies, for simple set-top boxes, for te rtiary and domestic sector lighting equipment 
(including a phase-out of incandescent bulbs). Th ese implementing measures will be directly 
applicable in Member States and are expect ed to result by 2020 in annual energy savings 
amounting to 125 TWh. In parallel there was ongoing work (preparatory studies, impact assessments, stakeholder meetings) for the preparation of additional implementing measures for almost 20 product groups. In what regards the transposition of Directive 2005/32/EC, out 
of the 21 infringement procedures for non-communi cation of transposition that were initiated 
in September 2007 all but 5 coul d be closed by the end of 2008. 
(b) the revision of Framew ork Directives 2005/32/EC
116 and 92/75/EEC117, the latter as a part 
of the Commission's Second Strategic Energy Re view - Securing our Energy Future adopted 
in November 2008. The two proposal s essentially aimed at broade ning the scope of the two 
directives, to include also energy-related products. Furthermore the recast of Directive 
92/75/EEC aimed at simplifying legislation an d ensuring a uniform implementation on the 
internal market by using impl ementing Regulations instead of  implementing Directives. It 
also clarifies the respective responsibilities of manufacturers and di stributors as regards 
labelling by aligning the according definitions  with the newly adopted 'New Approach' 
package. Both proposals were preceded by publ ic consultations and were accompanied by 
impact assessments. 
(c) the tabling of a new legislative proposal on the labelling of tyres with respect to fuel 
efficiency and other essential parameters (COM /2008/0779) which aims at increasing vehicles 
                                                 
116 Proposal for a Directive of  the European Parliament and of the Council establishing a framework for the 
setting of ecodesign requirements for energy related products (COM(2008)399) 
117 Proposal for a Directive on the indication by labelling and standard product information of the 
consumption of energy and other resources by energy-related products (COM(2008)778) 
EN 101   EN fuel efficiency while supporting the market transformation towards fuel efficient tyres. The 
proposal was preceded by a public consultation and was accompanied by an impact assessment. 
All of the above activitie s contributed to the EU goals on energy efficiency. 
6.4.2.  Evaluation of the current position 
The activities carried out in 2008 resulted in the tabling of seve ral legislative proposals that 
are expected to have a significant contribution to the EU goals on ener gy and climate change. 
These activities also paved the way for th e adoption of additional measures in 2009.  
6.4.3.  Evaluation results 
6.4.3.1.  Priorities 
Priority will be given to the enforcement of th e existing legislation an d to ensuring that, as 
from 2009, the forthcoming legislation and acc ompanying measures are applied by Member 
States as swiftly and quickly as possible. 
6.4.3.2.  Planned Action 
Efforts will be concentrated in the negotia tion and forthcoming adoption by the Council and 
the European Parliament of the three legisl ative proposals on energy labeling, ecodesign and 
labeling of tyres. 
Resources will also be devoted to the prepar ation of implementing measures concerning the 
ecodesign and labeling of such products as te levisions, refrigerators, washing machines, 
motors, water heaters and other. 
6.4.4.  Sector summary 
In the context of the Second Strategic En ergy Review adopted in November 2008, the 
Commission's activities in the field of Energy Ef ficiency of Products are concentrated in the 
enforcement of the existing acq uis and in the negotiation an d forthcoming adoption by the 
Council and the European Parliament of the three legislative proposals on energy labeling, 
ecodesign and labeling of tyres.  It is also expected that the Commission will adopt several 
implementing measures under Directive 2005/32/ EC and Directive 92/75/EEC addressing 
such products as televisions, refrigerators, wash ing machines, motors, wa ter heaters and other. 
6.5. ENERGY - Energy performance of buildings  
6.5.1.  Current position 
6.5.1.1.  General introduction 
Main piece of Community acquis is Directive 2002/91/EC of the European Parliament and of 
he Council of 16 December on the energy performance of buildings. 
6.5.1.2.  Report on the work done in 2008 
The main activity in the field of  energy efficiency in the buildi ng sector was the tabling of a 
proposal for a recast of the Directive of the Eu ropean Parliament and of the Council on the 
EN 102   EN energy performance of buildings (COM(2008)780fin al), as a part of the Commission's Second 
Strategic Energy Review - Securing our Ener gy Future in November 2008. This proposal 
intends to simply and strengthen the provision s of current Directive 2002/91/EC on the energy 
performance of buildings (hereafter: "EPBD") a nd thus to increase the energy efficiency of 
Europe's building stock, to tackle climate change and to contribute to an increased security of 
energy supply. 
In order to provide the Comm ission with the necessary input and background information, 
several consultation rounds and events were organised. 
During the second EU Sustaina ble Energy Week in January  2008 a specific conference 
focused on the Commission's ideas for extending the scope of the Directive and discussed the 
practical aspects of its implementation with the involvement of different stakeholders who are 
engaged in the daily application of the EPBD. This stakeholder confer ence was supplemented 
by 2 meetings of the Member States' repres entatives of the Energy Demand Management 
Committee (buildings formation) . The public had a chance to express its views during the 
public consultation that was held between April and June. Apart from the organised 
consultation initiatives, a great effort was ma de in answering numerous  individual opinions 
and requests for information.  
This effort in dissemination and consultation wa s continued with the further development of 
the Buildings Platform ( www.buildingsplatform.org ) as an information point with regard to 
the Energy Performance of Buildings Dire ctive. To support European countries in 
implementing the Directive, the Concerted Action EPBD was further developed by the 
Commission. This instrument is intended to promote dialogue a nd exchange of best practice. 
As an active forum of nationa l authorities from 29 countries, it focuses on finding common 
approaches to the most effective impl ementation of this EU legislation.  
The work on the new proposal did not divert the attention from the enforcement of the 
existing legislation. Infringement proceedings continued against 13  Member States for failure 
to notify the transposing measures for the Directiv e; 13 cases could be closed in the course of 
the year, after notification of the relevant te xts. The examination of the notified national 
implementing measures having highlighted some shortcomings, the Commission opened a 
total of 6 new non-conformity cases. 
6.5.2.  Evaluation of the current position 
Overall, it can be concluded th at the present situation is evol ving according to the priorities. 
The Commission has tabled an ambitious proposal that strengthens the cu rrent legislation; it 
also made considerable progress in enforcing its existing legislation.  
6.5.3.  Evaluation results 
6.5.3.1.  Priorities 
Attention will focus on the enforcement of the existing legislation and to ensuring that, as 
from 2009, the forthcoming legislation and acc ompanying measures are applied by Member 
States as swiftly and quickly as possible. 
EN 103   EN 6.5.3.2.  Planned Action 
Efforts will be concentrated in addressing the shortcomings in the implementation of 
Directive 2002/91/EC and in paving the way for the implementation of the newly proposed 
legislation recasting this Directive. 
6.5.4.  Sector summary 
In the context of the Second Strategic En ergy Review adopted in November 2008, the 
Commission's activities in the field of Energy Pe rformance of Buildings are concentrated in 
the enforcement of Directive 2002/91/EC and in  the negotiation and forthcoming adoption by 
the Council and the European Parliament of the newly pr oposed recasting Directive. 
6.6. ENERGY - Energy end-use efficiency and energy services 
6.6.1.  Current position 
6.6.1.1.  General introduction 
Main piece of Community acquis is  Directive 2006/32/EC of the European Parliament and the 
Council of 5 April 2006 on energy end-us e efficiency and energy services. 
6.6.1.2.  Report on the work done in 2008 
With regard to Energy end-use efficiency and en ergy services, the efforts in consolidating the 
existing legislation were continued. Focus wa s laid on the implementation by the Member 
States and the follow-up of their National En ergy Efficiency Action Plans (NEEAPs). After 
ensuring that all Member States complied w ith their reporting obligations, the Commission 
started with the assessmen t the submitted reports. 
The Plans submitted varied considerably in quality, and since this reporting effort was a first 
for the Member States, the Commission atta ched great importance to consultation and 
dialogue. In meetings with representatives of  the Member States the Commission conveyed its 
observations, giving them the opportunity, where necessary, to review/improve their Plans. 
An overall discussion was organi sed under the umbrella of the EU Sustainable Energy Week. 
By helping the Member States meeting their obligations, the Commissi on contributed to the 
strengthening of their energy policy and to the sustainabi lity of their individual goals. 
The Commission also pursued the implementati on of the Directive by organising two Energy 
Demand Management Committee meetings (energy services formation) and an equal number 
of expert working groups. Apart from discussi ng the progress on the NEAAPs, a major effort 
was made in preparing the development of a se t of harmonised energy efficiency indicators. 
The overall effort on energy end-use efficiency and energy services resulted in the 
Communication "Energy efficien cy: delivering the 20% target" (COM(2008)772 final). This 
document provides an analysis of the efforts ma de in the field of energy efficiency. Although 
it is too early to assess the full effects the exis ting legislation, a quantit ative evaluation of the 
expected impact of the most relevant effici ency measures when fully implemented, reveals 
that the EU and Member States are not doing well enough and that more action is needed. 
EN 104   EN 6.6.2.  Evaluation of the current position 
As far as the establishment of the NEEAP s is concerned, the situation is stable and 
acceptable . The Member States have generally reacted positively to our remarks on their first 
NEEAPs and this should bode well for the quality  of the subsequent NEEAPs, the next of 
which, the second, is to be submitted not later than 30 June 2011. 
Regarding transposition, the Commission will start an in-depth analysis of the notified 
legislation and, where necessary, start in fringement proceedings for non-compliance. 
6.6.3.  Evaluation results 
6.6.3.1.  Priorities 
Primary attention will be paid to the enforcement of the existing legislation. 
6.6.3.2.  Planned Action 
Efforts will be concentrated in making sure that Member States are taking appropriate 
measures to transpose the provisions of the Di rective 2006/32 into natio nal law and that they 
are applied and enforced effectively. 
6.6.4.  Sector summary 
With regard to Energy end-use efficiency  and energy services, focus was laid on the 
implementation by the Member States of the Directive and the follow-up of their National Energy Efficiency Action Plans (NEEAPs). Alt hough it is too early to assess the full effects 
of the existing legislation, a quantitative evaluation of the expected impact of the most 
relevant efficiency measures when fully implem ented, reveals that more action is needed at 
EU and national level. Efforts will therefor e concentrate in consolidating the existing 
legislation, monitoring the actual implementatio n and enforcement of Directive 2006/32 and 
addressing cases of non-compliance. 
6.7. ENERGY - Combined heat and pow er generation (cogeneration, CHP) 
6.7.1.  Current position 
6.7.1.1.  General introduction 
Main piece of legislation is Directive 2004/8/EC of the Eur opean Parliament and of the 
Council of 11 February 2004 on the promotion of cogeneration based on a useful heat demand 
in the internal energy market. 
6.7.1.2.  Report on the work done in 2008 
Work done during 2008 with regard to cogene ration is well reflected in the Commission's 
Second Strategic Energy Review - Securing our  Energy Future adopted in November 2008. 
The main achievement was the approval of the detailed guidelines  for calculation of 
electricity from cogeneration (C(2008) 7294)  in November 2008. These guidelines are the 
result of a extended dialogue between the Commission and the Member States. In the 
framework of the adoption procedure, 2 co mmittee meetings have been organised. The 
unanimous approval by the Committee Member s showed the general acceptance of the 
EN 105   EN Commission's proposal. The decision on the deta iled guidelines is a key element in the 
implementation process of the Directive.  
The adoption of the guidelines al so allowed the Commission to st ep up its efforts in enforcing 
the implementation of the Directive. Member Stat es now dispose of all elements necessary for 
a complete transposition of all their obligations. 
In addition the Commission also issued the communication "Europe can save more energy by 
combined heat and power generation" (COM( 2008) 771 final). With this Communication the 
Commission intended to report on the current  status of the combined heat and power 
generation in the EU, and to presen t possibilities for its development. 
6.7.2.  Evaluation of the current position 
In general, the situation regarding cogenera tion is evolving. Although some Member States 
encounter difficulties in meeting their repor ting and transposition obligations, the overall 
trend is positive. 
The Guidelines for calculation of electricity fr om cogeneration having been adopted, there is 
no remaining obstacle for full tr ansposition of th e Directive. 
6.7.3.  Evaluation results 
6.7.3.1.  Priorities 
Primary attention will be paid to achieving full transposition in  the Directive in all Member 
States and to remove outst anding barriers to the de velopment of cogeneration. 
6.7.3.2.  Planned action 
The Commission will increase its efforts with re gard to the follow-up and enforcement of the 
existing legislation. Six months after the p ublication of the Guidelines, infringement 
procedures will be opened for failure to implement the Directive provisions, as relevant. 
The Commission will continue to  monitor the proces s and will present further proposals if 
appropriate to foster cogenera tion. As a first step, the Commi ssion will evalua te the Energy 
Efficiency Action Plan in 2009 with  a view to producing an update. 
6.7.4.  Sector summary 
As monitoring of the implementation continues,  despite the absence of or late reporting by 
Member States, the Commission acknowledges the administrative and non-administrative 
barriers hampering the development of cogene ration. Some of these barriers have been 
already addressed by the Commission, such as th e set-up of harmonised efficiency reference 
values and the adoption of Community detailed guidelines for the calcu lation of electricity 
produced from cogeneration, as previously mentioned. 
EN 106   EN 6.8. ENERGY - Nuclear Energy 
6.8.1.  Current position 
6.8.1.1.  General introduction 
In terms of control of implementation, the main  piece of secondary legislation is Directive 
96/29/Euratom laying down basic sa fety standards for the protection of the health of workers 
and the general public against the dangers arising from ioni zing radiation (Basic Safety 
Standards Directive), as supplem ented by a series of directiv es covering fields such as 
medical applications of ionising radiation (Dir ective 97/43/Euratom), information in case of 
radiological emergency (Decisi on 87/600/Euratom and Directive 89/618/Euratom); protection 
of so-called "outside workers" (Directive 90/ 641/Euratom); shipments of radioactive waste 
and substances (Directive 2006/117/Euratom and Regulation (Euratom) No 1493/93), and the 
control of high activity s ealed radioactive sources (Directive 2003/122/Euratom). 
Commission Regulation (Euratom) No 302/2005 de fines the nature and extent of the 
requirements referred to in Articles 78 and 79 of the Euratom Treaty on the application of nuclear safeguards. 
6.8.1.2.  Report of work done in 2008 
The Group of Experts provided for in Article 31 of  the Euratom Treaty met twice in June and 
November 2008. One of the June meeting's ma in topics was the positive opinion given by the 
Group on the draft proposal for a Euratom Counc il Directive on radioac tive substances in 
water intended for human consumption. The November meeting discussed mainly the 
ongoing recast of the Basic Safe ty Standards Directive. Du ring this meeting the Group 
delivered a positive opinion on the extensi on for 10 years of Council Regulation 733/2008 
(EC) No 733/2008 (codified version of Council Regula tion (EEC) No 737/90) on the 
conditions governing the import of agricultura l products following the Chernobyl accident.  
The European High level Group on Nuclear Sa fety and Waste Management or European 
Nuclear Safety Regulators Group (HLG or ENSREG ) met five times. In particular, it gave its 
input to the Commission's draft proposal on th e nuclear safety directive. The Group has to 
submit regular reports on its activities to th e Commission, the European Parliament and the 
Council. The first report of the Group is ex pected by 17 July 2009, two years after its 
creation. 
The European Nuclear Energy Forum (ENEF), endorsed by the European Council in March 
2007, is a platform to engage in a broad discussion among all stakeholders on the 
opportunities and risks of nuclear  energy. Hosted successively in Bratislava and Prague, 
ENEF held its two biannual meetings on 22-23 May and 3-4 November 2008. It gave a 
supportive opinion on the requirement to propose a revised nuclear safety directive. The next 
plenary session of the Forum will take place in Prague under the Czech Presidency on 29 May 
2009. 
In 2008, the Commission dealt with 31 notificati ons under Article 33 Euratom. Most of them 
concerned the implementation of Directive 2006/117/Euratom of 20 November 2006 on the 
supervision and control of shipments of radi oactive waste and spent fuel, whose correct 
implementation was one of the main priori ties of the Commission Services in 2008. The 
submission of draft texts unde r Article 33 Euratom allows the Commission to make 
appropriate recommendations or remarks before the finalisation of the national procedure for 
EN 107   EN the adoption of transposition measures, so that possible instances of non-compliance can be 
identified even before  the texts are adopted. 
The Commission services conducted seven verifi cation missions under Article 35 Euratom. 
The purpose was to provide an independent assessment on the adequacy of facilities intended to monitor levels of radioactivity in the en vironment. All verifica tions started with a 
preliminary audit of the monitoring and insp ection activities carrie d out by the relevant 
national authorities and of th e legal framework in force. 
Seven opinions were adopted by the Commissi on in accordance with Article 37 of the 
Euratom Treaty, concerning plans for th e disposal of radioactive waste. 
On 15 July 2008, the Commission issued its opinion under Article 43 Euratom Treaty 
concerning the completion on units 3 and 4 of Mochovce Nuclear Power Plant in the Slovak 
Republic. In its viewpoint the Commission underlined, inter alia, the need of additional security requirements to be fully in li ne with the Euratom Treaty requirements. 
On external relations, Article 103 Euratom es tablishes a procedure for the preliminary 
examination of the compatibility with the Treat y of draft agreements or contracts which are 
about to be concluded, within the scope of the Treaty, between a Memb er State and a third 
party. In 2008, a total of 23 notificati ons were examined by the Commission. 
Under Article 105 Euratom, new Member States communicate to  the Commission, within 30 
days from their accession to the EU, the agreem ents or contracts they may have concluded 
with a third party prior to their accession. Concerning the two newest Member States, 
Bulgaria and Romania, the contr acts and agreements that could not  be dealt with in 2007 were 
checked and grandfathered in 2008. 
In the Euratom area, several long-standing infri ngement procedures could be closed in 2008 
and the total number of infringement procedures decreased to a total of  6 at the end of the 
year. Prioritisation was not applied in the manage ment of infringement procedures, as all files 
could be managed in the normal timeframe and fe ll roughly under the same level of priority.  
During 2008, 6 petitions were deal t with related to the Euratom provisions. Adequate answers 
were provided but the EP's Petitions Committee di d not yet accept the closure of the cases.  
A proposal for a Council Directive (Euratom) setting up a Community framework for nuclear 
safety was adopted by the Commission on 26 Nove mber 2008. It transposes into Community 
law the IAEA Fundamental Safety Principles  and the obligations of the Convention on 
Nuclear Safety. It strengthens substantially th e independent role of national Regulators and 
improves transparency on nuclear safety. 
As part of the Second Strategic Energy Revi ew, the 2007 Nuclear Illustrative Programme 
(PINC) was updated, making a number of recomm endations: proposing that future new build 
is of the latest technology; ensuring the high est standards of nuclear safety as well as 
simplifying and harmonising the cu rrently differing licensing requi rements and procedures in 
the Member States. It highlights that by 2020, n early two-thirds of EU  electricity production 
could be carbon free if rapid investment decisi ons are taken with regard to renewable energy 
sources as well as nuclear energy. 
The revision of the Basic Safety Standard s Directive is also the opportunity for the 
consolidation of existing radi ation protection legislation invol ving four other Directives and 
EN 108   EN incorporating one Commission Recommendation. In 2008, the revision and consolidation 
made good progress and a first en tire draft text was prepared. Part of the draft text was 
presented to the Article 31 Group of  Experts for a first discussion.  
The Commission undertook the revision of its Recommendation on the implementation of 
Art. 37 of the Euratom Treaty with a view to  clarify, simplify and improve its provisions 
based on the experience. In 2008 the revision ma de good progress and after 3 meetings of the 
assigned Working Group of Article 37 Experts, the Commission will be in a position beginning 2009 to prepare a consolidated draft revised text to be pr esented mid 2009 to the 
Article 37 Group of Experts. 
As potential co-sponsor, the Commission took a very  active part in the ongoing revision of the 
International Basic Safety Standards, prepared  by the International Atomic Energy Agency. 
Based on the experience with two radiological alert situations in 2008 (Krsko NPP, IRE 
Fleurus), the Commission undert ook the revision of the ECURIE
118 emergency 
communication guidelines, amongst other reasons  to allow for a reduced threshold for 
international communications  on nuclear incidents. 
Preparations are underway to move towards a broad cooperation agreement with Russia on 
the peaceful uses of nuclear energy, covering nu clear trade based on reciprocity and market 
access (as the current negotiating mandate from  2003 provides) as well as nuclear safety, 
waste management, physical protection, non-prolifer ation, liability issues etc. To this end, a 
revised mandate for negotiation of a broad Eu ratom-Russia cooperation agreement in the 
peaceful uses of nuclear energy is being prepared. 
The Commission adopted a proposal for a Counc il Decision on the new mandate to recast the 
Euratom-Canada agreement, with a view to simplify the current agreement (modified in 
several occasions since it signatu re 50 years ago) and to incl ude, at Canada's request, new 
provisions, mainly on technology transfer  and on the contamination principle. 
Preventive measures were taken for the impl ementation of Directive 2006/117/Euratom on the 
supervision and control of shipme nts of radioactive waste and sp ent fuel, which was due to be 
transposed by 25 December. Its correct implem entation was prepared and supervised by the 
way of 26 procedures under Article 33 Eurato m. On 5 March 2008, the Commission adopted 
the standard document foreseen in the Directive, to be used for all shipments within its scope, and on 4 December 2008, the Commission adopted a Recommendation establishing criteria for the export of radioactive waste and spent fuel to third countries. The criteria aim to enable 
the Member States' competent authorities to eval uate whether a third country to which exports 
are not prohibited has the ability to manage waste or spent fuel safely. 
6.8.2.  Evaluation of the current position 
The current situation for the control of the existing acquis  is stable. Whereas in 2008 a large 
number of existing infringements cases could be  solved and closed, early 2009 the number of 
files increased following the expiry of the Me mber States' deadline for implementation of 
Council Directive 2006/117/Euratom in Decembe r 2008. The resulting workload should be 
manageable, as Member States are expected to make progress with tran sposing this Directive 
in the first months of 2009 (based on the info rmation resulting from Article 33 submissions). 
                                                
 
118 European Community Urgent Radiological In formation Exchange for Nuclear Emergencies 
EN 109   EN The immediate future situation should be manageab le, too, and much effort will be devoted to 
the control of conformity of the most recently adopted Directives, which might result in an 
increase in the number of infringement procedures. 
In the medium term, a significant intensificatio n of the workload is expected when the two 
major proposals for new Directives (on nuclear sa fety and recasting the BSS) will have to be 
implemented.  
6.8.3.  Evaluation results 
6.8.3.1.  Priorities 
A priority objective for 2009 will remain to achieve  a high level of safety and security for the 
European citizens. 
The Commission's efforts will focus on the one hand on consolidating the acquis  in place, 
through the monitoring of the implementation of  most recently adopted directives, and, on the 
other hand, on further legislative developments. 
6.8.3.2.  Planned Action  
A systematic conformity check will be ma de concerning Directiv e 2003/122/Euratom on 
High-Activity Sealed Sour ces and Orphan Sources. 
The control of transposition and implement ation of Directive 2006/117/Euratom on the 
surveillance and control of shipments of radioactive waste and spent fuel will be started. Concerning this Directive, a Commission Reco mmendation is planned for the establishment 
of a secure and effective data transmission system. 
The negotiations for the adoption of a Community framework on nuclear safety will be 
pursued, with a view to a prompt adoption. 
6.8.4.  Sector summary 
Given the renewed and growing interest in nuclear energy, the Commission is called to 
accompany the expected development with an advanced legal and binding framework based 
on the Euratom Treaty that maintains and improve s the high standard of regulation achieved 
in the EU Member States. Primary attention will be given to the consolidation of the existing 
legislation, to the updating of the radiation protection acquis  and to the establishment of a 
legislative framework that allows the Community to fully use its competences in the field of nuclear safety. The key actions in the near future, for which substantial work was already carried out during 2008, will therefore concern the control of implementation of the most 
recent Directives, on high activity radioactive sources and on shipments of radioactive waste and nuclear fuel; the negotiati on and implementation of the pr oposal for a Council Directive 
setting up a Community framework for nuclear safety, and the recast of the Basic Safety 
Standards, for which a proposal is expected during the course of 2010, that will set modern, unified standards for the protection of the hea lth of the citizens in  the European Union. 
EN 110   EN 6.9. TRANSPORT - Passengers' rights 
6.9.1.  Current position 
6.9.1.1.   General introduction 
Since the 2001 White Paper, where the Commission announced the establishment of 
passengers’ rights in all modes of transport and its intention to place users at the heart of 
transport policy, three Regulations will have entered into force by the end of 2009, in the 
sectors of aviation and rail transport: 
- Regulation (EC) Nº 261/2004, establishing commo n rules on compensation and assistance to 
passengers in the event of denied boarding a nd of cancellation or l ong delay of flights;  
-Regulation (EC) Nº 1107/2006 co ncerning the rights of disabled  persons and persons with 
reduced mobility when travelling by air; - Regulation (EC) Nº 1371/2007 on rail passengers’ rights and obligations, applicable as from 
December 2009. 
These pieces of legislation are complemented with Regulation (EC) Nº 2027/97 of 9 October 
1997 on air carrier liability in th e event of accidents, as am ended by Regulation (EC) No 
889/2002. The overall regulatory b ackground on air passenger rights also includes other 
legislation, for example: Re gulation 1008/2008, on common rules for the operation of air 
services in the Community; Directive 96/67, wh ich defines the conditions for access to the 
ground-handling market at European airports, a nd therefore could be used as leverage to 
improve the quality of baggage handling in orde r to prevent baggage damage or mishandling; 
and Regulation (EC) No 2111/2005 of the European Parliament and of the Council of 14 December 2005 on the establishment of a Commun ity list of air carriers subject to an 
operating ban within the Community and on inform ing air transport passengers of the identity 
of the operating air carrier, and repeali ng Article 9 of Directive 2004/36/EC.   
6.9.1.2.   Report on the work done 
The Commission's activities continued efforts in order to guarantee a correct implementation 
of the provisions protecting air passengers' righ ts in general, and those of passengers with 
reduced mobility in particul ar when travelling by air. 
- Passengers with reduced mobility (PRM).
 A stakeholders' confer ence was organised in 
January 2008 to ensure a successful full application of Re gulation nº 1107/2006 as from July 
2008 and to make each category of operators awar e of the specific needs and constraints of 
the stakeholders concerned. A wo rkshop with the PRM organisations  was held to ensure that 
these organisations can fulfil the responsibil ities foreseen. A firs t meeting of National 
Enforcement Bodies (NEB) appointed under th is Regulation was held in December 2008. 
On 7 August 2008, the Commission adopted a Communication119 on the level of 
compensation that can be deemed appropriate  for destroyed, damaged or lost mobility 
equipment. While the number of incidents with this type of equipment seems to be limited, 
the fact is that the value of such specia lised mobility equipment could exceed the amounts 
covered by the Montreal Convention. The training requirements under Regulation Nº 
                                                 
119 Communication on the scope of the liability of air carriers and airports in the event of destroyed, 
damaged or lost mobility equipment of passengers with reduced mobility when travelling by air (COM 
(2008) 510 final). 
EN 111   EN 1107/2006 should help to avoid this kind of in cidents. The report foreseen for 2010 will 
assess again the scale of the problem after the entry into force of this regulation. 
- The APR Regulation. The Comm ission kept working towards a homogeneous application of 
Regulation (EC) No 261/2004 in all the Member St ates; it followed up the use of the standard 
complaint form and the respect of the co mmon understanding between NEB and between 
NEB and air companies. A joint meeting with all NEB, airline and consumer associations was held early December 2008, which started an ev aluation phase on the implementation of the 
Regulation. 
6.9.2.  Evaluation of the current position 
While Regulation 261/2004 ensures a high level of protection for air passengers, the high 
number of complaints and enquiries receiv ed by the Commission from unsatisfied air 
passengers (about 10,000 during 2008), as well as  the outcome of contacts with national 
authorities and stakeholders show that fu ll implementation and enforcement of their 
provisions is not sufficiently ensured in  all situations and Member States. 
As for Regulation 1107/2006, the proactive and prev entive approach adopted to prepare its 
full entry into force in July 2008 has already yielded results insofar as the Commission has 
helped the NEB to establish the basis for an  efficient collaboration and exchange of 
information. From the information gather ed by the Commission in 2008-2009, the main 
problems for a correct a pplication of the Regulation are curre ntly related to the interpretation 
of the exception to the "non discrimination principle" based on safety grounds.  
6.9.3.  Evaluation results 
The priority remains guaranteeing a full app lication of air passenger rights. The Commission 
resources will be concentrated first in ensuring that Member States correctly enforce the regulation and sanction infringements. As part of the ongoing evaluation for the APR 
Regulation, an independent evaluation study wi ll be concluded early in 2010, analyzing the 
four years of operation of Regulation No 261/2004. Secondly, a public consultation will be 
launched before the end 2009, in view of a  communication to be a dopted in 2010 which will 
review the state of play of application by all the parties concerned, including the national 
authorities responsible for enforcing passengers ’ rights. The necessity for possible further 
legislation will be evaluated. 
As for the PRM Regulation, an evaluation study  is currently on-going and will be available 
early 2010. Another meeting with the NEB will be  held in November 2009, in view of the 
report to be adopted early 2010 as reque sted by Article 17 of the Regulation. 
While much attention will be paid to the need fo r the course to procedures, as appropriate, the 
management of enquiries from passengers is  expected to be ra tionalised by national 
authorities and the Commission's resources will be concentrated on the monitoring of the 
activity of the NEB. A collaboration contr act has been thus signed between DG COMM and 
DG TREN in 2008 to take advantage of the syne rgies and "know how" from the two services 
to deal efficiently with the impressive amount of passengers' enquires and complaints. 
6.9.4.  Sector summary 
While the Community legislative framework offers a high level of protection for air 
passengers, including those with reduced mobility, the fact is that respect by air companies 
EN 112   EN and enforcement by national authorities is not always as satisfactory as it should. The 
Commission's efforts are con centrating on removing outstandi ng problems and making sure 
that the Member States assume th eir part of the responsibility.  
Lessons learnt from evaluati ng the application of  air passengers' right s have revealed 
shortcomings in the drafting of the APR a nd the PRM Regulations such as an ambiguous 
definition of the responsibilities of NEB for enforcement and lack of reporting obligations 
from NEB. This has helped the Commission to improve the texts of the two legislative proposals it has adopted at the e nd of 2008 on the rights of passengers when travelling by sea  
and inland waterway and by bus.
120 
The main objectives for 2009-2010 ar e strengthening the rights of pa ssengers in case of lost 
luggage and to assess the need for acti on in the event of airline bankruptcies.  
6.10. TRANSPORT - Inland Waterway Transport  
6.10.1.  Current position 
6.10.1.1.  General introduction. 
Inland waterway transport plays an important ro le for the transport of goods in Europe. More 
than 37 000 kilometres of waterways connect hundr eds of cities and industrial regions. Some 
20 out of 27 Member States have inland wate rways, 12 of which have an interconnected 
waterway networks. The potential for increasing the modal share of inland waterway transport 
is, however, significant. Compared to other mo des of transport which are often confronted 
with congestion and capacity problems, inland waterway transport is  characterized by its 
reliability, its low environmenta l impact and its major capacity for increased exploitation.  
The main pieces of Community acquis  in this field are the following:  
- Directive 2006/87/EC laying down technical requirements for inland waterway vessels, as 
amended. It establishes harmonised conditions for issuing technical certificates for inland waterway vessels. It is aimed at increasing the safety of passengers and freight transport by 
inland waterway in Europe. This Directive re pealed and replaced Dire ctive 82/714/EEC as 
from 30
th December 2008. 
- Directive 2005/44/EC on harmonised river info rmation services (RIS) on inland waterways 
in the Community. It established a framewor k for the deployment and use of RIS in the 
Community and for the establishment and furthe r development of technical requirements and 
specifications for harmonised and interopera ble RIS. It defines further the minimum 
requirements to be fulfilled by Member Stat es to enable the setting-up of RIS.  
6.10.1.2.  Report on the work done in 2008 
During the year 2008 the Community acquis  had considerable developments. 
                                                 
120 Proposal for a Regulation of the European Parliament and the Council concerning the rights of 
passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004; 
Proposal for a Regulation of the European Parliament and of the Council on the rights of passengers in 
bus and coach transport. 
EN 113   EN A follow-up of the transposition of Direct ive 2005/44/EC was performed and continuous 
monitoring of the implementation of the Direct ive was ensured via frequent meetings with 
authorities and stakeholders, expert group m eetings and conformity  checks. Commission 
regulations defining technical specifications were processed, as well as amendments of 
existing Commission regulations de fining technical specifications were prepared. The process 
of ensuring the proper implementation of th e Directive in 2009 and beyond will continue 
along the same line. 
The technical annexes to Directive 2006/87/EC  continued to be fu rther aligned with 
legislation agreed in the fram ework of the Central Commissi on for Navigation on the Rhine. 
For this purpose 3 meetings of  the of experts from EU Member States and the Central 
Commission for Navigation on the Rhine and 2 m eetings of the Inland Waterway Transport 
Committee as regards Technical requirements for inland waterway vessels were held. Three amending Directives were adopted (Commi ssion's Directives 2008/67/EC, 2008/87/EC and 
2008/126/EC) and a fourth amending Directiv e was prepared for adoption in 2009.  
For the proper implementation of the Direct ive regular communication with the Member 
States is performed, a Joint Seminar of Insp ection Bodies from the Member States of the 
Danube Commission, the Central Commission for Navigation on the Rhine (CCNR) and the 
EU was organised in Budapest, workshops have  been attended in Me mber States and an 
unregistered number of questi ons from citizens, and inspecti on bodies were answered. Good 
cooperation with  the International River Commissions  and the United Nations Economic 
Commission for Europe (UN-ECE)  on technical requirements for inland waterway vessels 
was maintained.  
6.10.2.  Evaluation of the current position 
The situation keeps evolving, and an increased  workload is foreseen due to necessary 
legislative developments, including rectificatio ns needed in published legislation, and work 
linked to the fact that the transposition deadline for three new directives elapsed at the end of 
2008. 
6.10.3.  Evaluation results 
As in the past, priority will be given to st rengthening the competitive position of the inland 
waterway transport in the transport system, and to  facilitate its integration into the intermodal 
logistics chain.  
One amending Directive will be proposed af ter a positive advice of the Committee. A 
Corrigendum for several languages has to be prepared and launched. The procedure for the 
recognition of classification so cieties has to be completed. The relation with the River 
Commissions, and especially the chaired secr etary of the Joint Working Group, should be 
reflected. The following projects should be ta ken up: Harmonisation of additional technical 
requirements on zone 1 and 2 waterways and Joint Seminar of Inspection Bodies from the Member States of the Danube Commission, the CCNR and the EU. 
Infringement procedures will be launched against Member States not having transposed the 
newest Directives, and in particular Directiv e 2006/87. Specific follow up will be needed in 
particular in connection with national additiona l requirements and derogations allowed by this 
Directive. 
EN 114   EN 6.10.4.  Sector summary 
With a view to strengthening the competitive pos ition of the inland waterway transport in the 
transport system, and to facilitate its integrat ion into the intermodal logistic, the Commission 
will reinforce its administrative capacity in order to keep developing the harmonisation of additional technical requirements  on zone 1 and 2, on the one hand, and to monitor that the 
individual implementation of Di rective 2006/87, as amended, doe s not prejudice the existing 
harmonisation. 
6.11. TRANSPORT - Logistics and co-modality  
6.11.1.  Current situation 
Council Directive 96/53 on the maximum authorised weight s and dimensions for heavy goods 
vehicles and buses circulating w ithin the Community has been in place for more than 12 years 
already. The Directive sought to eliminate the di fferences between standards in force in the 
Member States which had an adverse effect on the conditions of competition and constituted 
an obstacle to traffic between Member States. This is why common sta ndards for the weights 
and dimensions have been established to permit the improved use of these vehicles by
 
creating a balance between their rational a nd economical use in traffic between MS.  
The Directive  has been completely transposed, and no infringement procedures have been 
started until now. A study has b een performed in 2008 to inves tigate the feasibility for its 
possible amendment in order to increase the e fficiency of heavy goods vehicles. Several 
workshops have been performed in this respect.  
6.11.2.  Evaluation of the current position 
The Community acquis  in this field is generally st able although some adaptations and 
improvements might be appropriate. 
6.11.3.  Evaluation results 
A report for the economic development of co mbined transport and the application of 
Community law in that area is to be drawn up this year in line with  Council Directive 92/106 
on combined transport of goods, aiming to defi ne, where necessary further measures to 
promote combined transport operations. 
6.11.4.  Sector summary 
With a view to improve the efficiency and sustai nability of freight tran sport in Europe, which 
is a main goal of the European transport policy, the Commission will continue to study the necessities and possibilities of further development of the existi ng legislation, as well as the 
necessities for issuing new acts in order to  promote and encourage the performance of 
multimodal transportation as a drive for a compe titive and sustainable freight transport system 
in Europe. 
EN 115   EN 6.12. TRANSPORT - Inland Transport 
6.12.1.  Current position 
6.12.1.1.  General introduction 
In road transport  the most important pieces of legisla tion concern the enforcement of social 
rules, working time and road charging (Directive 2006/22/EC, Directive 2002/15/EC, 
Directive 1999/62/EC , respectively).  
In the rail sector , the 1st railway package (Directives  91/440/EEC as amended, 95/18/EC as 
amended and 2001/14/EC)121 constitutes the basis of the institutional architecture of the 
sector.  
As for road safety , the legislation covers the driving licence (Directive 91/439/EEC), the 
initial qualification a nd periodic training of professional drivers (Dir ective 2003/59/EC), the 
road worthiness testing (Directive 96/96/EC), th e compulsory use of safety belts (Directive 
2003/20/EC) and the registration of vehi cle documents (Directive 99/37/EC). 
The transport of dangerous goods  by road and rail is covere d by two directives (Directives 
94/55/EC and 96/49/EC, respectively). These will be  replaced and repealed as from June 2009 
by Directive 2008/68/EC, also applic able to inland waterways. 
6.12.1.2.  Report on the work done in 2008 
The Commission brought five Me mber States before the Court for not having adopted the 
necessary legislation trans posing Commission Directive 2006/ 22/EC on the implementation 
of European social legislation  relating to road transport ac tivities by 1 April 2007. In three 
cases Member States subsequently notified transposition and the Court cases could be 
withdrawn. Two cases were st ill pending by the end of 2008.  
As regards working time  in road transport, the Comm ission continued the control of 
implementation concerning Directive 2002/15. The national measures of the Member States 
were assessed and in the case of six Member States the transposition measures had to be 
considered not to be in conformity leadi ng to infringement proceedings. Infringement 
proceedings were also initiated against seven Me mber States that failed to submit the biannual 
report on the implementation of this Directive. 
The Commission adopted a proposal to modify  Directive 2002/15/EC. The aim of this 
proposal is four-fold: to  clearly put false self-employed dr ivers in the category of mobile 
workers, to exclude genuine self-employed drivers from the directive, to make the 
enforcement more harmonised and to  clarify the night time provisions. 
In 2008 the Commission closed 4 infringement proceedings concerning the non-conformity of 
national measures with Directiv e 1999/62/EC on the charging of heavy goods vehicles for the 
use of certain infrastructures ; one new case was opened. The Commission pursued one 
Member State for its road charging system  for passenger cars which the Commission 
considered incompatible with Article 12 TEC. 
                                                 
121 Directive 91/440/EEC on the development of the Community's railways; Directive 95/18/EC on the 
licensing of railway undertakings, and Directive 2001/14/EC on the allocation of railway infrastructure 
capacity and the levying of charge s for the use of railway infrastr ucture and safety certification. 
EN 116   EN The Commission opened infringe ment proceedings against 19 Member States which had 
failed to transpose in time Directive 2006/ 38/EC, modifying Directive 1999/62. All Member 
States were required to do so by 10 June 2008 at the latest. The Di rective establishes a 
common European framework for charging hauliers  for the costs of the use of infrastructure 
in order to avoid distortions of competition between transport undertakings of the Member 
States and to ensure the proper functioning of the internal market . 15 cases were resolved in 
the reporting period and 4 cases remain pending. 
In the rail sector  Member States efforts focussed on the transposition of the Directives of the 
first railway package (91/440/ EEC as amended, 95/18/EC as amended and 2001/14/EC), 
which was due by 15 March 2003 or upon accession in the case of the new Member States. 
The first railway package defines basic requiremen ts such as the independence of the essential 
functions of an infrastructure manager from  rail operators, the charging scheme for 
infrastructure charges, the setti ng up of rail regulatory bodies. On this basis, it provides for the 
opening of the rail freight market to all eu-licensed operators, from 2003 on the Trans 
European Rail Freight Network, from 1 January 2006 for all international rail freight transport 
and from 1 January 2007 for all rail freight transport. 
The Commission had adopted on 3 May 2006 a report on the implementation of the 1st 
railway package (COM(2006) 189 fi nal) which contained important  findings on the state of 
implementation in the Member States and annou nced the criteria that the Commission would 
apply for controlling implementation in each i ndividual member state, in particular on the 
issue of independence of essential functions.  
In order to complement the general findings of  the report with concre te data from Member 
States, and to evaluate whether these Directives  had been correctly and completely transposed 
into Member States' law and regulations, the Co mmission's services sent out questionnaires to 
the Member States in June and November  2007. After analysing the replies to these 
questionnaires, the Commission sent letters of fo rmal notice to 24 Member States on 27 June 
2008. 
In the road safety  sector currently 17 infringement proceedings are open, all for non-
communication of the transpos ition of directives. Two pr oceedings concerning the non-
transposition of Directive 2003/ 59/EC on professional driver e ducation are pending before the 
European Court of Justice. Four Member St ates received reasoned opinions for the non- 
communication of the transpositi on of the Directive 2 007/38/EC on the retrofit of blind spot 
mirrors, which had to be transposed by 6 August 2008. The remaining proceedings concern the non-transposition of an amendment to  directive 91/439/EEC on driving licences 
introduced by directive 2008/65/EC, which n eeded to be transposed by 30 September 2008. 
6.12.2.  Evaluation 
As far as the enforcement of social rules
 and working time  in road transport is concerned, the 
Commission assessed in detail the application of  the working time rules in the Member States, 
in particular as regards the possible inclusi on of self-employed in the scope of Directive 
2002/15/EC. The assessment showed that the grounds for the inclusion of genuine self-
employed drivers in the working time were not sufficient as the policy objectives (including 
road safety) pursued by the legi slation in respect of this category of drivers were already 
sufficiently ensured by other applicable rule s, namely Regulation (EC) 561/2006 on driving 
time and rest periods and Regulation (EEC) 3821/85 on the recording equipment (tachograph). In addition, any enforcement of working time rules concerning genuine self-
EN 117   EN employed drivers appeared to be ineffective, and out of proportion with the high cost related 
to it. Therefore, this specific category of drivers should remain  excluded from the scope of the 
Directive.  
In the railway sector  the letters of formal notice sent to 24 Member States for incorrect 
transposition of the first railway package target ed three main shortcomings: 1) the lack of 
independence of the infrastructure manager in relation to railway operators, 2) insufficient 
implementation of the rules of the Directive on track access charging, such  as the absence of a 
performance regime to improve the performan ce of the railway network and the lack of 
incentives of the infrastructure manager to reduc e costs and charges and 3) the failure to set 
up an independent regulatory body with strong pow ers to monitor competition in the railway 
sector and rule on complaints. 
These are areas which are essential for the ope ning of the railway markets in the Member 
States.  
The opening of infringement proceedings in the road safety  sector is due mainly to the late 
transposition of the directives. Apart from infringement procedures, the Commission is 
requested to take a position on the very numerous petitions on this subject which citizens address to the European parliament These pe titions mainly concern the non recognition of 
driving licences and ro ad traffic laws of the Member States. 
6.12.3.  Evaluation results 
For the road transport
 sector, four Directives will requi re special atten tion also in 2009: 
- Directive 2002/15, on the organisation of worki ng time of persons performing mobile road 
transport activities, as a c onsequence of the proposed modification of the night time 
provisions; 
- Directive 2006/22, determining the minimum level of enforcement for the European 
provisions on driving times and rest pe riods, and on the use of the tachograph; 
- Directive 2006/38 amending Directive 1999/62/EC  on the charging of heavy goods vehicles 
for the use of certain infrastructures. The cont rol of the correct application of the new rules 
which had to be transposed by June 2008 will continue; 
- Directive 2006/1/EC on hired vehicles, the app lication of which by Member States will be 
reviewed with a view to identifying shortcomings of the current regime and possible amendments thereto. 
In the rail
 sector and on the basis of  the replies by Member States to the letters of formal 
notice the Commission will consider how to pro ceed on the infringement cases in 2009. These 
proceedings will concentrate on the remaining issu es that could not be resolved in the three 
areas mentioned above.  
In the field of road safety  sector, the Commission's services  will continue informing and 
reminding the Member States in bilateral and multilateral meetings of their transposition obligations 
EN 118   EN 6.12.4.  Summary by sector 
6.12.4.1.  Road transport Sector 
The ongoing revision of the market access rules fo r the transport of goods and passengers by 
road will be finished in 2009. By then the regul atory framework of the road transport sector 
will be modernised and streamlined. The Commission will continue to control the 
implementation and application of the social ru les, in close cooperation with the Member 
States. In the area of road charging the Co mmission has proposed an amendment to the 
"Eurovignette" Directive currently in force allo wing for the inclusion of external costs in 
infrastructure charging. In parall el, the control of the implementa tion of the rules presently in 
force will continue. 
6.12.4.2.  Railway sector 
In the rail sector and on the ba sis of the replies of Member St ates to the letters of formal 
notice (1st railway package), and information on legislative changes or commitments, the 
Commission will consider how to proceed on the infringement cases in 2009. These proceedings will concentrate on the remaining issu es that could not be resolved in the three 
areas mentioned above (independenc e of essential functions of an  infrastructure manager from 
rail undertakings, infrastructu re charging, independence and po wers of regulatory bodies).  
6.12.4.3.  Road Safety sector 
As far as the road safety sector is concerned the main problem remains the late notification of 
the transposition of directives. This is why effo rts will continue to be undertaken to inform 
and remind the Member States in bilateral and mu ltilateral meetings, an at an early stage, of 
their transposition obligations within the agreed  deadlines. This will concern the directives 
which still need to be transposed, namely the directive on road infrastructure safety management and the third driving licence directive. 
6.13. TRANSPORT - Air Transport 
6.13.1.  Current position 
6.13.1.1.  General introduction 
Internal market, air transport agreement s and multilateral relations sector  
The sector covers areas such as the implem entation measures necessary following the so 
called "Open skies judgment s" of 5 November 2002,
122 where the Court identified a number 
of breaches of Community law in existing bi lateral agreements between certain Member 
States and the United States of America, a nd which implied assisting Member States to 
remedy the situation of ar ound 1400 bilateral agreements. 
It covers also areas of the internal market  such as the monitoring of Public Service 
Obligations and Computer reservation System. 
The sector of the internal market, air transport agreements and multilateral relations is mainly 
ruled by Treaty, Court ju dgments and regulations. 
                                                 
122 C-466/98, C-467/98, C-468/98, C-469/98, C-471/98, C-472/98, C-475/98 and C-476/98.  
EN 119   EN The most important legal instruments and related work and reporting in 2008 are: 
- Articles 10 and 43 of the EC Treaty - Case-law on external competences (ERTA)
123 
- Regulation (EC) No 847/2004 on the negotia tion and implementation of air service 
agreement between Member States and third countries (Co mmittee Regulation). 
- The new Regulation (EC) No 1008/2008 of 24 September 2008 which replaces (recasts) 
Regulations No 2407/92, No 2408/92 and No 24 09/92 on common rules for the operation of 
air services in the Community. 
- Regulation (EC) No 2299/89 of 24 July 19 89 on a code of conduct for computerized 
reservation systems. 
Single sky and modernisation of air traffic control 
In this sector, the Commission is respons ible for implementing and developing the 
Community air traffic management (ATM) polic y in order to achieve the Single European 
Sky (SES). 
The sector is mainly dealing with the impl ementation of the following legal instruments: 
- The framework Regulation (EC) N° 549/2004; - The service provision Re gulation (EC) N° 550/2004; 
- The airspace Regulation (EC) N° 551/2004; - The interoperability Regulation (EC) N° 552/2004. - Directive 2006/23/EC on a Community  air traffic controller licence 
Air safety and environment  
The sector deals with the application and furt her development of the aviation safety regime 
within the European Community. 
It covers also the areas dealing with air tr ansport environment (such as Emissions Trading 
Scheme, ETS) and noise-related legislation. 
The air safety and environment sector is mainly ruled by Regulations and Directives. 
The most important legal instruments and related work and reporting in 2008 are: 
- The new Regulation (EC) No  216/2008 which replaces Regul ation (EC) No 1592/2002 on 
common rules in the field of civil aviation and establishing a European Aviation Safety 
Agency (EASA). 
                                                
 
123 Case 22/70, Commission v Council - European Agreement on Road Transport 
EN 120   EN - Regulation (EC) No 2111/2005 on the establishment of a Community list ('blacklist') of air 
carriers subject to an operating ban within the Community and on informing air transport 
passengers of the identity of the operating air carrier 
- Directive 2004/36/EC on the safe ty of third-country aircraft  using Community airports 
(SAFA) as amended by the new Directive 2008/49/EC. 
- The new Regulation (EC) 351/2008 implementi ng Directive 2004/36/EC (SAFA) as regards 
the prioritisation of ramp inspections on aircraft using Community airports. 
- The new Regulations (EC) No 8/2008 a nd 859/2008 amending Council Regulation (EEC) 
No 3922/91 as regards common technical re quirements and administrative procedures 
applicable to commercial trans portation by aeroplane (EU OPS). 
Infrastructures and airports 
This sector implements, or supervises the implementation of the "action plan for airport 
capacity, efficiency and safety" that the Commis sion adopted in 2007 to increase the output of 
the existing infrastructures and to optimize the planning of new infrastructures, whilst raising safety standards at highest levels and enhancing the environmental compatibility of airports. Within this context, the sector notably set up and supervises the Community Observatory on airport capacity. 
The sector is involves the implementation of the following legal regulatory instruments: 
- Council Regulation (EEC) N° 95/93 of 18 Ja nuary 1993 on common rules for the allocation 
of slot at Community airports; 
- Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at 
Community airports; 
- The newly adopted Directive 2009/12/EC of the European Parl iament and of the Council of 
11 March 2009 on airport charges; 
- Some of the requirements of Regulation (EEC) No 2408/92 of 23 July 1992 on access for 
Community air carriers to intra-Community ai r routes (now recast in Regulation (EC) No 
1008/2008). 
Aviation security 
Regulation (EC) No 2320/2002 of the Europ ean Parliament and of the Council of 16 
December 2002 establishes common rules in the field of civil avia tion security. This 
Regulation is complemented by detailed impl ementing rules taking the form of several 
Commission Regulations and a Co mmission Decision. In particular , the rules require Member 
States to establish and implement a national ci vil aviation security programme complemented 
by a quality control programme in order to ensu re the application of the common standards. 
Member States also have to designate a single appropriate authority responsible for the 
coordination and the monitoring of the implemen tation of its national civil aviation security 
programme and ensure the availability of sufficient resources to monitor compliance. 
Regulation (EC) No 2320/2002 also  requires from the Commission to carry out inspections of 
national administrations and a suitable samp le of airports in all Member States. 
EN 121   EN For more details on the legislation applicable, please  see annex I. 
6.13.1.2.  Report on the work done in 2008  
Internal market, air transport agreement s and multilateral relations sector  
- Internal market 
Regulation (EC) No 1008/2008 of 24 September 2008 on common rules for the operation of 
air services in the Community (recast) entered into force on 1s t November 2008. It allows the 
adoption by Member States of Public Serv ice Obligation (PSO) for reason of economic 
development and territorial co ntinuity though air services. 
According to the Regulation Member States mu st respect several obligations and Commission 
has the power to carry on investigations  in case of unjustif ied access restriction. 
In 2008, several meetings were held with Memb er States and stake holders (airports) to 
explain the functioning of the new Regulat ion, which simplifies the procedures. The 
Commission produced guidelines to improve th e implementation of the Regulation and to 
organise partnership with Member s States in order to avoid infringement cases in this area. 
Practically, a functional mail box has been create d for the transmission of Member States 
requests. Through this channe l, Commission has received PSO projects for checking the 
conformity, in particular of the socio-econom ic context, before publication. An exhaustive 
inventory of all public service obligations in  force was set up, published on Europa and is 
being updated on a monthly basis.  
In 2008, the Commission carried out audits of Computer Re servation Systems on the ground 
of complaints from CRS and Airlines, which were unfounded (Article 10 of Regulation (EC) 
No 2299/89).  
The proposal for a Regulation on a Code of C onduct for computerised reservation systems 
(CRS) suggests the removal of impracticable provisions that were subject to uncertainty. 
During the legislative process, the Commission's services held numerous meetings with CRS 
and Travel agents to explain and convince them on the benefit of modernisation and 
simplification of the existing Regulation such as  price transparency and protection of personal 
data. The new Regulation will enter into force in March 2009.  
- Air transport agreements 
In order to improve the good application of Community law, the Commission has produced a 
legislative guideline containing all legislation and updated every two year s. This legislative 
guideline explains to the Member States the le gislation in force and gives examples on how to 
implement it. This document is used in different  ways: it is a tool to  explain Community law 
to third countries when new agreements to ensu re the conformity of th ird country regulations 
are being negotiated particularly for neighbour ing countries of the Mediterranean Sea and 
Balkans which have started to implemen t common air transport policy provision.  
In 2008, the Commission services  provided new Member States  and neighbouring countries 
assistance with technical expe rts. For this specific acti on, Commission services update 
regularly the expert's data base. 
EN 122   EN The Commission services are working on an European Civil Aviation Code with a double 
objective: to give a detailed ove rview to third countries of th e architecture of Community Air 
policy during the negotiations and to help new Member States and neighbouring countries in 
the institutional building issues. 
For the bilateral agreements, the committee established by Regulation (EC) No 847/2004 met 
twice in 2008. This committee is assessing the acceptance by third countries of Community 
clauses on designation, safety, environment, owne rship and control and other technical issues. 
In 2008, the Commission managed to put into conf ormity 222 additional bilateral agreements 
through committee decisions and two infringement cases could be closed. 
Single sky and modernisation of air traffic control 
On 25 June 2008, the Commission adopted a propos al to amend the basic regulations and a 
proposal to extend the competence of EASA (Eur opean Aviation Safety Agency) to air traffic 
management. 
The adoption by the Council and th e European Parliament of th ese proposals will contribute 
to the practical implementation of the Single Eu ropean Sky for instance through the definition 
of mandatory deadlines for the implementation of  key elements like th e functional airspace 
blocks (FABs) or the competence of EASA on the certification of ai r traffic management 
systems. 
Infringement procedures were initiated agains t 20 Member States that did not communicate 
the transposing measures for Directive 2006/23/EC (Community air controller lic ence) within 
the deadline (17th May 2008), eight of which could be  closed by the end of the year. 
Air safety and environment 
- European Aviation Safety Agency (EASA) 
The competence of EASA has been widened and the amended basic Regulation (EC) No 
216/2008 entered into force in Apr il 2008. It applies to the safety certification of  third country 
airlines operating to or from Europe, to pilots' licences and to all safety aspects of the 
operation of airlines and aircraft. EASA has also  been charged with th e task of managing the 
SAFA (Safety of Foreign Aircraft) Progr amme and the develo pment of enhanced 
implementing rules.  
The Commission presented a new proposal in June  2008 to further extend the Agency's tasks 
to aerodromes and Air Traffic Management safet y. This is an essential pillar of the Single 
European Sky legislation package and will provide for completion of the safety chain for the EASA system. The Council signa lled a partial general appro ach in December 2008, allowing 
for its final adoption in first reading in the course of 2009.  
Furthermore, the Commission adopted the ne cessary rules (Regul ation EC No 287/2008) 
providing for the necessary extension of validity of the certificates of airworthiness until 28 September 2009 of certain types of aircraft, for which EASA had r eceived appropriate 
applications for certification (according to the requirements of Regulation N° 1702/2003 as 
modified by Regulation EC No 375/2007). Al so, the Commission adopted individual 
decisions (concerning Poland, Hungary and Latvia) affecting the certification of airworthiness 
of aircraft of these types to allow them to be integrated into the EC certification system in 
derogation of specific requirement s of Regulation (EC) No 375/2007.  
EN 123   EN In line with the objective of better regulation, the Commission adopted regulations to adapt 
the existing airworthiness rules to non-commerci al air transport without compromising safety: 
Regulation (EC) No 1056/2008 amending Regulation (EC) No 2042/2003 on the continuing 
airworthiness of aircraft and aeronautical products, parts and appliances, and on the approval 
of organisations and personnel involved in  these tasks; Regulation (EC) No 1057/2008 
amending the Appendix II of Annex to Re gulation (EC) No 1702/2003 concerning the 
Airworthiness Review Certif icate (EASA Form 15a).  
- The EC list of banned air carriers The measures to prohibit or to restrict the operation of unsafe airl ines in Europe have 
continued to be applied with th e required level of attention. 
Three updates (Regulations EC No 331/2008, 7 15/2008 and 1131/2008) of the list of banned 
air carriers have been implemented in 2008 wi th significant decisions affecting additional 
carriers but also releasing others from the list si nce they have successfully restructured their 
safety oversight systems and procedures.   
- Safety Assessment of Foreign Aircraft (SAFA)  In order to enhance the efficacy of the EC SAFA programme, the Commission has completed 
the procedures for adoption of two measur es, notably a Commissi on regulation on the 
prioritisation of ramp inspections on certain aircraft and a Commission directive harmonising 
further the methods and the requirements for conducting and reporting such inspections. Both 
instruments were formally adopted in 2008. 
- EU OPS The harmonised rules on air operations
 (OPS) have been further upgraded twice, by 
Regulations (EC) No 8/2008 and 859/2008, and a close monitoring of the way both the 
industry and the Member States are complying with the new rules app licable from 16 July 
2008 has been performed. In particular, 40 notifi cations of temporary exemptions, 23 requests 
for derogations (2 positive Commission decisi ons taken in 2008) and 15 notifications of 
additional national provisions ha ve been received. The Commissi on has also analysed several 
complaints or peaces of information linked to potential infringements to the new rules and established appropriate contacts with the compet ent authorities to clar ify the situations. Two 
meetings with the competent authorities have  served to clarify the meaning of some 
provisions and disseminate best  practices on the topic.  
- Occurrence Reporting The ability of all national safety authorities a nd of EASA to constantly improve safety rules 
and to take stock of the negative experience of  accidents and incidents has been enhanced by 
two Commission Regulations (EC No 1330/2007 a nd 1321/2007) adopted in the autumn of 
2007. In particular, these establis h the detailed rules to be co mplied with by Member States 
and all industry stakehol ders for the dissemination of incident s information and also to collect 
it into a central European repos itory of information. The principle of protection of the source 
of information has also been strengthened through a specific positi on in Regulation 216/2008. 
- Sustainable Development: 
EN 124   EN The main efforts have been invested to ensure th at the specificities of aviation have been fully 
taken into account in the dire ctive including avia tion in the European emissions trading 
scheme (EU ETS) adopted in November 2008, as well  as in the general re view of the EU ETS 
completed in December 2008 to ensure that avia tion provides a fair contribution to the fight 
against climate change. In this context, the prep aration of the implementing rules applicable to 
aviation was also launched in October 2008.  
In parallel, an intense dialogue  with third countries was deve loped – bilatera lly and within 
ICAO - aimed at convincing the re st of the world that the Eu ropean initiatives are well-
founded and that a global framework to address aviation emissions is needed. The outcome of 
these important activities should be seen in 2009 when  the aviation ETS enters into force and 
the ICAO/GIACC and Copenhagen ne gotiations should be completed. 
Extensive preparatory work, including a prelim inary study and impact assessment, has also 
been carried out on the options for addressing the climate change impacts of NOx emissions 
from aviation. 
On 15 February 2008 the Commission adopted a Report on the implementation of Directive 
2002/30/EC on noise-related operati ng restrictions at airports and, on this basis, has been 
examining whether amendments to the Directive would be justified. 
Infrastructures and airports 
- As regards the Action Plan for airport cap acity, efficiency and safety: The Community 
Observatory on airport capacity was inaugurat ed on 4 November 2008. It will advise the 
Commission on the implementation of the action plan. 
Measures aiming at enhancing the consistency between airport slots a nd flight plans have 
been enshrined in the draft Air Traffic Flow  Management Regulation, to be adopted in 2009. 
Preliminary work started on the cartography of  the European airport network and on the 
integrated air/rail ticketing. 
- As regards the implementation of Community law: Efforts to ensure the proper 
implementation of Directive 96/67/EC were intensified, and the situation at several airports 
was assessed in depth. As a result, one reasone d opinion and 2 letters of  formal notice were 
prepared. At the same time, a study on the impl ementation of the Direct ive was launched and 
completed. It focuses notably on the situation in  the Newest Member Stat es. In spite of these 
efforts, new complaints were made to th e Commission, which concern 3 Member Sates. 
Concerning the regulation on airport slots, the sector assessed the situation at several airports. 
Besides, 3 new complaints were made to the Commission in this respect, while 3 cases were closed. Moreover, the Commission adopted in  April 2008 a Communicati on to clarify some 
provisions of the regulation and make its implementation easier. 
Concerning the harmonization of pa ssenger's departure taxes, the sector dealt with cases in 2 
Member States, and sent 1 letter of formal notice to one of them. Both cases have in the meantime been closed. 
The sector also dealt with discri mination in night bans at one ai rport. At the end of the year, 
the position of the competent authorities on the issues raised by the Commission in relation with the night curfew was still pending. 
- As regards the enhancement of economic regul ation: Discussions continued on the Proposal 
for a Directive on Airport Charges, to establ ish a common framework regulating the essential 
EN 125   EN features of airport charges and the way they are set; the Directive wa s adopted by the Council 
and Parliament on 11th March 2009. 
Aviation security 
During the year 2008, the Commission continued to fulfil its monitoring obligations and 
conducted inspections (including follow-up inspec tions) of 9 national administrations and 18 
airports.  
Five infringement procedures were initiated fo llowing inspections of national administrations. 
Most cases relate to an insufficient frequenc y and scope of national quality control activities 
resulting from a lack of res ources to monitor compliance nati onally. Two infringement cases 
were closed following full rectification of the identified shortcomings. The remaining infringement cases are being cl osely followed and informal cont acts with the Member States 
have taken place in order to assist them in  a swift rectificati on of deficiencies.  
In order to encourage a reduction in the number and severity of defici encies identified during 
Commission inspections the following measures have been taken in 2008: 
- Consistent implementation of a peer-review system, namely the active participation of 
national auditors from all Member States in Commission inspections. In addition, the 
Commission made available to all Member States  an updated and more detailed version of its 
harmonised inspection methodology in order to assist them in preparing for Commission 
inspections on their territories. 
- The Commission regularly informed the Me mber States of non-compliances found during 
inspections in the Regulatory Committee on av iation security, which met 8 times during 2008. 
These updates on non-compliances identified duri ng inspections help Member States to 
identify critical areas where de ficiencies occur repeatedly.  
- Regulation (EC) No 300/2008 of the European  Parliament and of the Council of 11 March 
2008 was adopted. This new Framework Regulation for aviation security, ultimately replacing 
Regulation 2320/2002, allows the Commission to  review the detailed rules for the 
implementation of the common aviation security st andards. This revision  will improve clarity 
and consistency, thus paving the way for an  even higher compliance level. Work on 
developing these new implementing rules is well underway and will be finalised by April 
2010. 
6.13.2.  Evaluation of the current position 
6.13.2.1.  Internal market, air transport agreements and multilateral relations sector  
Situation in this field is acceptable, evolving according to the priorities and performing very 
well. 
- Internal market  
Since the opening of the market in 1992 which wa s a major achievement of the Air transport 
policy, some progress has been made to impr ove liberalisation of the sector. The rules 
governing the liberalisation of services and tariffs  have been simplified and reinforced in 2008 
through the adoption of Regulation (EC) No 1008/2008 (recast) that ente red into force on 1
st 
November 2008. 
EN 126   EN - Air service agreements  
Much has been achieved since the "open skies" judgments. On a total of 1400 illegal bilateral 
agreements 786 are now in conformity with Community law (222 for 2008). A bilateral Air 
Transport Agreement between the European Community and its Member States, on the one hand, and the United States of America,  on the other hand, was signed in 2007, and 
negotiations have started with  Canada. The neighbouring policy is now concrete: agreements 
have been signed with Switzerland, Western Balk ans and Morocco, which are participating at 
different levels to the common air policy. 
Certain bilateral agreements such as those c oncluded by Austria with China and with Syria 
and by Finland with Russia present however par ticular difficulties, despite the efforts made 
both by Member Stat es and Commission. 
6.13.2.2.  Single sky and modernisati on of air traffic control 
Considering the limited number of legal inst ruments, the monitoring of the practical 
implementation seems manageable. 
The transposition of Directive 2006/23 has not been achieved yet (or not fully) in several 
Member States. 
6.13.2.3.  Air Safety and Environment  
The appraisal of the present situation of air sa fety and environment is acceptable and evolving 
according to the established priorities. 
6.13.2.4.  Infrastructures and airports 
The implementation of the Directive on gr oundhandling remains of some concern. The 
situation appears unsatisfactory in this respect, notably in some of the new Member States. It 
is therefore essential to continue a close surveillance of Member State's transposition 
instruments and the way they are applied. 
6.13.2.5.  Aviation security 
Since the introduction of Community rules in 2002 and of Commission inspections in 2004, 
results of aviation security inspections have steadily impr oved. The compliance with main 
provisions during aviation secur ity inspections of airports ro se from 62% in 2006 and 69% in 
2007 to 78% in 2008. However, inspections of national administrations also showed that several Member States do still not make available sufficient re sources to fulfil their national 
quality control obligations. 
The fact that the Commission took a strict and coherent approach to the rectification of 
deficiencies identified during Commission insp ections has also contributed to the improved 
inspection results. It is expected that additional infringement cases will be necessary to further 
improve compliance levels in the European Union, in  particular as regards the availability of a 
sufficient number of national auditors to m onitor the correct implementation of aviation 
security measures at European airports. Howe ver, the continued effo rt in inspections and 
advice is still likely to result in a continued positive evolution. The entry into force of the 
revised aviation security rules in April 2010 will then furthe r improve the overall compliance 
level within the European Union. 
EN 127   EN 6.13.3.  Evaluation results 
6.13.3.1.  Internal market, air transport agreements and multilateral relations sector  
 Priorities 
The priorities remain the same:  
- To remove the illegal provisions of existin g bilateral air transport agreements between 
Member State and third countries, to negotiate a final agreement with US in order to make the 
Community ratification po ssible and close the infr ingements procedures. 
- To maintain partnership with Member States, stakeholders and citizen representatives for a 
harmonised implementation of internal market regulations. 
- To update the new CIRCA Interest Group that was set up to comply with the requirements 
of Regulation (EC) No 1008/2008 concerning the notification of  operating licences. 
 Planned action 
The key actions programme will be oriented toward priorities: 
- Meetings with third countries  to remove the illegal provi sions of existi ng bilateral 
agreements. 
- The organisation of training for Member States, third countries, stakeholders and EC official 
on the Community acquis , the Air transport policy, the practi cal challenges and objectives of 
the stakeholders in the area of Computer reservation system.  
- Studies to assess different  third country markets. 
- To develop activities related to new legislation in the area of Computer Reservation Systems 
such as guidelines, training, expert committee meetings. 
6.13.3.2.  Single sky and modernisati on of air traffic control 
As in the past, the practical implementation of  existing legislation by Member States and by 
relevant stakeholders will be monitored in  the framework of the Single Sky Committee 
(Article 5 of Regulation (EC) No 549/2004) and the Industry Consultation Body (Article 6 of 
Regulation (EC) No 549/2004). 
These instruments are complemented by the use of existing arrangements under the 
Eurocontrol Convention. For instance the CRCO (Central Route Charging Organisation) is 
used for the reporting obligations under th e charging Regulation (EC) No 1794/2006 and the 
LCIP (Local Concergence Implementation Plan ) is used for the reporting obligations under 
Article 12 of the framework Regulation (EC)  No 549/2004 and under Artic le 8 of Regulation 
(EC) No 2150/2005 on the flexible use of airspace. 
6.13.3.3.  Air Safety and Environment  
 Priorities 
Priorities concern the most significan t developments in such areas as : 
EN 128   EN - Accident investigation and incident reporting 
- Extension of EASA task s, fees and charges, supervision of EASA, fines 
- List of banned airlines - Aviation environmental issues  - International cooperation - Monitoring of compliance 
 Planned action 
The key actions programme will be oriented towards the above listed priorities: 
- Accident investigation and incident reporting In 2009 the Commission adopt a le gislative proposal to enhan ce accident investigation and 
incident reporting. The co-decision process for the adoption of this measure should continue 
in 2010.  
- Extension of EASA task s, fees and charges, supervision of EASA, fines 
A high number of proposals prepared by EASA fo llowing the entry into force of the "first 
extension" amended Regulation (216/2008) in April 2008 will be processed from 2010 – –and 
will result in some 5 to 10 Commission regulations being adopted  between 2010 and 2012. 
On top of these implementing rules specifically linked to the first extension of tasks, the 
continuous update of the technical Community le gislation (mainly initial airworthiness and 
maintenance) following Opinions by EASA w ill continue in 2010 and it will be carried 
through comitology procedure. 
As far as the "second extension" of tasks is concerned, an adoption of the Commission's 
proposal in first reading is e xpected in the course of 2009.  
A thorough revision of the EASA fees and ch arges Regulation is also foreseen. This 
amendment is necessary to introduce the new fees and charges to be paid by the Industry for 
the new certification activities the Agency will start to execute following the "first extension" of tasks.  
In 2010 the Commission intends to adopt a regula tion to introduce fines and periodic penalty 
payments to be imposed on persons or undert akings to which the Agency has issued a 
certificate. The mechanism envisaged is such that the Commission will impose the fine following a request from the Agency.  
Finally, the usual activity as "parent Commissi on service" of EASA will continue, implying 
adoption of the Commission's Opinion on the Ag ency's Work programme, monitoring of the 
Agency's drafting and implementation of the budget and staff policy plan, follow up to various audits (including the Court of Auditors recommendations), etc. 
- List of banned airlines 
EN 129   EN Recent analysis of ICAO and SAFA reports shows a worrying negative trend in terms of third 
Countries' safety performance. As a conseque nce, the effort in auditing third countries' 
airlines and administrations will have to be strengthened.  
The update of the Community list of banned ai rlines every four months will continue. 
A report on the implementation of the Regulation following the first three years of 
implementation will be proposed by the Commission in 2009. 
- Aviation environmental issues  Proposals are planned for measures dealing with  aviation noise  emissions from airplanes 
(2009-2010). 
The involvement at international level on av iation emissions reductions measures, in 
particular emissions trading, will require inte nse activities in ICAO, in the United Nations 
Framework Convention on climate change (UNF CCC) after COP15, but al so during bilateral 
negotiations with third countries. This is indispensable to ensure a smooth implementation of 
the EC Directive including aviation in the EU ETS.  
- International cooperation The management of a number of tailored techni cal cooperation projects with third countries, 
mainly those affected by the list of banned airl ines, aimed at enhancin g their aviation safety 
supervisory capability and their compliance with international air safety standards, will be 
continued. 
The work generated by the negotiation or im plementation of bilateral EU/third countries 
aviation safety agreements should increase  significantly, implyi ng the creation and 
management of some technical Committees (at least four just for the United States of 
America) to properly follow up the implementation of the agreements but also to prepare new 
annexes to cover the new tasks entrusted to  EASA following the first modification to 
Regulation 216/2008. Such annexes will have to be negotiated in the Bilateral Oversight 
Board which the Commission has to co-chair at the level of the Head of Unit with large 
technical support of the Unit and EASA. For Brazil,  a similar path can be envisaged, the entry 
into force of the bilateral agreement bei ng expected however at the end of 2009 only.  
- Monitoring of compliance Monitoring compliance with the existing EU le gislation is an ongoing task. This implies – 
inter alia – the analysis and appropriate follow-up of the standardisation inspection reports issued by EASA, as well as ensuring a correct functioning of the SAFA Directive. The Agency inspects at present each Member Stat e every two years; as a consequence, the 
Commission will analyse yearly some 13/14 sta ndardisation reports and follow them up as 
appropriate - mainly initiating sanction (withdraw al of certificates or of mutual recognition, 
for example) or  infringement procedures where necessary.  
As far as the 'SAFA Directive' is concerned, its provisions shall be repealed and replaced by 
implementing rules enacted under Regulatio n 216/2008/EC. In this sense, a continuous 
refinement of the procedural annexes, of the prioritisation of inspections and of the minimum 
training of Member States' inspectors is en visaged together with  the introduction of a 
minimum quota of ramp inspections to be performed annually by Member States. This 
EN 130   EN process encompasses a constant  dialogue and consultation with  the National Administrations 
and other relevant stakeholders throu gh workshops and technical meetings.  
6.13.3.4.  Infrastructures and airports 
In 2009 the sector will continue focussing on the proper implementation of the existing law as 
regards groundhandling, slots and airport ch arges. It will also concentrate on the 
implementation of the action plan on airport ca pacity, and notably on th e supervision of the 
works of the Observatory on airport capacity. 
6.13.3.5.  Aviation Security 
 Priorities 
The primary focus for the Commission in the field of aviation secu rity remain unchanged, 
namely to further develop harmonised rules in av iation security that ensure an adequate level 
of protection whilst limiting the negative impact on facilitation and to ensure the application 
by all Member States of the common standard s contained in Regulat ion (EC) No 2320/2002 
of the European Parliament and of the Council of 16 December 2002.  
 Planned action 
The Commission will continue to apply a st rict compliance monitoring and enforcement 
policy to ensure an adequate protection of its citizens. The Commission therefore intends to 
continue its inspections at a similar frequency as compared to 2008. Particular emphasis will 
be given to ensuring that Member  States have an adequate numb er of resources to fulfil their 
obligations.  
In order to ensure the timely entry into force of the new implementing rules in the field of 
civil aviation security, the Commission will inte nsify work in this fi eld and plans several 
working group meetings involving stakeholde rs and Member States. In addition, the 
Commission plans to develop deta iled guidance material to faci litate the smooth entry into 
force of the revised common standards. 
6.13.4.  Summary by sector 
6.13.4.1.  Internal market, air transport agreements and multilateral relations 
- Internal market  
Concerning common rules for the operation of air services, the new Regulation (Nº 
1008/2008) contributes helps to the restructurin g of the sector and maintains competitive 
conditions both on international routes and European  domestic routes. It also clarifies several 
aspects in the areas of aircraft leasing, public service obligations and traffic distribution rules 
at airports, ensuring that these rules are a pplied with maximum transparency and without 
discrimination.  
The Regulation aims in particular at si mplifying publicity obliga tions, extending the 
maximum period for the exclusive concessions which will be 4 years (5 years for the most remote regions). It introduces an emergency pr ocedure to cope with the sudden interruption of 
the services of the operator serving a route covered by public service obligations (OSP). It 
gives the Commission the possibil ity of requesting from the Member State more information 
and explanations on the OSP socio-economic  context that they intend to create. 
EN 131   EN The Commission's proposal to simplify and m odernise the Code of Conduct relating to 
computer reservation systems (CRS) will partia lly liberalise the market and will allow CRS 
providers and the travel agents who are subscr ibed to widen their offer, thereby improving 
competition in the air tickets distribution market. Competition is further strengthened by new safeguard measures designed to protect consumers and to prevent competitive abuses.  
- Air services agreements  
The objective to bring existing bilateral agreemen ts into line with Community law, following 
the “open sky” case law, is vitally important  not only for the European Community and its 
Member States but also for the third countries concerned and fo r the aviation sector, airlines 
and the users. 
Since 2002, much effort has been made in or der to remove the ille galities identified in 
bilateral agreements between twenty Member States and th e United States. In 2008, the 
Commission organised several joint committee mee tings for the provisional application of the 
Air Transport Agreement
 between the European Community  and its Member States, on the 
one hand, and the United States of America, on the other hand, which was signed in 2007 and 
which needs to be ratified by all Member Stat es before the ratifi cation by the European 
Community. This legal constraint  does not permit closure of Member States' infringements 
that have already ra tified the agreement. 
In the framework of Regulation (EC) No 847/ 2004 and its committee, the Commission assists 
member States tobring other exis ting bilateral agreements with third countries into conformity 
with EU requirements.  
6.13.4.2.  Air Safety and Environment 
The impact of added safety resulting from the Commission's initiatives has been assessed so 
far on the basis of the number of unsafe compan ies which have been prevented to operate to 
or from Europe and by the number of tourist agents (about 40.000) in Europe which have to 
inform travellers of the list of banned ai rlines companies operating outside Europe. 
An additional criterion remains the increased level of safety oversight that foreign European 
Civil Aviation Authorities carry out for fear of  seeing their operators banned from Europe.  
Furthermore, the role of EASA is to control compliance by Member States and to assist them 
to enhance their safety level to the legally re quired level. The standardisation activities of 
EASA have continued to produce significant resu lts as an ever increasing number of Member 
States is being inspected on a y early basis. In 2008, EASA inspect ed 21 Member States in the 
area of initial airworthiness and 4 visits to third countries (i ncluding Switzerland); 26 Member 
States and 3 non EU JAA States (including Serbia  and Norway) as well as 4 inspections in the 
United States of America in the area of con tinuing airworthiness. At  the request of the 
Commission, EASA has also carried  out 4 supplementary inspections  of Member States (2 ad-
hoc inspections and 2 follow-up inspections ). Furthermore, the Agency increased 
considerably the number of visits to Member States in the area of operations, flight crew 
licensing and synthetic training devices (simulators): 10 Member  States and 5 JAA States 
(including Switzerland) in the area of operations; 8 Me mber States and 3 JAA States 
(including Switzerland) in the area of flight crew  licensing and 6 Member States in the area of 
synthetic training devices (simulators). This as pect, enforcement of compliance, is revealing 
itself more and more the key to successful  impact of EU aviation safety rules. 
EN 132   EN 6.13.4.3.  Infrastructures and airports 
In 2009, the focus of attention will remain unchanged, namely to ensure the proper 
implementation of the economic re gulatory framework, and to gua rd against any possible lack 
of airport capacity by im plementing the action plan. 
6.13.4.4.  Air Security 
The priorities for the Commission in the field of  aviation security remain unchanged, namely 
to further develop harmonised rules in aviation security that ensure an adequate level of 
protection and to ensure the application by all Member States of the common standards 
contained in Regulation (EC) No 2320/2002 of th e European Parliament and of the Council of 
16 December 2002.  
The planned key actions are th e continuation of the well esta blished inspection regime at 
current frequencies, the strict enforcement of Community rules following the identification of 
deficiencies and the development of revised implementing rules for aviation security which 
will ensure more consistency, clarity and harmonisation while safeguarding the level of protection for European citizens.  
Whilst the inspection and enforcement activities are put in place on a continuous basis, the 
development of the new implementing rules will  take place during the course of 2009 and be 
finalised by April 2010 at th e latest. However, further re views and adjustments following 
changes in the threat situation or technologica l developments are also possible thereafter. 
6.14. TRANSPORT - Maritime Safety 
6.14.1.  Current position 
6.14.1.1.  General introduction 
The maritime safety EU acquis  aims at enhancing the safety of ships in European waters, 
protecting the marine environm ent and ensuring appropriate li ving and working conditions on 
board. The main relevant pieces of  legislation in this area are: 
- Council Directive 94/57/EC of 22 November 1994 on common rules and standards for ship 
inspection and survey organisations and for the relevant activities of maritime administrations 
(OJ L 319 of 12.12.1994, p. 20). This directive addre sses the responsibility of Member States 
as flag States by establishing measures  to be followed by th e Member States and 
organisations concerned with the inspection, su rvey and certification of ships for compliance 
with the international conventions on safety  at sea and prevention of marine pollution; 
- Council Directive 95/21/EC of 19 June 1995 on port State c ontrol of shipping (OJ L 157 of 
7.7.1995, p.1). This directive sets out rules applicable to Member St ates in their capacity of 
port States. It provides for increased complian ce with international and relevant Community 
legislation on maritime safety, protection of the marine environment and living and working 
conditions on board ships of all flags and for th e establishment of comm on criteria for control 
of ships by the port State and harmonised procedures on inspection and detention; 
- Directive 2002/59/EC of the European Par liament and of the Council of 27 June 2002 
establishing a Community vesse l traffic monitoring and information system (OJ L 208 of 
5.8.2002, p. 10). The system established in accordance with this directive aims at improving 
the response of the author ities to incidents, acci dents and potentially dangerous situations at 
EN 133   EN sea, including search and rescue operations, a nd at better preventing and detecting pollution 
by ships. 
Other relevant legislation in cludes directives on marine e quipment (Directive 96/98/EC), 
harmonised safety rules and standards for passenger ships (Directive 98/18/EC), fishing 
vessels (Directive 97/70/EC) and the safe load ing and unloading of bulk carriers (Directive 
2001/96/EC), registration of persons on boar d passenger ships (D irective 98/41/EC), 
mandatory surveys for the safe operation of regu lar ro-ro ferry and high speed passenger craft 
services (Directive 99 /35/EC), seafarers hours of work (Directive 1999/95/ EC), stability 
requirements for ro-ro passenger ships (Dir ective 2003/25/EC) and Regulations on the 
accelerated phasing-in of double hull or equivalent  design oil tankers (Regulation (EC) n° 
417/2002), the prohibition of organotin compo unds on ships (Regulat ion (EC) n° 782/2003) 
and on the transfer of cargo and passenger ship s between registers within the Community 
(Regulation (EC) n° 789/2004). Finally, envi ronment-related directives on port reception 
facilities for ship-generated waste (Direct ive 2000/59/EC) and on sh ip-source pollution and 
on the introduction of penalties for infringeme nts (Directive 2005/35/ EC) should also be 
listed. 
6.14.1.2.  Report of the work done in 2008 
The Committee on Safe Seas (COSS) set up under Regulation (EC)  no. 2099/2002 met in 
November. The meeting provided the opportunity for Commission services to discuss with 
representatives of Member  States issues such as the update of Community acquis  on 
passenger ships in order to reflect IMO instru ments, the stability regulations for ro-ro 
passenger ships, the recognition a nd the performance criteria of classification societies as well 
as a possible amendment to Regulation (EC) n° 417/2002 on double hull oil tankers. 
Regular meetings on maritime policy took place in  2008 between the Director responsible for 
maritime safety and policy and his counterpart s in the Member States. These meetings 
provided also an opportunity to foster clar ification and better implementation of the acquis .  
Preparation of the report assessing the implementation of Directive 2000/59/EC on port 
reception facilities for ship-generated waste cont inued in 2008 with the aim of submitting it to 
the European Parliament in the 1st semester 2009. 
The European Maritime Safety Agency continued its broad program of in spection visits in the 
Member States. This program was initiated in 20 04 at the request and in  co-operation of the 
Commission and it currently covers the following areas: classification so cieties, training of 
seafarers, port State control and port recep tion facilities. The methodology for extending the 
program to vessel traffic monitoring and in formation systems was established in 2008 
allowing for the actual launching of the exerci se in March 2009. The reports produced by the 
EMSA teams serve as basis for further Commis sion contact with the Member States either 
through requests for clarification or the launchi ng of infringement procedures. In an area 
where there is a reduced number of complaints received from citizens or enterprises, these inspections are of great value to the Commission as they allow it to understand how the EU 
maritime safety acquis  is implemented in the Member States. 
The number of infringement procedures declined  sharply in 2008. This wa s essentially due to 
the corrective measures introduced by Member St ates in order to impr ove the quality of the 
transposition of the 
acquis  and its implementation, following pre-judicial in itiatives by the 
Commission. Still at the end of the year over 40 procedures remained open. They concentrate 
EN 134   EN essentially on port State contro l and port reception facilities i ssues. Noteworthy are also the 
decisions of the Court of Justice in several cas es condemning Member States for their failure 
to establish, adopt and implement plans for ship-generated waste. 
6.14.2.  Evaluation of the current position 
Maritime safety Community law is relatively young. It is however based in international 
conventions and other instruments, for some of  which there is considerable implementation 
experience in the Member States. Current imp lementation situation thus ranges from 
relatively stable, whilst not yet entirely accep table (for instance, fo r Directive 95/21/EC on 
port State control of shipping which is closely re lated to the rules of the Paris MOU to which 
most Member States have been party to for seve ral years) to more difficult as in the case of 
Directive 2000/59/EC on port rece ption facilities, where key provisions such as those on the 
coverage of costs by al l ships, the monitoring of deliveries and the performan ce of inspections 
are still implemented uneve nly throughout the Union. 
The situation tends to become more complex as 2008 saw the fina lisation of a very significant 
package of new Community maritime safety acquis . This package, whose texts are due for 
publication in the first semester 2009, cover a broa d range of issues, some of which consist of 
improvements of current acquis  (port State control, vessel traffic monitoring and information 
system, classification soci eties ), while others ar e essentially new (accid ent investigation, Flag 
State obligations, liability of carriers of pa ssengers by sea, insurance of shipowners). 
Preparation of adequate transposition of the new texts into national law and of their implementation will be necessary. 
6.14.3.  Evaluation results 
6.14.3.1.  Priorities 
There is a clear continuity in the efforts to ensure an appropriate transposition and 
implementation of the maritime safety acquis . In terms of thematic areas, emphasis will be 
put on the traditional areas of the monitori ng of classification societies and of the 
implementation of directives on th e training of seafarers, port State control, vessel traffic 
monitoring and information system and port rece ption facilities. Transposition of Directive 
2005/35/EC (ship-source pollution and penalt ies) will also be closely monitored.  
We shall continue to rely on the systematic  assessment of implementation in the Member 
States based on the inspections by EMSA to be followed by contacts with Member States and, when appropriate direct pre-judicial initiatives.  We shall also devote considerable resources to 
trying to prevent transposition pr oblems, in particular in the context of the new package of 
legislation. 
A pre-emptive approach is also taken in relati on to the alignment to and implementation of the 
acquis  by accession countri es, in particular Croatia, th rough dialogue and assessment of 
administrative capacity (in co-operation with EMSA). 
6.14.3.2.  Planned action 
Contact with national administrations will be en sured through COSS meetings. As far as the 
newest legislation is concerned, a general meeting at Director level with representatives of the 
Member States is scheduled for Fall 2009 with  the objective of discussing and clarifying the 
content of the recent legislative package in pr eparation of transposition by Member States. 
EN 135   EN This meeting will be complemented by dedicated workshops with MS experts on the 
implementation of each of th e new legislative texts.  
Follow-up of EMSA inspection reports will be ensu red leading to clarifi cation actions and/or 
infringement procedures in the key areas mentioned under point 1. 
6.14.4.  Sector summary 
The monitoring and promotion of the implementation of the maritime safety acquis  
concentrates on the traditional key areas (classification societies, training of seafarers, port State control, vessel traffic monitoring and info rmation system and port reception facilities). 
Dialogue with Member States con tinues in different fora (COSS,  meetings with the Directors-
Generals of national administ ration, technical co-operation through EMSA). Clarification 
initiatives by the services and, when appr opriate, infringement procedures are also 
undertaken. Given the imminent publication of a si gnificant new package of maritime safety 
legislation, considerable effort is to be devoted to detailing and explaining the new acquis , 
e.g. by dedicated implementation workshops, with  a view to facilitate its transposition by 
Member States. 
6.15. TRANSPORT - Maritime Security 
6.15.1.  Current position 
6.15.1.1.  General introduction. 
The main objective of the EU legislation on Maritime Security  is to implement measures 
aimed at enhancing ship, port facility and port  security in the face of the threats posed by 
intentional unlawful acts. The EU legislatio n intends to provide a basis for harmonised 
interpretation and implementation of internat ional measures to enhance maritime security 
adopted by the Diplomatic Conference of the In ternational Maritime Or ganization (IMO), in 
2002, with the establishment of th e International Ship and Port Facility Security Code (ISPS 
Code) and the ILO /IMO Code of Practice on Security in Ports. 
The main pieces of Community acquis  in this field are the following: 
- Regulation (EC) No 725/2004 of the European  Parliament and of the Council of 31 March 
2004 on enhancing ship and port facility security: The Regulation takes into account amendments to the 1974 International Convention for the Safety of Life at Sea (the SOLAS 
Convention) and the maritime security measures  imposed by the Regulation are only some of 
the measures necessary in order to achieve an adequate level of security across all of the 
various transport chains linked to maritime tran sport. The Regulation is limited in scope to 
security measures onboard vessels an d the immediate ship/port interface. 
- Directive 2005/65/EC of the European Parl iament and of the Council of 26 October 2005 on 
enhancing port security: The Directive is main ly based on the recommen dations contained in 
the ILO/IMO Code of Practice on  Security in Ports. The Directive completes the mechanism 
provided for under the Regulation by establishing a security system for all port areas, in order 
to ensure a high and comparable level of secu rity for all European ports. The aim of the 
Directive is to improve security  in port areas not covered unde r the Regulation and to ensure 
that the enhancement of port security will support the security measures taken under the Regulation, without creating additional obli gations in areas already governed by the 
Regulation. 
EN 136   EN - Regulation (EC) No 324/2008 of 9 April 2008 laying down revised procedures for 
conducting Commission inspections in the field of maritime security: In 2005, in order to 
monitor the application by Member States of the Regulation and to verify the effectiveness of 
national maritime security measures, proce dures and structures, the Commission adopted 
Regulation (EC) No 884/2005, laying down procedures for conducting Commission 
inspections in the field of maritime secu rity. On 9 April 2008, th e Commission adopted 
Regulation (EC) No 324/2008 la ying down revised procedures for conducting Commission 
inspections in the field of maritime securit y, which also laid down “procedures for the 
monitoring by the Commission of the implementa tion of Directive 2005/ 65/EC jointly with 
the inspections at the level of Member States and port facilities in re spect of ports...”. This 
Regulation, repealing Regulation (EC) No 884/2005, came into force on 1 May 2008. 
6.15.1.2.  Report on the work done in 2008 
During the year 2008 the work done on monitoring the application of Co mmunity law in the 
field of maritime security had considerable developments. 
- The Maritime Security Comm ittee (MARSEC) met 5 times which were as much occasions 
to discuss with the Member States of the issu es involved in the common interpretation of the 
security standards defined at the international level. Furthe rmore, these issues are also 
addressed with the stakeholders from the advisory group (SAGMaS). 
- Follow-up of the infringement procedures laun ched for the absence of  national transposition 
for measures concerning Directive 2005/65/EC w ithin the required deadline: The majority of 
the 22 Member States required to  transpose the provisions of the Directive into national law 
only did so after the deadline for implementation (15 June 2007) had passed. Only six of them 
provided notification of national measures before  this transposition deadline, quickly followed 
by six other Member States. The average delay in transposition was six months. On 1 January 
2008, seven Member States had still not adop ted or transmitted to the Commission their 
national measures transposing the Directive. Finally, on 18 September 2008, the Commission 
decided to take action before the European Court of Justice, in the absence of notification of 
national transposition measures within the re quired deadline, against the last two Member 
States which had not yet met the deadline. The Commission also began procedures for 
monitoring the application of this Directive duri ng the inspections carried out in the field of 
port security. 
- Preparation of the report assessing the impl ementation of the Directive on enhancing port 
security: This report fulfils the Commission's obligation under Article 19 of the Directive to report on its application by 15 December 2008 at the latest, and then subsequently every five 
years, and to provide an overview of the transp osition of the Directive by Member States and 
to identify possible problems found. However, in view of the dela y in transposing the 
Directive and in the practical implementation of  its provisions by several Member States, the 
report focuses on implementation-related matters and short-term results. 
- The inspection team carried  out 120 inspections (22 nati onal administrations, 46 port 
facilities, 36 ships, 6 recognized security  organizations, 2 companies; 8 ports). The 
inspections permitted to check the implementation of the security legislation on the ground by 
the operators concerned, as well as the supervision of it by the Member States. 
EN 137   EN 6.15.2.  Evaluation of the current position 
Considering the implementation of the Directiv e, it should be noted that the delays in 
preparing and adopting national transposition meas ures in a variety of Member States have 
had a knock-on effect, in that th e relevant port auth orities were not able to implement the 
Directive until the national measures ha d been finally approved and adopted. 
Given, on the one hand, the short life so fa r of Regulation (EC) No 324/2008 laying down 
revised procedures for conducting Commission insp ections in the field of port security and, 
on the other, the delay with wh ich several Member States both transposed the Directive and 
implemented its provisions in practical terms,  it would be premature to draw any final 
conclusions and this work will be kept among the priorities for 2009. 
The inspection team reported on several occasions  a lack of control exerted by the Member 
States to check the correct application of Comm unity legislation in the port facilities and ships 
under their competence. This point will also be a priority in 2009. The first inspections 
concerning the monitoring of Directive 2005 /65/EC carried out into 2008 were very 
disappointing because the first eight visited ports did not lay out an assessment, nor a plan for 
security. 
6.15.3.  Evaluation results 
As in the past, priority will be given to the achie vement of an adequate level of security across 
all of the various transport chains linked to maritime transport. 
Concerning Directive 2005/65/EC, once all national texts have been sent to the Commission 
the Commission will conduct a more detailed examination of national transposition measures and subsequent provisions made by Member States  in order to make a global assessment (i.e. 
covering all relevant Member States) of whether the national measures comply with the relevant provisions of the Directive (conformity checks). Infringement procedures will be launched against Member States not having fully  or correctly transposed the Directive. 
Furthermore, the working programme for the performance of maritime security inspections 
carried out by the Commission will systematically  include a section for verifying that the 
procedures for monitoring the application of the Directive have been correctly applied. 
6.15.4.  Sector summary 
While the situation in maritime security sector  is demonstrating the benefits of harmonised 
rules, enhancing ship, port facility and port se curity in the face of the threats posed by 
intentional unlawful acts, there are still a number of areas where some obstacles to efficient maritime security persist. 
The efforts are concentrating in ensuring an efficient implementation of the existing maritime 
security legislation, by comb ining action in two fields: 
- permanent contact with national administrations  through the work of the Maritime Security 
Committee and in the context of prep aration and follow up of inspections; 
- based on the results of the inspections car ried out by the Commi ssion and on the on-going 
conformity checks, an action plan identifying the main areas where there is failure to comply 
EN 138   EN with the Directive and Regulation will be the basis for initiating different actions, including 
infringement proceedings as necessary. 
7. ENVIRONMENT 
7.1. Nature Conservation  
7.1.1.  Current position 
7.1.1.1.  General introduction 
The most important pieces of nature conser vation legislation are the Birds Directive, 
79/409/EEC124 and Habitats Directive, 92/43/EEC125. The former sets out measures for the 
protection, management and control of all species  of naturally occurring European wild birds, 
as well as introducing rules to protect their habitats. The latter protects natural habitats and 
wild flora and fauna throughout the European Union and establishes a European ecological 
network known as “Natura 2000”. 
Nature conservation legislation constitutes a fa irly stable part of the EC environmental acquis . 
Developments in this sector mainly concern the annexes to the Birds and Habitats Directives that have been adapted on a number of occasi ons in response to scientific and technical 
progress and to the successive enlargements of the European Union. The most recent 
adaptation is in response to th e Accession of Bulgaria and Romania to the European Union on 
1 January 2007. The Community is at present ve ry close to the completion of the Natura 2000 
network and regulatory stability is required.  
7.1.1.2.  Report of work done in 2008 
Designation of Special Protection Area s and Special Areas of Conservation 
Further substantial progress was made in 2008 in the establishment of the Natura 2000 
network, consisting of Special Protection Areas  under the Birds Directive and Special Areas 
of Conservation under the Habitats Directiv e. In December 2008, the Commission adopted 
eight Decisions updating existing or establis hing new Biogeographic Lists of Sites of 
Community Importance (SCIs). The additions in clude 769 new sites and a total area of 95,522 
km2. Most of the sites are in the newer Memb er States. Romania and Bulgaria have now 
added areas to the network for the first time, including areas  along the Black Sea that are 
home to numerous varieties of rare and thr eatened plants and animals. Natura 2000 now 
includes around 25,000 sites, covering 17% of the EU’s landmass, making it the largest 
interconnected network of prot ected areas in the world.  
Several Member States have increased the num ber of designated areas following infringement 
procedures launched by the European Commission and it is expected th at several of these 
procedures will be closed in 2009.  
                                                
 
124 Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds OJ L 103, 25.4.1979, 
p. 1-18. 
125 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna 
and flora OJ L 206, 22.7.1992, p. 7–50. 
EN 139   EN Most Member States are now in a proces s of designating their Sites of Community 
Importance as Special Areas of Conservation according to Article 4(4) of the Habitats 
Directive. This exercise includes the establis hment of detailed conser vation objectives for the 
individual sites and the design of appropriate  management instruments according to Article 
6(1) of the directive. Member States have to designate their SCI as SACs not later than six 
years after the inclusion of the sites in a Co mmunity list. As that deadline was 28 December 
2007 for most sites of the Maca ronesian biogeographical regi on, an infringement procedure 
was launched in 2008 against Portug al and Spain for not having desi gnated sites in that region 
as SACs. For most sites of the Alpine biogogr aphical region the dead line for SAC designation 
is 22 December 2009 and for most s ites of the Atlantic and Con tinental regions it will be 7 
December 2010.  
Little progress has however been made as regard s the designation of off-shore marine areas. 
Member States were expected to communicate substantial designations to the Commission by 
end 2008. A series of Marine Biogeographic Seminars will start taking place in 2009 to 
evaluate these proposals. The Commission w ill consider launching new infringement 
procedures against those Member States which have not provided sufficient designations.  
Non-conformity with the Birds and Habitats Directive 
In 2008, the Commission pursued infringements dealing with non-conformity of national 
transposing legislation with the Birds and Habitats Directive. 
In 2008, as regards the Birds Dir ective, a first warning letter  was sent to Slovakia and 
Romania and second warning letters were se nt to Czech Republic, Hungary, Latvia and 
Lithuania. The Commission also decided to refer Italy to the European Court of Justice. 
Austria received a first warni ng concerning the implementation of the judgment in case 
C-507/04. 
As regards the Habitats Directiv e, a first warning letter was se nt to Latvia, Lithuania, Poland, 
Slovakia, Hungary and Romania and a second warn ing letter was sent to Estonia and Czech 
Republic. The Commission also decided to refer France to the European Court of Justice. 
Ireland received a first warning concerning the implementation of the judgment in case 
C-183/05. 
Insufficient designation of  Special Protection Areas 
Under the Birds Directive, Member  States are obliged to designate all of the most suitable 
sites as Special Protection Areas to conserve w ild bird species. The designation must be based 
on objective, verifiable scientific criteria. To  assess whether Member States have complied 
with their obligation, the Commission uses the best available ornithological information. 
Where the necessary scientific information pr ovided by Member States is lacking, national 
inventories of Important Bird Areas (IBA)  compiled by the non-governmental organisation 
Birdlife International, are used. While not le gally binding, the IBA inventory is based on 
internationally-recognised scient ific criteria. The Court of Ju stice has already acknowledged 
its scientific value, and in cases where no equiva lent scientific evidence is available, the IBA 
inventory is a valid basis of reference in asse ssing whether Member States have classified a 
sufficient number and size of terr itories as Special Protection Areas. 
In 2008, the Commission sent a first written warn ing letter to Bulgaria and a second warning 
letter to Romania for failing to designate enough Special Protection Areas on its territory. 
Following the judgments of the European Court of Justice, the Commission pursued the 
EN 140   EN infringement procedure against Spain and Greec e with a first writte n warning under Article 
228 of the EC Treaty (Cases C-235/04 and C-334/04). 
Illegal Bird Hunting 
Hunting is regulated in the European Union by the Birds Directive.  Although the Directive 
contains a general prohibition on the killing of wild  birds, it does allow certain species to be 
hunted provided this does not take place during the breeding season or migration periods. Hunting periods are set at national levels, an d vary according to species and geographical 
location. Exceptionally, Member States may allow the capture or killing of birds covered by 
the Directive outside of the normal hunting s eason for a limited number of reasons, although 
such derogations are only available wh en there is no alternative solution. 
As regards huntable species, the Commission is preparing further management plans on such 
species with an unfavourable conservation stat us. They are not legally binding but give 
guidelines to Members States to fulfil their obligations on species' conservation. 
In 2008, the Commission decided to take Malta to  the Court of Justice for its spring hunting 
practices (case C-76/08). The Cour t ordered, as an interim meas ure, that spring hunting was 
not to be allowed in 2008. 
In the judgment in case C-503/06, Commission/It aly, the Court condemned Italy for allowing 
hunting of starling (Sturnus vulgaris)  under conditions which were contrary to the Birds 
Directive. 
An update of the guidance document on hun ting under Council Directive 79/409/EEC on the 
conservation of wild birds was published. 
Species protection 
The Habitats Directive comprises an important pillar which is related to the protection of 
species. In particular, Articles 12 and 16 are ai med at the establishment and implementation 
of a strict protection regime fo r animal species listed in Annex IV(a) of the Habitats Directive 
within the whole territory of Member Stat es. Focus is mainly on developing guidance 
documents such as the Guidance document on th e strict protection of animal species of 
Community interest under the 'Habitats' Direc tive 92/43/EEC that was finalized in February 
2007. Specific guidance documents have also been developed for the protection and management of large carnivores. An initiative for preparing species protection plans for a 
number of priority sp ecies has been launched. 
Furthermore, the Commission is preparing furthe r action plans for globally threatened bird 
species. 
In order to reduce the conflicts between Cormorants and fisheries, the Commission will take 
action, namely through the prep aration of guidance on appropria te use of derogations under 
Article 9 of the Birds Directive. 
In 2008, the Commission took Spain to  the Court of justice for fa ilure to provide for strict 
protection of the Iberian Lynx ( Lynx pardinus)  (Case C-308/08). 
Further judgments of the Court of Justice in 2008 
EN 141   EN In relation to the protection of SPAs to  be designated under the Birds Directive 
(1979/409/EEC), the Court ruled in case C-293/07, Commission/Greece , that Greece had 
failed to put into place a coherent, specific and complete legal protection regime for SPAs. In 
fact, the protection regime laid down in the Gree k legislation did not in clude all SPAs and it 
provided varying protection of the sites in such a way that the objectives for the protection of 
SPAs, laid down in Article 4(1) and (2) of th e Birds Directive and in Article 6(2) of the 
Habitats Directive, were not fulfilled. 
In cases T-322/06, T-323/06, T-345/06, T-366/06, the C ourt of First Instance ruled that a 
Commission decision to include several Spanish sites in the Natura 2000-network does not 
directly affect the businesses lo cated within them. The actions for annulment of the decision 
therefore were considered inadmissible. 
7.1.2.  Evaluation based on the current situation 
Despite the small number of legal instruments in this field, nature  conservation legislation 
accounts for between a fifth and a quarter of environmental infri ngements. The nature sector 
accounts for the highest number of open environm ental cases. The high number of cases in 
the nature sector is due mainly to the extent of the network, which now includes around 25, 
000 sites: there are Natura 2000 sites in the vici nity of nearly every EU citizen. This is 
positive in as much as it brings the EU clos e to its citizens but it also means that the 
Commission receives a lot of complaints about threats to these sites. Although the demand  
from citizens, specialised and active NGOs and the European Parliament is high, the 
complaint and legal enforcement mechanisms for nature conservation in the Member States are often weak or inappropriate.  
In order to rationalise the handling of this high number of cases and ensure the effective 
implementation of the nature directives, the Commission has taken several measures, which can be divided into three categories: 
• Focus on the main implementation priorities : the core obligations of the directives 
were effectively addressed (i.e. corre ct and complete transposition and 
establishment of the Natura2000 networ k), while systemic problems of bad 
implementation were tackled (e.g. hunting derogations). 
• Proactive cooperation with Member States : this includes the drafting of 
interpretative guidance documents for the ma in provisions of the nature directives; 
the development of targeted guidance for economic sectors such as the port sector, 
wind energy, the non-ener gy extractive industry, and inland waterways, which 
have particular challenges in relation to the legislation; training of the competent 
authorities; regular contacts with the national, regiona l and local authorities, 
establishment of the “GreenEnforce Network“ . 
• Improvements in the handling of complaints : specific methods have been 
developed with the purpose of helping the complainants (i.e. ad hoc nature 
supplementary information form, which gu ides the complainan ts as regards the 
information needed to evaluate a compla int) and making more effective use of 
complaints (i.e. grouping of complaints in order to focus on systemic breaches). 
Those measures have had a significant effect, as they resulted in the reduction of the 
implementation deficit. This is also confirme d by the number of open cases, which has been 
EN 142   EN significantly reduced, despite th e accession of 12 new Member  States. At the end of 2003, 
589 open cases were related to th e nature conservation directiv es while, at the end of 2008, 
168 nature cases were open. 
7.1.3.  Evaluation results 
7.1.3.1.  Priorities 
Priorities will be the following:  
• Completing the establishment stage  of the Natura 2000 network. The terrestrial part of the 
Natura 2000 network is either es tablished or close to establis hment in accordance with the 
Habitats and Birds Directives. Habitats and speci es coverage still need s to be extended in 
places, mainly in the EU-12 Member States, and legal action will be pursued against 
Member States when necessary. The process has been launched to finalise the establishment of marine sites. Since the scie ntific knowledge and info rmation available on 
the existence and distribution of marine ha bitat and species remains incomplete, the 
Member States were expected to subm it their proposals by e nd 2008, based on existing 
knowledge, while pursuing further necessary survey s. In order to facilitate the process, a 
guidance document has already been prep ared by the Commission services. First 
Biogeographic Seminars will take place in  2009. A guidance document on introducing 
fisheries measures for marine Natura 2000 si tes in the context of  the Common Fisheries 
Policy has also been prepared. 
• Ensuring a systematically correct a pproach to Natura 2000 site protection.  To enable the 
Natura 2000 network to achieve its goal of conserving key elements of Europe’s 
biodiversity, there needs to be proper sc rutiny and minimisation of, the impacts of 
potentially damaging plans and projects in line with ECJ case-law. Ensuring application of best scientific knowledge, examin ation of alternatives and, wh ere appropriate, provision of 
compensatory habitats are all major challenges. In this regard, the Commission services issued a guidance document on Article 6(4) of the Habitats Directive, a key provision for 
the implementation of the nature directives. In addition, the Commission intends to promote best practice within specific economic sectors, such as European ports, wind 
energy, non-extractive industries a nd inland waterway transport. 
• Ensuring overall positive management of Natura 2000 network.  Apart from vetting 
potentially damaging plans and projects, Me mber States need to set up effective 
management systems for Natura 2000, supporti ng human activities such as conservation-
sensitive farming that are beneficial to c onservation objectives while also meeting socio-
economic needs.  
• Prioritisation of Commission ’s legal enforcement work. In the coming years, the 
Commission will continue to pursue its legal enforcement action to help meet the main 
objectives of the nature conservation legislation.  To this effect, high priority will continue 
to be given to pursuing infringement cases  concerning significant non-conformity of 
national implementing legislation with the Bird s and Habitats Directives, insufficient site 
designations (mainly in the EU-12 Member Stat es and for marine sites) and the lack of 
adequate legal protection and management re gimes for the Natura 2000 sites. Focus will 
also be on addressing breaches concerning big infrastructure projects or interventions involving EU funding that have significant ad verse impacts on Natura 2000 sites. In this 
context, the Commission will take into account considerations such as irreversible 
EN 143   EN ecological damage and, where appropriate, seek  interim measures from  the European Court 
of Justice126. Infringements concerning unsustainab le hunting practices in some Member 
States will also be followed up closely. In order to better handle individual complaints 
pointing to widespread problems of bad im plementation, the established practice of 
launching horizontal infringeme nt cases will continue to be followed. The approach in 
implementing EC legislation in general is  set out in the Commission Communication "A 
Europe of results – Applying Co mmunity law" (COM(2007)502 final)127. The approach to 
be taken in the implementation of EC environm ental law in particular is laid down in the 
Commission Communication on im plementing European Community Environmental Law 
(COM(2008)773 final)128. 
7.1.3.2.  Planned action (2009 and beyond) 
In addition to planned actions described under the previous point, the Commission will 
publish in 2009 a Communication on the conserva tion status of Species and Habitats 
protected under the Habitats Directive followi ng reports submitted by the Member States 
under Article 17 of the Habitats Directive. This assessment toge ther with the final report on 
the implementation of the Biodiversity Action Plan due in 2010 will provide the basis upon which the Commission will consider the need to  review the existing nature legislation.  
7.1.4.  Summary by sector 
As regards the designation of Special Protection Areas and Sites of Community Importance as 
part of the Natura 2000 network, further subs tantial progress was ma de in 2008. In December 
2008, the Commission adopted ei ght decisions updating exis ting or establishing new 
Biogeographic Lists of Sites of Community Im portance (SCIs). The a dditions include 769 
new sites and a total area of 95,522 km2.  
Most Member States are now in a proces s of designating their Sites of Community 
Importance as Special Areas of Conservation (SAC ) according to Article 4(4) of the Habitats 
Directive. Member States have to designate th eir SCI as SACs not later than six years after 
the inclusion of the sites in a Community list. The deadline for designation as SAC most sites 
on the list of the Macaronesian biogeogra phical region was on 28 December 2007. For most 
sites of the Alpine biogogra phical region the deadline for SAC designation is 22 December 
2009 and for most sites of the Atlantic and C ontinental regions it will be 7 December 2010. 
Infringement procedures have been launche d for the non-designation of SACs in the 
Macaronesian region. One of the future main  challenges will be to launch and manage 
corresponding infringements for the sites in the re maining regions in case they have not been 
designated as SACs before  the respective deadlines. 
Species protection continues to constitute a challenge when implementing the Nature 
Directives. The species listed in the Directives sh all be strictly protecte d but they can also be 
hunted provided the conditions in the Directiv es are fulfilled. The proper functioning of the 
                                                
 
126 In the last two years the Commission has three times sought for interim measures in nature protection 
cases. In cases C-503/06, Commission v. Italy  and C-76/08, Commission v. Malta , the Court ordered the 
Member States to halt illegal hunting activities on 19 December 2007 and 24 April 2008 respectively. 
In case C-193/07, Commission v. Poland , the Commission sought interim measures from the ECJ to 
prevent a Polish motorway project causing serious habitat damage: the request was dropped when Poland agreed to halt the relevant works pending an ECJ judgment. 
127 http://eur-lex.europa.eu/LexUriServ/LexU riServ.do?uri=COM:2007:0502:FIN:EN:PDF 
128 http://eur-lex.europa.eu/LexUriServ/LexU riServ.do?uri=COM:2008:0773:FIN:EN:PDF 
EN 144   EN Natura 2000-network is ensured by hunting de rogations granted on correct grounds and by 
appropriate protection regimes and management of protected sites, including of the species 
present there. 
The priorities in the Nature sector have largel y remained the same from previous years. Legal 
enforcement work in this sector, as in other en vironment sectors, must be prioritised in the 
interest of the efficient pursuit of the objectives of environmen t legislation. The approach to 
be taken in the implementation of EC environm ental law in particular is laid down in the 
Commission Communication CO M(2008)773 final on implementing European Community 
Environmental Law. 
Therefore, in the coming years, the Commission will continue to pursue its legal enforcement 
action to help meet the main objectives of the nature conservation legisl ation. To this effect, 
high priority will continue to be given to pursuing infringement cases concerning significant non-conformity of national implementing legisla tion with the Birds and Habitats Directives, 
insufficient site designations (m ainly in the EU-12 Member States) and the lack of adequate 
legal protection and management regimes for the Natura 2000 sites. Focus will also be on 
addressing breaches concerning bi g infrastructure projects or interventions involving EU 
funding that have significant adverse impacts on Natura 2000 sites. In  this context, the 
Commission will take into account co nsiderations such as irrevers ible ecological damage and, 
where appropriate, seek interim measures  from the European Court of Justice
129. 
Infringements concerning unsustain able hunting practices in some Member States will also be 
followed up closely. In order to better handle individual complaints pointing to widespread 
problems of bad implementation, the esta blished practice of launching horizontal 
infringement cases will c ontinue to be followed. 
7.2. Waste Management 
7.2.1.  Current position 
7.2.1.1.  General introduction 
Waste legislation covers a large share of th e entire EU environmental acquis and includes 
thirteen main legislative acts adopted by the European  Parliament and the Council and a large 
number of related decisions adopted through com itology procedures. The overall scope of this 
legislation is the prevention or  reduction of waste production, the re-use, the recycling, other 
types of recovery than recycling and the dispos al of different categories of waste; permitting 
and control of disposal operations, mainly landf ills; and shipments of waste within the EU as 
well as to and from third countries.  
                                                 
129 In the last two years the Commission has three times sought for interim measures in nature protection 
cases. In cases C-503/06, Commission v. Italy  and C-76/08, Commission v. Malta , the Court ordered the 
Member States to halt illegal hunting activities on 19 December 2007 and 24 April 2008 respectively. 
In case C-193/07, Commission v. Poland , the Commission sought interim measures from the ECJ to 
prevent a Polish motorway project causing serious habitat damage: the request was dropped when 
Poland agreed to halt the relevant works pending an ECJ judgment. 
EN 145   EN The basic requirements are laid down  by the Waste Framework Directive130 which is 
complemented by specific legislation addressing  particular environmental threats associated 
with waste. This specific legislation incl udes harmonised rules on waste management 
practices, including strict emi ssion limits and operating requirements for the incineration and 
landfill of waste; harmonised rules on shipment s of waste; and product specific recycling 
legislation setting targets for collection and recycling and introducing producer responsibility 
principles for specific waste streams derived from consumer goods, in particular packaging 
waste, end of life vehicles, waste electrical  and electronic equipm ent, mining waste and 
batteries.131 
7.2.1.2.  Report of work done in 2008 
During 2008, EU waste legislation was subject to a major exercise of streamlining, 
simplifying and improving existing provisions.  This included adoption by the European 
Parliament and the Council of a new Waste Fr amework Directive in November 2008 and the 
Commission's proposals to recast directives on respectively the prevention, re-use and 
recovery of waste electrical and electronic equipment and the restriction of the use of 
hazardous substances in such equi pment, submitted in December 2008.132 
The new Waste Framework Directive repl aces the previous framework directive 
(2006/12/EC) and the directives on hazardous  waste (91/689/EEC) and waste oils 
(75/439/EEC) with effect from 12 Decem ber 2010. The Waste Framework Directive 
establishes a clear waste hierarc hy, i.e. firstly prevention; then preparing for re-use; recycling; 
other recovery, e.g. energy recovery ; and finally disposal as a la st option. The directive aims 
to ensure, together with the Landfill Direct ive (1999/31/EC) and the Waste Incineration 
Directive (2000/76/EC), that waste management operations  are environmentally sound and 
adequately permitted.  
The Waste Framework Directive forms a basis fo r all other EU waste le gislation by laying 
down core definitions. The new directive has been modernised and introduces a new approach 
to waste management that encourages the preven tion of waste. Member States are required to 
establish waste prevention programmes (Article  29). Other key requirements introduced by 
the new directive concern the oblig ation to set up separate collect ion for paper, metal, plastics 
and glass and the fulfilment of a number of ta rgets on preparing for re-use, recycling and 
other material recovery. By 2020, Member States  must recycle 50% of their household waste, 
at least paper, metal, plastics and glass,  and possibly similar wa ste and 70% of their 
construction and demolition waste. Several provisions  remain in the new directive, such as the 
key requirements for Member States to adop t waste management plans (Article 16) and 
establish integrated and adequate networks  for disposal installations (Article 28). 
                                                 
130 Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste 
and repealing certain directives (OJ L, 312, 22.11.2008  p. 3). This Directive replaces Directive 
2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste (OJ L 114, 
27.4.2006, p. 9) and has to be transposed by the Member States by 12 December 2010. 
131 For an entire list of all EU waste legislation, please consult the Commission's Europa web-site 
http://ec.europa.eu/environment/waste/index.htm .  
132 Proposal for a Directive of the European Parlia ment and of the Council, on waste electrical and 
electronic equipment (WEEE) SEC( 2008) 2933, SEC(2008) 2934. Proposal for a Directive of the 
European Parliament and of the Coun cil, on the restriction of the use of certain hazardous substances in 
electrical and electronic equipment SEC(2008) 2930, SEC(2008) 2931. 
EN 146   EN The Commission adopted in December 2008 propos als to recast the directives on waste 
electrical and electronic equipm ent ('WEEE') and restrictions on hazardous substances in such 
equipment ('RoHS'). These directives aim, in ter alia, at diverting WEEE from landfills and 
incinerators to environmentally sound re-use and recycling and at restricting the use of 
hazardous substances in WEEE. The propos als aim to develop a better regulatory 
environment, one that is simp le, understandable, effective a nd enforceable. The scope and 
definitions of both directives would thus be clarified. The proposed directives would also 
improve their coherence with other EU legisl ation such as the Waste Framework Directive 
and REACH and the recent "Marketing of Products" package133.  
The proposals would enhance the implementation and enforcement of current provisions and 
lessen the administrative burden on businesses. It  is proposed to harmonise registration and 
reporting obligations for producers and to make  national registers interoperable. It is 
estimated that savings under the proposed revi sed directives would amount to some €66 
million. The directives seek to better control the illegal trade of electrical and electronic 
equipment. In this respect the proposed ch anges of the WEEE Directive includes minimum 
monitoring requirements intended to strengthe n Member States' inspection and monitoring 
with an emphasis on controlli ng waste treatment and waste shipments. In addition, the 
proposed revised WEEE directive sets new binding targets for the collection, reuse and 
recycling of electrical and electronic equipment. 
A number of new key legislative measures co ncerning waste were also voted favourably by 
the technical adaptation committees and a dopted by the Commission through comitology 
procedures. Such measures included hazardous wa ste, end of life vehicles and batteries. 
The delays for Member States to transpose two major pieces of waste legislation expired in 
May 2008 for the Directive 2006/21/EC on mining waste134; and in September 2008 for 
Directive 2006/66/EC on batteries and accumulators135. Concerning the Directive on mining 
waste full transposition has been achieved fo r 13 Member States and for 15 Member States 
concerning Batteries Directive. In 2008 the Co mmission initiated legal enforcement actions in 
several cases concerning Member States' failure  to communicate their transposition measures 
of those directives.  
The Commission also carried out a number of studies and taken legal action as regards the 
conformity of national transposition measures w ith several key waste directives, in particular, 
the end of life vehicles directive (ELV), RoHs and the WEEE directive: 
• With regard to ELV Directive, conform ity has been achieved for seven Member 
States. In 2008 the Commission has conti nued enforcement actions concerning non-
conform national legislation. As of Decembe r 2008, six infringement procedures were 
ongoing against Belgium, Denmark, Finland, France, Italy and Sweden. In 2009, as a 
horizontal exercise for remaining 14 Memb er States, the Commission will assess the 
national legislation in coopera tion with the relevant Memb er States and take legal 
enforcement action where necessary.  
                                                 
133 COM(2007)35 final, Communication from the Commission to the European Parliament, the Council 
and the European Economic and So cial Committee, The Internal Mark et for Goods: a cornerstone of 
Europe’s competitiveness Brussels, 14.2.2007. 
134 OJ L 102, 11.4.2006, p. 15. 
135 OJ L 266, 26.9.2006, p. 1. 
EN 147   EN • With regard to WEEE Directiv e, conformity is achieved fo r seven Member States. In 
2008 the Commission continued legal en forcement actions opened in 2007 
horizontally against a number of Member States. As of end of 2008, infringement 
cases were open for 15 Member States (Czech Republic, Denmark, Estonia, Spain, Finland, France, Ireland, Hungary, Italy, Luxembourg, Lithuania, Latvia, Portugal, 
Sweden and Slovakia). In 2009, the Commissi on in cooperation with the remaining 
Member States (Malta, UK, Belgium, Bulgaria  and Romania) will a ssess their national 
legislation and take legal enfo rcement action where necessary.  
• With regard to RoHS Directive, legal asse ssments finalised in 2008 show that correct 
transposition is achieved by 15 Member States , for 8 of them after legal enforcement 
actions were launched. As of end of 2008, infringement cases were open for 9 
Member States (Czech Republic, Denmark, Spain, Finland, France, Hungary, Italy, 
Sweden and Slovakia). In 2009 the Commi ssion in cooperation with Romania and 
Bulgaria will finalise the assessment of their national legislation and will take legal enforcement action where necessary. 
In 2008, Member States reported on  the achievement of the collec tion and recycling targets of 
the ELV directive, the WEEE directive and the Packaging wa ste directive and shipment of 
waste regulation. After the Commission sent reminders to Member States about their 
reporting obligations in 2007, in 2008 legal en forcement action was launched against 11 
Member States concerning failure to fulfil reporting obligations under the Council Regulation 
259/93/EEC and Regulation 1013/2006/EC on waste shipments. In 2009, legal enforcement 
actions will be launched against 9 Member Stat es for not fulfilling their reporting obligations 
under one or more of those Directives. 
With regard to transposition of the Landfill Directive 1999/31/EC, legal action was taken 
against 15 Member States for inadequate transpos ition. To date most of these cases have been 
closed. Second warning letters were sent to 4 Member States (Denmark, Czech Republic, Estonia and France) and 3 Member  States (Belgium, France and Sp ain) were referred to the 
European Court of Justice. The assessment of Bulgaria's and Romania's legislation is ongoing. 
In 2008, there has been one judgment related to illegal landfills (C-442/06 against Italy). The 
two horizontal cases against Fr ance (C-423/05) and Italy (C- 135/05) are followed up in the 
Article 228 EC procedure. A first written warning was sent to Italy and to France in 2008. In a 
horizontal case against Spain concerning a significant number of illegal and uncontrolled 
landfills, a final written warning was sent in 2008. After a final written warning for Spain's 
failure to comply with the Court ruling C-157/ 04 (La Gomera) Spain has complied with the 
judgment and the case was closed in 2009.  
With regard to the serious situations in Italy, Campania region and Bulg aria, Sofia concerning 
deficient implementation, in 2008 the Commi ssion has worked very closely with both 
Member States. A final warning to Bulgaria was sent in November 2008 for its failure to 
provide an adequate system for the disposal of household waste in Sofia.  Concerning Italy in 
June 2007 the Commission launched legal action ag ainst Italy over the chronic waste crisis 
affecting Naples and the rest of the Campan ia region. The Commission considers that Italy 
failed to set up an adequate and integrated wast e management system in the Campania region 
and to guarantee that waste is collected, treate d and disposed of wit hout endangering human 
health and the environment. In view of the continuation of th e infringement, the Commission 
referred the case to Court of Justice in July  2008. The case is currently pending before the 
ECJ. 
EN 148   EN During 2008 a number of specific actions were carri ed out in order to address two particularly 
serious and wide-spread implementation deficits : illegal waste disposal and illegal waste 
shipments.  
• A series of thirty awareness events and in formation exchanges with Member States and 
stakeholders were completed. The events aimed to promote better enforcement and 
inspections on the ground, focusing on illega l waste shipments and illegal landfills. 
Following the events a number of conclusions  were drawn and a set of recommendations 
were published in a report available on the Commission's Europa web-site.136 
• The Commission supported via service contr acts the carrying out of a number of joint 
enforcement actions and exchange programs c oncerning the EU waste shipment regulation, 
organised by IMPEL's cluster for transfront ier shipments (IMPEL-TFS); and inspections 
and monitoring of landfills in co-operation with IMPEL. 
• A help-desk for the implementation of EU waste legislation was established in order to 
investigate and analyse inquiries received  from citizens, stake holders and national 
authorities on the implementation and interpre tation of the Waste Shipment Regulation and 
the Waste Framework Directive. 
• Bilateral and multilateral meetings with Member  States and stakeholders, including regular 
meetings of a 'Waste Directors' Informal Group' , were organised with a view to assist and 
discuss with Member States and stakeholders  on issues concerning the implementation of 
EU waste legislation. 
• Studies were initiated and are being carried out  in order to examine how to best address 
implementation problems in the future, for ex ample a feasibility study on the establishment 
of a waste implementation agency and the need  for clear and specific criteria relating to 
waste shipment inspections and controls. 
Judgments of the Court of Justice in 2008 
A number of important ECJ judgments were  delivered in 2008. Italy was condemned for 
incorrect transposition of some provisions of  Directive 1999/31/EC on landfill of waste (C-
442/06, 10 April 2008, Commission/It aly) and was condemned for maintaining in its law 
provisions excluding from wa ste definition some substan ces (C-283/07, 22 December 2008, 
Commission/Italy). The wa ste legislation remains one of the main sources for preliminary 
ruling references by national Courts, in particul ar as regard the definition of waste and the 
qualification of by-product (C-188/07, 24 June 2008, Commune  de Mesquer; C-387/07, 11 
December 2008, MI.VER Srl). It is expected that the new legislation adopted in 2008 
(Directive 2008/98/EC to be transposed by 12 December 2010) will reduce the uncertainty in 
these domains. In addition, the Court clarified de finitions and as regard Directive 2000/76/EC 
on incineration of waste (C-251/07, 11 Septem ber 2008, Gävle Krafvärme AB and C-317/07, 
4 December 2008, Lahti Energia Oy). The Court annuled point 2 of Commission Decision 2005/717/EC as regards tolerances for decaBDE in electric and electronic products (C-14/06, 
1 April 2008, Parliament/Commission). As a c onsequence, from 1 July 2008, decaBDE is 
banned from these products. 
                                                
 
136 The Commission's Europa web-site: http://ec.europa.eu/environment/waste/index.htm .  
EN 149   EN 7.2.2.  Evaluation based on the current situation 
The overall situation of implementation of EU waste legislation is critical. The existing 
implementation deficits result in significant,  negative impacts for citizens' health and 
environment and are widespread  throughout the EU. A constantly high number of complaints 
and petitions137 are received concerning illegal landfills in several Member States, illegal 
waste shipments are frequently occurring, notabl y electronic waste and end-of-life vehicles, 
and there is a lack of adequate  waste management infrastructu re in several Member States. 
The implementation gaps as regards illegal landf ills and illegal waste shipments and the lack 
of adequate waste management infrastructure remain persistent in large parts of the EU, 
although the Commission has initia ted several actions during 2007 in  order to bridge the gaps. 
Further considerable pressure emanates from the fact that by 16 July 2009 all landfills in the 
EU either had to be fully complia nt with the technical requiremen ts of the landfill Directive or 
had to be closed. It is not excluded that a numbe r of Member States will not be in a position to 
fulfil this requirement. 
7.2.3.  Evaluation results 
7.2.3.1.  Priorities 
In view of the seriousness of many existing infr ingements, in particular relating to illegal 
waste disposal and gaps in waste infrastructu re, and due to the long time duration they have 
persisted, a high priority should be given to effectively pursuing legal enforcement actions 
and proceedings before the Court of Justice.  Specific focus should be given to address 
structural and systemic failures by Member States to take effective actions in order to address these problems. 
The wide-spread nature of these implementation de ficits in large parts of the EU justify that 
they also remain a priority for the Commission' s preventive measures next year. The current 
actions should continue with a focused approa ch addressing specific problems identified in 
each of the Member States concerned through bi lateral events and meetings. These preventive 
actions should be extended be yond illegal landfills and illegal waste shipments. The serious 
situations of deficient implementation of Euro pean waste legislation in the Campania region 
in Italy and Sofia in Bulgaria demonstrate also that improvements are needed beyond the 
development of adequate waste management infrastructure such as waste prevention 
programmes and public awarene ss raising, the development of  recycling capacities and a 
system of separate waste collection. 
Certain key requirements to be implemented by Member States during 2009 should be given a 
high priority. These include the achievement of EU waste reduction and management goals, 
such as the diversion of biodegradable waste from landfills; and the obligation that all landfills comply with the requirements of the Landfill Directive by 16 July 2009. 
As regards illegal waste shipments, the lack of  proper enforcement and effective controls and 
inspections appear to be a f undamental problem in large part s of the EU. The studies and 
service contracts initiated by the Commission should be  completed with a view to identify 
                                                
 
137 At the end of 2008, the complaints and infringements concerning EU waste legislation represented 
nearly 25% of all environmental complaints and infringements. 
EN 150   EN how precise and clear criteria for waste shipment inspectio ns and controls could be 
established. 
Another important priority is to achieve better  implementation of EU waste legislation as a 
support to EU's industry and tr ade in the waste sector. If properly implemented, EU waste 
legislation may provide opportunities for enterpri ses to innovate. EU's waste management and 
recycling industries are alrea dy making substantial contributi ons to the EU economy and are 
constantly developing. The legislation and its implementation should also serve to take the 
interests of these stakeholders into considera tion. This may provide important gains for both 
environmental and enterprise policies, for ex ample by providing better access to secondary 
raw materials or converting one of the most importan t greenhouse gases - methane gas - from 
landfills into electricity. 
7.2.3.2.  Planned action (2009 and beyond) 
The Commission should aim to fulfil the objecti ves and priorities se t out above through the 
following specific actions: 
• Pursue effectively and consistently legal enfo rcement and proceedings before the Court of 
Justice concerning illegal landfills  and gaps in waste infrastruc ture, with a particular focus 
on structural and systemic failures by Member States to address these problems. On the 
basis of conformity studies and in coopera tion with Member States assess and where 
necessary launch legal enforcement actions concerning the conformity of national 
transposition measures with the Directive on  packaging and packaging waste, Directive on 
landfill of waste, RoHs Directive, WEEE Directive and ELV Directive. 
• Organise awareness events, information exch anges and other bilateral and multilateral 
meetings with Member States and stakehol ders, with a targeted approach addressing 
specific problems identified in each Member States and covering the most serious and 
wide-spread implementation deficits, includin g illegal landfills, illegal waste shipments 
and the lack of adequate waste management infrastructure existing in several Member 
States. 
• Develop clear and effective crit eria for waste shipment inspections and controls with a 
view to strengthen the enfor cement of the Waste Shipment Regulation and prevent illegal 
waste shipments. 
• Closely monitor (a) Member States' compliance with the targets set in the Landfill 
Directive for diverting biodegradable waste fr om landfills; (b) the obligations to ensure 
that all landfills comply with this directiv e's requirements, in particular concerning 
obligations to close all non-conform la ndfills by 16 July 2009; and (c) the waste 
management capacity and landfill ca pacity in each Member State. 
• Improve the development of waste manageme nt plans and waste prevention programmes 
in order to avoid cases such as in Campan ia region in Italy and in Sofia, Bulgaria. 
• Promote the establishment of best practices on implementation of EU waste legislation, 
with a particular focus on supporting EU's  industry and trade in the waste sector. 
• Publish implementation reports for seve ral pieces of EU waste legislation.138 
                                                 
138 The directives on waste oils  (75/439/EEC); sewa ge sludge (86/278/EEC); hazardous waste 
(91/689/EEC); packaging and packaging waste (94/62/EC); landfills (1999/31/EC); WEEE 
(2002/96/EC); the Waste Framework Directive (2006/12/EC); end of life vehicles (2000/53/EC); and 
the Waste Shipment Regulation (259/93/EEC).  
EN 151   EN 7.2.4.  Sector summary 
The overall situation in implementation of EU wast e legislation remains critical, in particular 
with a view to heavily impacting landfil l and waste shipment deficiencies. 2008 was 
characterized through a major br eakthrough on the legislative side with the adoption of the 
new Waste Framework Directive which is seen as  the major step towards transforming the EU 
into a recycling society to be fit for the next decade. The recast of the WEEE and RoHS 
Directives adopted by the Commission in late 2008 will streamline environmentally friendly disposal of e-waste and lessen the administrative burden on businesses. 
Legal enforcement to ensure transposition of various Directives, such as the Mining Waste 
and Batteries Directive, with focus on WEEE an d RoHS, ELV, Landfill Directives as well as 
reporting obligations under the Waste Shipment  Regulation remains as a priority in 2009. 
However, it will be equally important to complement down stream enforcement action by 
stepping up up-stream measures with a view  to enhanced waste pr evention, recycling and 
separate waste collection. 
Efforts in combating illegal landfill have cons iderably been stepped up in 2009. As from 16 
July 2009 all non-compliant landfills in Europe had to be closed. Therefore, 2009 is the year in which monitoring of compliance with targets set in different pieces of legislation as well as 
legal enforcement through infringement action will continue on a high pace. Such action will be supplemented by awareness rais ing events with Member States and stakeholders on landfill 
and waste shipment. Furthermore, criteria will  be developed with a view to strengthening 
implementation through inspec tion, notably for the Waste Shipment Regulation and the 
Landfill Directive. It will also be necessary to develop a strategy in order to avoid cases of 
total failure waste management such as in Campania and Sofia. 
7.3. Environmental Impact Assessment and Strategic Environmental Assessment 
7.3.1.  Current position 
7.3.1.1.  General introduction 
There are two important pieces of legislati on in this sector: Counc il Directive 85/337/EEC
139 
on the assessment of the effects of certain public  and private projects on the environment, as 
amended by Directives 97/11/EC140 and 2003/35/EC141 (the EIA Directiv e) and Directive 
2001/42/EC of the European Parlia ment and of the Council on the assessment of the effects of 
certain plans and programmes on the environment (the SEA Directive142) 
The EIA Directive  obliges Member States to carry out environmental impact assessments 
before certain types of public and private pr ojects which are likely to have a significant 
impact on the environment are authorised. 
The application and effectiv eness of environmental impact  assessment legislation, in 
particular the EIA Directive, has been subject to  regular reviews in the past. On the basis of 
such reviews, the EIA Directive was subs equently amended twice, in 1997 and 2003: 
                                                 
139 OJ L 175, 05.07.1985 
140 OJ L 073, 14.03.1997 
141 OJ L 156, 25.06.2003 
142 OJ L 197, 21.7.2001, p. 30. 
EN 152   EN  Directive 97/11/EC  widened the scope of the EIA Directive by increasing the types of 
project covered, and the number of proj ects requiring mandatory environmental 
impact assessment (Annex I). It also stre ngthened the procedural basis of the EIA 
Directive by providing for new screeni ng arrangements, including new screening 
criteria (at Annex III) for Annex II projec ts, and providing minimum information 
requirements. 
 Directive 2003/35/EC was seeking to align the provisions on public participation with 
the Aarhus Convention on public particip ation in decision-making and access to 
justice in environmental matters. 
The SEA Directive  seeks to ensure that the environmen tal consequences of certain public 
plans and programmes that are lik ely to have significant environm ental effects are identified 
and assessed while they are being prepared and before they are approved. 
7.3.1.2.  Report of work done in 2008 
The EIA Directive 
The Commission is assessing the conformity  of the national transposition measures 
communicated and initiates, when necessary, infringement procedur es. The EIA Directive 
generates a relatively high number of complain ts, due to its large sc ope of application. 
However, given the essentially procedural character of the ob ligations laid down, only a small 
number of complaints lead to infringement cases. The majority of the infringement cases concern bad (incomplete or incorrect) transpositi on of the Directive's provisions or failure of 
the Member States to apply the screening mechanism (article 4(2) and Annex III of the Directive). 
In 2008, the Commission opened in total 16 new in fringement procedures on the basis of the 
EIA Directive. Twelve cases were opened ag ainst Austria, Belgium, Bulgaria, Czech, 
Germany, Italy, Poland and United Kingdom concerning bad applica tion of the EIA Directive, 
10 of which were based on a complaint. Four cases were launched against Italy, Poland, 
Romania and Slovenia for non-conform transposition of the EIA Directive. Five cases out of 
those opened in 2008 have already been closed. 
The SEA Directive 
The deadline for transposing the SEA directive expired on 21 July 2004, but significant delays 
in transposition have occurred in many Member States. For this reason, the Commission 
launched non-communication infringement pro ceedings against many Member States. All 
these cases have already been closed since a ll the Member States ha ve already communicated 
their national transposing measures. 
Thus, in 2008 infringement proceedings for no n-conform transposition of the SEA Directive 
were opened against the following eleven Member States: Bulgaria, Czech Republic, 
Denmark, Estonia, Ireland, Latvia, Lithuania,  Malta, Poland, Slovenia and United Kingdom. 
For some Member States the cases have been  already closed following clarification of 
national authorities and/ or adoption of necessa ry amendments ensuring compliance with the 
Directive's requirements (Bulgaria,  Latvia, Malta and Poland).  
Judgments of the Court of Justice in 2008 
The EIA Directive has been the subject of severa l cases brought before the European Court of 
EN 153   EN Justice. The case-law of the Court of Justic e has contributed to a better understanding of 
certain provisions of the Di rective. In 2008, the ECJ delive red, inter alia, the following 
rulings: 
In Case C-2/07 (Judgment of 28/02/2008), in re lation to works at Liège-Bierset Airport, 
which were alleged to have promoted its use fo r air freight services and to have caused an 
increase in night flights, the C ourt confirms that the scope of Directive 85/337 is wide and its 
purpose very broad. The ruling mainly relates to the definition of development consent.  
In Case C-215/06 (Judgment of 03/07/2008), the C ourt dealt with the i ssues of retention, 
permissions and "after-the-event regularis ations" of unlawful operations. The Court 
concluded that "[…]  by giving to retention permission, which can be issued even where no 
exceptional circumstances are proved, the same effects as those attached to a planning 
permission preceding the carrying out of work s and development, when, pursuant to Articles 
2(1) and 4(1) and (2) of Directive 85/337 as am ended, projects for whic h an environmental 
impact assessment is required must  be identified and then – before the grant of development 
consent and, therefore, necessarily before they  are carried out – must be subject to an 
application for development consen t and to such an assessment, Ireland has failed to comply 
with the requirements of that directive. " 
In Case C-142/07 (Judgment of 25/07/2008), the que stion of application of the EIA Directive 
to the Madrid M-30 urban ring- road was raised in a prelim inary ruling from a Court of 
Madrid (Spain). The Court has underlined  that Directive 85/337/EEC (as amended) "…must 
be interpreted as meaning that it provides  for environmental impact assessment of 
refurbishment and improvement projects for ur ban roads, either where they are projects 
covered by point 7(b) or (c) of Annex I to the di rective, or where they are projects covered by 
point 10(e) of Annex II or the fir st indent of point 13 thereof, which are lik ely, by virtue of 
their nature, size or location and, if appropriate, hav ing regard to their interaction with other 
projects, to have significant effects on the environment" . 
In Case C-66/06 (Judgment of 20/11/2008 Commi ssion / Ireland), the Court declares that, by 
not adopting, in conformity with Articles 2( 1) and 4(2) to (4) of Council Directive 
85/337/EEC of 27 June 1985 on the assessment of the effects of certain  public and private 
projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, all 
measures to ensure that, before consent is given, proj ects likely to have si gnificant effects on 
the environment that belong to the categories of projects covered by poi nt 1(a) to (c) and (f) 
of Annex II to that directive are made subject to a requirement for development consent and to an assessment with regard to their environmental effects in accordance with Articles 5 to 10 of the directive, Ireland has failed to  fulfil its obligati ons under the directive;  
It is interesting to note that the Court considered (paragraph 85) that "It follows that, by 
setting thresholds which take account only of th e size of projects – to the exclusion of the 
other criteria laid down in Annex III to Dire ctive 85/337 – for project categories covered by 
point 1(a) to (c) of Annex II to the direct ive and by not providing for a case-by-case 
examination for those project ca tegories ensuring that projects likely to have significant 
effects on the environment do not escape an assess ment of their environmental effects, Ireland 
has exceeded the limits of its discretion under Ar ticles 2(1) and 4(2) of the directive and has 
consequently not adopted all necessary measur es to ensure that projects likely to have 
significant effects on the envi ronment are made subject to a requirement for development 
consent and to an assessment of their environmen tal effects in accordance with Articles 5 to 
10 of the directive." 
EN 154   EN 7.3.2.  Evaluation based on the current situation 
7.3.2.1.  Implementation of the EIA-SEA Directives 
In the interests of better implementation of the EIA and the SEA Directive, the Commission 
services have developed in recent years a num ber of guidance documents on particularly 
important aspects of both directives143. 
In addition, the Commission is currently prepari ng reports on the application of both the EIA 
and the SEA Directives (expected in mid-2009). Regarding the EIA Directive, pursuant to its 
Article 11(3), the Commission serv ices are preparing the repo rt on the application and 
effectiveness of the Directive. The report wi ll address and evaluate the status of the 
application and effectiveness of  the Directive and its implementation by the Member States.  
Regarding the SEA Directive, the Commission services are preparing an implementation 
report pursuant to Article 12(2) of the Directiv e. The report will address and evaluate the 
status of the application and effectiveness of the Directive and its implementation by the 
Member States. It must be remembered however  that the Directive was in fact implemented 
very recently in the Member States (deadline for transposition was 21 July 2004) and consequently the experience in its actual implementation is ra ther limited. In conclusion, the 
conformity of Member States' legislation cannot ye t be considered to have been fully secured.  
7.3.2.2.  Enforcement of the EIA/SEA Directives 
Although the Environmental Impact  Assessment sector continues to generate a high number 
of complaints, its contribution to the overall number of open cases ha s decreased. Most open 
cases in the sector still relate to the EIA Dir ective, but cases relating to the SEA Directive are 
on the increase. The current situation is satisfactory. 
The majority of the infringement cases relate d to the EIA Directive concern bad (incomplete 
or incorrect) transposition of th e Directive's provisions or failu re of the Member States to 
apply the screening mechanism (Article 4( 2) and Annex III of the EIA Directive). 
With regard to the SEA Directive, it is relati vely recent and there is not sufficient experience 
on its implementation. Given the similar nature of the obligations between the EIA and SEA 
Directives, it is to be expected that problems in the correct applicatio n of the SEA Directive 
will be similar to those encountered in applying the EIA Directive. In terms of enforcement, 
early signs are that decisions as to whether smaller plans and program mes or modifications 
require an SEA (so-called “screening” decisi ons) could pose problems of bad application.  
7.3.3.  Evaluation results 
7.3.3.1.  Priorities 
In 2008, the Commission services continued applyi ng the priorities identified in the previous 
report aiming at rationalising th e handling of this high number  of cases and ensure the 
effective implementation of the EIA and SEA directives. Those priorities were also 
highlighted by the Commission in its co mmunication COM/2008/773 and the Commission 
                                                
 
143 http://ec.europa.eu/environment/eia/home.htm   
EN 155   EN staff working document accompanying the communication. The priority areas regarding the 
enforcement of the EIA and SEA Directives include the following: 
 Non-conformity of transposing measures for the EIA/SEA Directives likely to affect 
the attainment of the legislative objectiv es. These cases now mainly concern the EU-
12 Member States. 
 Breaches concerning big infrastructure projects or interventions involving EU funding. 
 Breaches linked to bad transposition of certa in provisions of the environmental impact 
assessment legislation likely to affect ove rall the attainment of the legislative 
objectives. 
 Breaches that reveal interpretation problem s concerning certain provisions of the 
environmental impact assessment legislation which could have a significant influence 
on the impact of the legisla tion that would justify seekin g clarification from the Court 
of Justice. 
Apart from the above cases where the Comm ission legal enforcement action might be 
indispensable, individual breaches of certain provisions of the environmental impact assessment legislation should primarily be addr essed through the existi ng review mechanisms 
at Member State level. 
The Commission services will continue implementing the priorities recently identified in the 
sectoral communication COM/2008/773 and th e Commission staff working document 
accompanying the communication.  
Depending on the results of future reports and on their application of  the EIA and the SEA 
Directives, further amendments to those priorities ca nnot be excluded. 
7.3.3.2.  Planned action (2009 and beyond) 
The forthcoming reports on the application of both the EIA and the SEA Directives (expected 
in mid-2009) will form the basis for future  Commission’s action in the sector, including a 
simplification exercise, in terms of clarification of certain provisions of the EIA Directive. 
With regard to EIA Directive, based on the findings of the report th e Commission services 
will consider appropriate amendments that may lead to a simplification exercise, in terms of clarification of certain provisions of the EI A Directive, following the accession of the new 
Member States, probably through a recast initiative. This will aim to ensure better regulation, 
clearer provisions and strengthened compliance by the Member States, inter alia with the relevant rulings of the ECJ.  
With regard to SEA Directive, in light of  short experience on its implementation, it is 
considered that amendments woul d be premature at this stage. 
7.3.4.  Sector summary  
The EIA Directive has achieved its major objectiv es. At present, all Member States have 
established relevant comprehens ive regulatory frameworks. The EIA Directive is seen as one 
of the EU principal pieces of  environmental legislation. However, since the development of 
EIA is an evolving process, the challenge of en suring that the Directive is implemented in an 
effective and consistent manner across all Memb er States is continuous. The forthcoming 
review on the application and effectiveness of the Directive will use the twenty-year 
implementation experience gained in order to address this cha llenge. This forthcoming report 
EN 156   EN will form the basis for future Commission’s action in the sector, including a simplification 
exercise. 
The SEA Directive is recent and there is no t sufficient experience on its implementation. 
Amendments are premature at this stage. The Commission services are currently preparing an 
implementation report, pursuant to  Article 12(2) of the Directiv e. The report will address and 
evaluate the status of the app lication and effectiveness of the Directive and its implementation 
by the Member States.  
The Commission services will con tinue the implementation of bot h Directives on the basis of 
the priorities recently iden tified in the sectoral communication COM/2008/773 and the 
Commission staff working documen t accompanying the communication.  
7.4. Protecting Water Resources  
7.4.1.  Current position 
7.4.1.1.  General introduction  
Water legislation in the European Union ente red a new era following  the adoption of the 
Water Framework Directive144 which  establishes a strategic framework for the protection of 
all water bodies, i.e. rivers, lakes, coastal waters and groundwater in a highly integrated 
manner. As the cornerstone of EU water policy,  the Water Framework Directive provides that 
all water bodies must meet the standard of “good status” as a rule by the end of 2015. To do 
so, Member States must draw up a river basin management plan (RBMP) and a programme of 
measures for each river basin district. The draft plans and programmes must have been 
submitted to the public for consultation by December 2008 at the latest. It is then foreseen that they will be adopted by December 2009.  
The Water Framework Directive will repeal all existing EU water acts by December 2013, 
except the Urban Waste Water,
145 Drinking Water,146 Bathing Water147 and Nitrates 
Directives.148 The implementation of the Water Framew ork Directive must not jeopardise the 
achievement of the objectives of these re maining EU water acts and vice-versa.  
The Urban Waste Water Directive , in particular, is a key el ement of EU water policy for 
achieving the Water Framework Directive enviro nmental objective of good status. The Urban 
Waste Water Treatment Directive requires that wastewater generated by agglomerations is 
collected and made subject to secondary treatm ent before being discharged into the natural 
environment. More stringent treatment must be a pplied when wastewater is discharged into so 
called sensitive areas. The original EU15 Member  States should have achieved the objectives 
of the Directive in 1998 for sensitive areas, in 2000 for large towns and cites discharging in 
                                                 
144 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a 
framework for Community action in the field of water policy (OJ L 327, 22.12.2000, p. 1–73). 
145 Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ L 135, 30.5.1991). 
146 Directive 98/83/EC of 3 November 1998 on the qua lity of water intended for human consumption (OJ 
L330, 5.12.1998). 
147 Directive 76/160/EEC of 8 December 1975 concer ning the quality of bathing water (OJ L031, 
5.2.1976). This Directive is in the process of being replaced by Directive 2006/7/EC of 15 February 
2006 concerning the management of bathing water quality and repealing Directive 76/160/EEC (OJ L of 4.2.2006). 
148 Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against 
pollution caused by nitrates from agricultural sources  (OJ L 375, 31.12.1991, p. 1–8). 
EN 157   EN normal areas and by 2005 for smaller towns disc harging in normal areas. Regarding newer 
EU12 Member States, which joined the EU  in 2004 and 2007, their Accession Treaties 
provide for extended time periods to meet  the objectives of the Directive.  
The Drinking and Bathing Water Directives  require Member States to meet binding quality 
standards to ensure safe drinkable water from the tap and clean water for bathing, to monitor 
whether the standards are complied with and to inform consumers and the public accordingly.  
The Nitrates Directive  is also an important instrument  which deals with the relationship 
between agriculture and water quality. In order to reduce and prevent wa ter pollution caused 
by nitrate pollution originating fr om agricultural sources, Member  States must designate so 
called nitrate vulnerable zones and then adopt and implement action programs in these zones 
with the aim of diminishing nitrate and fer tilizer inputs to land. Mo nitoring programs are 
required to be set up to assess the e fficiency of these action programs.  
As a complementary requirement to the Water Framework Directive, water directives have 
also been adopted in recent years in the field of floods,149 marine waters150 and 
groundwater.151  
7.4.1.2.  Report of the work done in 2008 
Management of the acquis, new legi slation and preventive measures  
The implementation of the Water Framework Directive  in 2008 was characterised by three 
main developments. Firstly, 15 Member Stat es published their draft RBMPs for public 
consultation, with the remaining Member Stat es planning to publish th eirs by June 2009. The 
Commission also developed a preliminary outli ne for compliance-checking in consultation 
with Member States to form the basis on which the Commission will assess the content of the final RBMPs in 2010. Secondly, the Commis sion adopted Decision 2008/915/EC on the 
results of the intercalibration exercise to ensure that the values used by national authorities to 
monitor and assess the ecologi cal status of surf ace water bodies are comparable among 
Member States.
152 Thirdly, Directive 2008/105/EC was adopted setting environmental quality 
standards (EQS) for the pollutants identifi ed under the Water Fram ework Directive as 
“priority substances” and certain other pollutants.153 Member States must use these EQS to 
determine whether the chemical status  of surface water bodies is "good".  
The Commission continued the stakeholder co nsultation process on the future eventual 
revision of the Drinking Water Directive  in 2008 and also drew up two guidance documents 
to support the implementation of the new Bathing Water Directive: Decision 2009/64/EC on 
                                                 
149 Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the 
assessment and management of flood risks  (OJ L 288, 6.11.2007, p. 27–34). 
150 Directive 2008/56/EC of 17 June 2008 establishing a framework for community action in the field of 
marine environmental policy (Marine Strategy Framework Directive) (OJ L 164, 25.6.2008, p. 19-40).  
151 Directive 2006/118/EC of the European Parliament  and of the Council of 12 December 2006 on the 
protection of groundwater against pollution and deterioration  (OJ L 372, 27.12.2006, p. 19–31).   
152 Commission Decision 2008/915/EC of 30 October 2008 establishing, pursuant to Directive 2000/60/EC 
of the European Parliament and of the Council, th e values of the Member State monitoring system 
classifications as a result of the intercalibration exercise  (OJ L 332, 10.12.2008, p. 20–44). 
153 Directive 2008/105/EC of the European Parliament and of the Council of 16 December 2008 on 
environmental quality standards in the field of water policy, amending and subsequently repealing 
Council Directives 82/176/EEC, 83/513/EEC, 84/156/EEC, 84/491/EEC, 86/280/EEC and amending 
Directive 2000/60/EC of the European Parliament  and of the Council  (OJ L 348, 24.12.2008, p. 84–97). 
EN 158   EN the equivalence on microbiological monitoring data allowing the use of alternat ive monitoring 
methods154 and a guidance document that provides advice to Member States for the 
establishment of the bathing wa ter profiles by the 2011 deadline. 
With a view to improving the impl ementation and enforcement of the Drinking and Bathing 
Water Directives , Member States have used, for the first time, the Water Information System 
for Europe electronic platform (WISE) to m eet their obligations to  report on drinking and 
bathing water quality in 2008.155 In the field of reporting, an important implementation step 
regarding the Urban Waste Water Directive  was the creation of the first ever EU-wide 
electronic data collection on waste water infrastr ucture and performance of treatment plants, 
adapted to the requirements and principles of WISE.  
As to the implementation of the  Nitrates Directive , the Nitrates committee made up of 
Commission and Member State representatives was convened three times in 2008 mainly to 
discuss derogations requested by Denmark, Th e Netherlands and the United Kingdom. These 
meetings resulted in the adoption of Decision  2008/664/EC allowing Denmark to apply higher 
amounts of livestock manure to land156 and  discussions over the Dutch and British derogation 
requests prepared the ground for further derogation Decisions in 2009. In addition, the Commission continued to assess th e implementation of the Nitrates Directive in the various 
Member States, in particular focusing on implementation in France, Greece, Poland, Latvia, Lithuania and the Netherlands. 
Management of complaints  and of infringements 
The 2008 enforcement work of the Commission in respect of the  Water Framework Directive  
mainly concerned its transposition in to the law of the Member States:  
• Non-communication of trans posing national measures:  Italy and Luxembourg were the 
two remaining Member States, which had still to notify national transposing measures. 
Once a new water Italian law had been adopt ed, the Commission was able to close the 
Case it had initiated against Italy which had led to a Court ruling (C-85/05). Luxembourg 
adopted and published the missing domestic im plementing legislation in December 2008 
paving the way for the Commissi on to close this infringement  case. The Court of Justice 
had ruled against Luxembourg on th is matter in Case C-32/05.  
• Non-conformity of national legislation: The Commission started in 2008 to examine the 
replies of Denmark, Ireland, Sweden, Germany and the United Kingdom to the letters of 
formal notice that had been addressed to th em in 2007 for failure to transpose correctly 
and completely the Water Framework Directive. The Commission opened new cases and sent letters of formal notice to Slovenia a nd Hungary in January 2008, Finland in February 
2008, France in April 2008, Greece, Malta, Poland in June 2008, Estonia in September 2008, the Czech Republic, Latvia, Slovakia in October 2008 and to Lithuania in November 2008 for their incomplete and inco rrect transposition of the Directive.  
                                                
 
154 Commission Decision 2009/64/EC of 21 January 2009 specifying, pursuant to Directive 2006/7/EC of 
the European Parliament and of the Council, ISO 17994:2004(E) as the standard on the equivalence of 
microbiological methods (OJ L23 of 27.1.2009). 
155 http://water.europa.eu/ 
156 Commission Decision 2008/664/EC of 8 August 2008 amending Decision 2005/294/EC concerning a 
request for derogation under point 2(b) of Annex III to and Article 9 of Council Directive 91/676/EEC 
concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ L 
217, 13.8.2008, p. 16–17). 
EN 159   EN Regarding the  Urban Waste Water Directive, the Commission's enforcement work has 
focused on ensuring full compliance with the Dir ective's obligation to designate all sensitive 
areas and ensure that more stringent treatment is provided to discharges from agglomerations 
into these areas by 1998. In 2008 the Commission sent France a Reasoned Opinion under Article 228 of the EC Treaty for its failure to  ensure compliance with the judgment of the 
Court of Justice in case C-280/02. As a result  of this judgment a number of additional 
sensitive areas were required to be desi gnated by France and over 100 agglomerations 
discharging into these areas need to be provide d with more stringent treatment. In the same 
year, the Commission decided to refer Ireland to the European Court of Justice for its failure 
to ensure compliance with these obligations, in  particular in ensuring that more stringent 
treatment was applied for numerous agglomerations discharging into designated sensitive areas.
157 The Commission also sent a Reasoned Opin ion to Spain under Article 226 of the EC 
Treaty for its failure designate additional sensitive areas and to ensure more stringent treatment was in place for a large number of agglomerations discharging into designated 
sensitive areas. For Italy, the infringement acti on launched to address its failure to designate a 
number of water bodies as sensitive was cl osed in 2008 when the Commission received 
confirmation of their designati on. Assessments were then launched to investigate the 
compliance with the more stringent treatment requirements for those agglomerations discharging into the sensitive areas which Italy has now designated. Furthermore, on 8 May 2008 the Court of Justice condem ned Portugal in Case C-233/07 for its failure to ensure 
compliance with Article 3 of th e Directive and the conditions set out in Comm ission Decision 
2001/720/EC granting Portugal a derogation regard ing urban waste water treatment for the 
agglomeration of the Estoril coast. 
In 2008 the Commission continued its enforcemen t work to ensure compliance with the end 
of year 2000 deadline for the collecting and sec ondary treatment obligati ons in the Directive 
for urban waste water discharges from large towns and cities. The Court of Justice gave 
judgment against Ireland for its failure to comply fully with these obligations on 11 
September 2008 in Case C-316/06. In 2008 the Co mmission followed up the judgment of the 
Court of Justice against Greece in Case C-440/06 fo r its failure to ensure full compliance with 
the collecting and treatment obligations for cert ain large towns and cities with a letter of 
formal notice under Article 228 of the EC Tr eaty. The Commission also  decided to send a 
Reasoned Opinion to Spain and France under Articl e 226 of the EC Treaty for their failure to 
fully comply with these obligations.  
Further enforcement action was taken in 2008 under this Directive with a letter of formal 
notice being issued to Spain unde r Article 228 of the EC Treaty fo r its failure to ensure full 
compliance with the judgment of  the Court of Justice in Ca se C-219/05. The Commission also 
addressed an additional Reasoned Opinion to  the United Kingdom under Article 226 of the 
EC Treaty for its failure to control excessive sp ills of untreated urban waste waters from its 
storm water overflows.  
For the Drinking Water Directive  letters of formal notice we re sent, in 2008, to Belgium, 
Latvia, Hungary and Slovenia on the ground that their national law did not fully and correctly transpose the Directive. The Commission was able  to close the cases that had been launched 
against Spain and Portugal in the light of both Member States' replies and initiatives. 
Furthermore, in 2008 the Commission sent under Article 228 of the EC Treaty a letter of 
formal notice to France and a Reasoned Opinio n to Portugal on the ground that both Member 
                                                
 
157 Now lodged in the Court as case C-95/09 
EN 160   EN States had failed to take all the measures necessary to fully implement Court rulings C-
147/2007 and C-251/03 respectively of the violati on of the "old" Drinking Water Directive 
(80/778/EEC).158 
Concerning the new Bathing Water Directive , the Commission's enforcement work focused 
on the notification by Member States of the national measures adop ted to transpose the 
Directive and on the communication of the first national lists of bathin g waters, which were 
due before the start of the 2008 bathing season: 
• Non-communication of trans posing national measures:  Whereas Member States had to 
transpose the new Bathing Water Directive and notify these transposing measures to the 
Commission by 24 March 2008 at the latest, letters of fo rmal notice were addressed in 
July 2008 to 21 Member States, namely Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, Estonia, Finland, Fran ce, Germany, Greece, Hungary, Lithuania, 
Luxembourg, the Netherlands, Poland, Portugal, Romania, Slovakia, Sweden and the United Kingdom for their failure to do so. This proved successful as many of these 
Member States transposed and notified thei r domestic implementing legislation by the end 
of 2008. 
• Bad implementation:  After reminding Member States of their obligation to publish and 
communicate, before the start of the bathing seas on, national lists of bathing waters, the 
Commission followed this up by issuing letters of formal notice to Italy, Luxembourg, the 
Netherlands and the United Kingdom in September 2008. The Commission is now 
expected to close these cases as the five non-compliant Member States subsequently 
communicated their domestic lists by the end of 2008.  
As to the  Nitrates Directive,  following the designation of additional “vulnerable zones”, the 
Commission decided in 2008 to cl ose both cases which had been  initiated ag ainst Portugal 
and Italy. In December 2008 the Commission decide d to refer Luxembourg to the Court, now 
Case C-526/08 for having in place a non-complia nt nitrate action programme. In 2008 the 
Commission services held several meetings wi th the Spanish and United Kingdom authorities 
to ensure the adequate amendment of thei r nitrate action programmes and enabling the 
Commission to prepare these cases  for possible closure in 2009.  
7.4.2.  Evaluation based on the current situation 
Emission-oriented legislation, such as the Ur ban Waste Water and Nitr ates Directives, has 
achieved great progress in protecting water qualit y. However, considerable  challenges remain. 
These include addressing issues of water s carcity, droughts and floods, ensuring that waste 
water originating from small towns is properly  collected and treated and bringing about the 
reduction of priority substances in surface wa ters. These challenges are now being addressed 
by a new EU legal water framework whose scope  has both expanded in recent years, for 
example, with the adoption of the new Dir ective on flood risks and has at the same time 
resulted in the streamlining of EU water law w ith the repeal of Directives adopted in the 
1970s and 1980s. The improvement of water qual ity in Europe will depend largely on the 
state of transposition into the law of the Member  States of this new EU water legal framework 
and on its full and timely implementation.  
                                                
 
158 Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human 
consumption (OJ L 229, 30.8.1980, p.11). Directive 80/778//EEC was repealed and replaced by 
Directive 98/83/EC on 25 December 2003. 
EN 161   EN The Common Implementation Strategy, an info rmal process set up in 2001 by Member States, 
accession countries and the Commission under the Wa ter Framework Directive, has delivered 
extensive guidance to promote the implementati on of this Directive. Most Member States 
have met the first implementation deadlines, including, the duty to de signate and identify 
competent authorities by June 2004, the requ irement to carry out the environmental and 
economic analysis of water uses in river basi n districts by March 2005 and the establishment 
of monitoring programmes by March 2007. On the other hand, the proper implementation of 
the Directive may well be affected, inter alia , by its incomplete and incorrect transposition by 
a number of Member States into their national legal systems and by the absence of exhaustive 
national methods for assessing the ecologi cal status of surface water bodies.  
Water quality has improved following EU15 Me mber States' encouraging progress in 
implementing the Urban Waste Water Directive.  Yet, there are still many agglomerations, for 
instance, in Belgium, France, Italy and Spai n that lack complete waste water collecting 
systems and treatment facilities. As to the EU12 Member States, the implementation of the 
Directive is characterized by tr ansitional periods foreseen in the Accession Treaties regarding 
the building of the necessary waste water infrast ructure and by the fact that the EU has made 
financial support available. 
Concerning both the  Drinking and the  Bathing Water Directives , assessment surveys show a 
real improvement in terms of  meeting environmental quality standards even if further 
progress still needs to be made. The preserva tion, enhancement and restoration of drinking 
and bathing water quality will depend upon the correct and full transposition and implementation of both Directives, but also on the delivery of the objectives in the Water 
Framework Directive, Urban Waste Water Directive and Nitrates Directive.  
As to the  Nitrates Directive,  significant progress has been made  in the recent years, including 
in 2008, regarding the designation of "vulne rable zones" and the elaboration and 
implementation of monitoring programmes. Ho wever, further improvements are clearly 
needed, in particular, with regard to the quality  of action programmes as nitrate concentrations 
where there are still major concerns in  some intensively farmed areas.  
7.4.3.  Evaluation results 
7.4.3.1.  Priorities 
As regards reporting, the Commission will continue  to develop together with the European 
Environmental Agency the Water Information Sy stem for Europe (WISE) in 2009, as a single 
platform for water information and reporting wh ich should reduce the overall administrative 
burden involved in reporting. 
The Commission will in 2009, verify whether Member States would have notified by 16 
January 2009 at the latest na tional measures transposing th e new Groundwater Directive and 
launch legal actions where Member States fail to meet this deadline.  
As to the implementation of EU water law,  the Commission will closely monitor the 
publication by Member States of  their final RBMP and programmes of measures due under 
the Water Framework Directive in December 2009. In this respect, the Commission will 
continue to make use of the Common Implemen tation Strategy as an informal platform to 
foster better implementation and to exchange  good practice. Regarding the Drinking Water 
Directive, the Commission will consider draf ting, in 2009, a legislative proposal aimed at 
EN 162   EN revising the Directive. The Comm ission will also assess Member  States' data on drinking 
water quality for 2005-2007 and compile an EU-wide synthesis report. 
7.4.3.2.  Planned action (2009 and beyond) 
Given that the preservation, impr ovement and restoration of wate r quality is so closely linked 
to the Water Framework Directive , apart from dealing with existing transposition-related 
cases, the Commission will focus on ensuring Me mber States fully meet their obligations, 
including in particular the adoption of appropriate RBMP a nd programmes of measures for 
each river basin district and the development of national methods for assessing the ecological 
status of surface water bodies. 
The Commission's work regarding the implementation of the Urban Waste Water, the 
Drinking and the Bathing Directives will be based on a twin-track approach. On the one 
hand, it will continue to promote the exchange  of information, experience and cooperation at 
an informal level with Member States and st akeholders. On the other hand, the Commission 
will draw up and publish implem entation reports, including a report on bathing water quality 
in 2009, the 5th Commission report on the implemen tation of the Urban Waste Water 
Directive and an EU-wide synt hesis report on drinking wa ter quality. In addition, the 
Commission will launch, if necessary, appropria te legal enforcement action against Member 
States that fail to comply with the ob ligations set out in these Directives.  
The Nitrates Directive:  The Commission's work to ensure compliant implementation will 
continue in 2009 on the basis of detailed assessm ents of the information provided by Member 
States in their 4-year implementation reports and via bilateral contact s. In particular, the 
Commission will finalise in 2009 the examination of the national reports on the 2004-2007 period with the aim of publishing a summary report in 2010. The assessment will focus on the 
main obligations of the Nitrates Directive, namely on water monitoring, the designation of 
"vulnerable zones" and the draw ing up and updating of nitrates action programmes. It will 
then need to be decided whether these assessmen ts need to be followed up with infringement 
action. The Commission has also planned to hol d four Nitrates Committee meetings in 2009 
to proceed with its regulatory work on Memb er States' derogation requests and to give 
Member States the opportunity to ex change information on implementation. 
The Commission will also focus on the tran sposition and implementation of the following 
new EU water Directives: 
- The Flood Directive , which requires Member States  to assess the flood risks of 
watercourses and coastlines, to map the flood exte nt as well as assets  and humans being at 
risk and to take adequate and coordinated measures to reduce flood risk. The transposition 
deadline for this Directive is November 2009 and the Commission will need to assess 
whether Member States have notified national transposing m easures on time and if those 
measures correctly and fully transpose the Directive.  
- The Marine Strategy Framework Directive  establishes a strategic framework for the 
protection of marine waters in the EU a nd requires Member States to achieve “good 
environmental status” for all marine waters by 2020 on the basis of an  initial assessment 
of marine water quality by 2012 and th e implementation by 2015 of programs of 
measures. The  Commission's enforcement priorities will focus on these deadlines with the 
first step being to assess whether Member States have notified national transposing 
measures and designated competent authorities by the 15 July 2010 deadline. The Commission will then need to assess whether those measures will ensure correct and full transposition of the Directive. The Commissi on will also need to adopt a Decision by mid-
EN 163   EN 2010 fixing criteria and met hodological standards for determining "good environmental 
status".  
- The new Bathing Waters Directive  was required to be trans posed into national law by 24 
March 2008. The Commission will need to verify  whether the transposition is both correct 
and complete and whether the Directive is  appropriately implemented, including the 
Member States' duty to annually de signate and notify bathing waters.  
- In view of the implementation and achievement by 2015 of the groundwater pollution-
related environmental objective set in the Water Framework Directive, the new Groundwater Directive  establishes criteria for the assessment of "good groundwater 
chemical status" and for the identification and reversal of significant and sustained upward 
trends in pollutant concentrations. The ne w Groundwater Directive is required to be 
transposed into national law by 16 January 2009  at the latest. Therefore, the Commission 
shall need to check whether Member States  have met this deadline and whether the 
measures adopted ensure the correct and co mplete transposition of the Directive.  
- In order to allow Member States to meet the 2015 surface water pollution-related 
environmental objective set in the Water Framework Directive, Directive 2008/105/EC  
was adopted on 16 December 2008 setting EQS for "priority substances" and certain other 
pollutants to be met to achieve "good ecol ogical status" for surface water bodies. Member 
States are required to transpose Directive 2008/105/EC by 13 July 2010 at the latest. The 
Commission will need to verify whether Memb er States would have indeed adopted and 
notified all national transposing measures by this deadline and whether those domestic 
measures correctly and fully transpose Directive 2008/105/EC. Any non compliance may 
lead to the opening of infringement action.  
7.4.4.  Sector summary 
Substantial progress regarding the implementati on of EU water law has been observed in the 
past decade as a result of increased awaren ess among decision-makers of the critical 
importance of meeting water quality standards to  preserve water resource and the associated 
natural environment and to protect human healt h. Better implementation has often been driven 
by informal and formal cooperation between Member States, industries, non-governmental 
organisations, consumers and the Commission as well as by infringement procedures. 
However, more efforts need to be made to en sure full compliance with EU water Directives. 
In respect of the Nitrates Directive, the Comm ission has noted that several regions within the 
EU show worrying water quality trends for whic h reinforced action programmes will need to 
be developed. With regard to the Urban Waste Water Directive, Member States must ensure 
that it is fully applied, including in smaller towns. The implementation of EU water legislation and the enhancement, preservation a nd restoration of water quality will greatly 
depend on Member States meeting their obligati on to take all required measures to guarantee 
the achievement by 2015 of the environmental objectives of "good chem ical and ecological 
status" for surface water bodies and of "good chemical and quantitative status" for groundwaters set in the Water Framework Direc tive. The Commission will continue to focus 
on the proper transposition of EU water law, including of the new Flo ods, Marine Strategy 
and Bathing Water Directives and their impl ementation. The Commission will continue its 
efforts to ensure that Member States fulfil their obligation under thes e Directives and will 
assist them, when necessary, via form al and informal cooperation channels. 
EN 164   EN 7.5. Air quality 
7.5.1.  Current position 
7.5.1.1.  General introduction  
Ambient air quality 
The new Directive 2008/50/EC of the European  Parliament and of the Council of 21 May 
2008 on ambient air quality and clean er air for Europe is the ke y legal instrument in this 
sector159. The Directive entered in to force on 11 June 2008 an d merges four Directives160 and 
one Council Decision161 into a singe air quality instrument. It introduces new objectives for 
fine particles (PM 2.5) but does not change existing air qua lity standards. Available evidence 
points to serious problems  in complying with the air quality  limit values in many European air 
quality zones but the new Directive does, how ever, give under certain conditions Member 
States greater flexibility in meeting some of  these standards in areas where they have 
difficulty complying. 
Under the new Directive 2008/50/EC  Member States have the possibility to notify an 
exemption from the application of the limit values for PM 10 (and to postpone the limit values 
for nitrogen dioxide (NO 2) which enter into effect in 2010)  provided that certain conditions 
are satisfied. The Commission has nine months fr om the submission of a notification to assess 
it and to decide whether to raise objections or  not. If no objections are raised, the notification 
will be tacitly approved at the expiry of the nine months assessment period. 
Air emissions 
There are several legal instruments which affect  the emissions of certain air pollutants at 
source. These include Directive 98/70/EC relating to the qualit y of petrol and diesel fuels162, 
Directive 1999/32/EC relating to a reduction in the sulphur content of  certain liquid fuels163 
and the Paints Directive 2004/42/EC  on the level of solvents ( volatile organic compounds) in 
paints, varnishes and refinishing products.  
Environmental noise 
The Noise Directive164 lays down a common approach to avoiding, preventing or reducing on 
a prioritised basis the harmful effects of expos ure to environmental noise. It requires the 
                                                 
159 . OJ L 152, 11.6.2008, p. 1–44.  
160 The four directives merged into the new directiv e are: Council Directive 96 /62/EC of 27 September 
1996 on ambient air quality assessment and management ; Council Directive 1999/30/EC of 22 April 
1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate 
matter and lead in ambient air ; Directive 2000/69/EC of the European Parliament and of the Council 
relating to limit values for benzene and carbon monoxide in ambient air; and Directive 2002/3/EC of 
the European Parliament and of the Council relating to ozone in ambient air 
161 Council Decision 97/101/EC establishing a reciprocal exchange of information and data from networks 
and individual stations measuring ambien t air pollution within the Member States. 
162 Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the 
quality of petrol and diesel fuels and amending Council Directive 93/12/EEC ( OJ L 350, 28.12.1998, p. 
58–68).  
163 Council Directive 1999/32/EC of 26 April 1999 relating to a reduction int he sulphur content of certain 
liquid fuels and amending Directive 93/12/EEC ( OJ L 121, 11.5.1999, p. 13–18).  
164 Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relating to the 
assessment and management of environmental noise  (OJ L 189, 18.7.2002, p. 12–25).  
EN 165   EN assessment and mapping of ambient noise in large agglomerations and in the vicinity of major 
roads, railways and airports. 
7.5.1.2.  Report of work done in 2008 
Ambient air quality 
For 2006, around 400 zones in 23 Member States we re reported being in non-compliance with 
the PM 10 limit values. The dilemma has been how  to treat these breaches of existing 
Community law whilst recognising the explicit possi bility for Member States to seek a time 
extension for compliance. The Commission's policy has been to launch infringement 
proceedings in respect of those excesses which have not been the subject of a notification 
from the Member States. 
In 2008, the Commission asked 23 Member States that had repor ted excesses of the daily and 
annual PM 10 air quality limit values for 2005 and 2006 to provide information whether they 
intended to notify an exemption from the obligation to apply the limit values for PM 10 
pursuant to Article 22  of Directive 2008/50/EC. Member St ates were warned that if a 
notification was not submitted prior to 31 Octo ber 2008 or compliance with the limit values 
not achieved, infringement proceedings woul d be launched. By the end of the 2008, 11 
Member States had submitted notifications. Bu lgaria and Romania reported exceedances in 
2007 of the PM 10 limit values in their first air quali ty reports submitted in September 2008. 
They were subsequently warned that if a notification of an exemption from the limit values is not submitted prior to 31 Ma rch 2009 then infringements proceedings may follow unless 
compliance has been achieved. So far the Comm ission has received notifications 16 Member 
States and launched infringement proceedings  against Cyprus, Estonia, Germany, Italy, 
Poland, Portugal, Slovenia, Spain, Sweden and UK
 up until March 2009.  
In 2008, the Commission also contin ued to pursue infringement pr ocedures it had launched in 
previous years against several Member States (Spain, France, Italy a nd Slovenia) that have 
shown widespread exceedances  of sulphur-dioxide (SO 2) limit values that have been in force 
since 1 January 2005. New exceedances were discovered in 2007 and reported to the 
Commission in 2008 as part of th e formal reporting requirements. These excesses may also be 
the subject of further infringement proceedings in due course. 
Judgments of the Court of Justice in 2008 
The Court delivered a preliminary ruling on 25  July 2008 (Case C-2 37/07) in relation to 
Directive 96/62/EC on ambient air quality  assessment and management whereby it has 
clarified that where there is a risk that the lim it values or alert thresholds may be exceeded, 
persons directly concerned must be in a positio n to require the competent national authorities 
to draw up an action plan, even though, under na tional law, those persons may have other 
courses of action available to them for requiring those authorities to take measures to combat 
atmospheric pollution. 
Air emissions 
In 2008, the Member States reported the first re sults of the implementation of the Paints 
Directive and the results of their monitoring programmes regarding the permitted levels of 
solvents in various paint products. 
Environmental noise 
EN 166   EN Under the Noise Directive Member States had to send to the Commission by 30 December 
2007 summary information about their strategic noi se maps that had to be drawn up by 30 
June 2007. Strategic noise maps are required to be drawn up in order to monitor the extent of 
noise pollution,  to inform and consult the public about noi se exposure, its effects, and the 
measures considered necessary to address noise.  
In 2008, most of the Member States reported the Commission the information required. The 
Commission started last y ear and is currently finalizing its assessment of the quality of these 
noise maps in relation to the requirements of the Directive (with the assistance of the European Environment Agency) and will instigate horizontal infringement proceedings, if appropriate, in respect of non-compliant maps or where no map has been reported. 
7.5.2.  Evaluation based on the current situation  
Ambient air quality 
There remain widespread non-compliance with air quality limit values and particularly those 
for PM
10 which is probably the pollutant of most concern given its adverse impacts on health. 
This is due in part to a lack of preparedness by the Member States to undertake the necessary 
assessments of air quality and to put into place the necessary plans and actions to improve air 
quality in good time. The ongoing "time extension"  exercise should improve the capacity of 
the Member State authorities to prepare plans and programmes as well as the introduction of 
new measures to tackle air pollutant emissions at source. Community measures such as those 
recently adopted on light and heavy duty vehicl es will also help. In addition, the recent 
referral to the ECJ in the Janecek  case (Case C-237/07) should also lead to improvements as it 
clarifies that individuals have the right to request the preparat ion of air quality plans before 
national courts. 
Air emissions 
There are no serious issues associated with th e implementation of the fuel quality directive 
except for the occasional failure to report on fuel  quality in a timely fashion. The Sulphur in 
liquid fuels directive establishes maximum perm itted levels of sulphur in a range of fuels 
including heating oil, heavy fuel  oil and marine fuels. There is sufficient information in the 
public domain that there are regular non-compliances  in relation to marine fuels. A perceived 
problem of the directive is that the obligation fa lls to the end user rather than on those placing 
the relevant fuel on the market. The problem is  exacerbated by the f act that there is an 
inconsistency in approach to fuel monitoring amongst the Member States (often with very 
limited information) which derives from the fact that the Directive's pr ovisions are unclear.  
The reports submitted by the Member States last year on the implementation of the Paints 
Directive and the results of their monitoring programmes regarding the permitted levels of 
solvents in various paint products have show n that there are varying approaches in the 
Member States with widely varying efforts regarding the number of samples tested. In 
addition, there have been numerous requests for clarification of the Directive's provisions 
particularly regarding the scope  of the products it covers and the relationship with the 
Solvents Directive 1999/13/EC gove rning the use of solvents at  industrial inst allation. These 
uncertainties persist despite guidance having been prepared  by the Commission services. 
Environmental noise 
EN 167   EN The problems thus far encountered  in relation to the implemen tation of the Noise Directive 
are three-fold. First, Member States have been  late in preparing the necessary maps although 
this is probably due to the fact that this is the first attempt at undertaking a technically 
challenging task. The second prob lem is that there are no harmonised assessment methods and 
so Member States have used  national methods thus making a wider geographical assessment 
or comparison more difficult. Third, the re porting requirements are unclear such that non-
standardised reporting of maps  has occurred which in some cases makes the use of the 
reported information very difficult. 
7.5.3.  Evaluation results 
7.5.3.1.  Priorities  
Ambient air quality 
In the coming years, the Commission will con tinue to monitor closely the situation with 
regard to compliance with air quality limit values  in all Member States. It will continue to 
follow its "horizontal approach", which allows air pollution problems to be addressed in a far 
higher number of places than would have been  possible if it had only focused on individual 
cities or regions.  
Air emissions 
The first priority is to improve the complian ce with the permitted sulphur levels for those 
liquid fuels covered by Direct ive 1999/32/EC. Secondly, a prior ity will be to improve the 
monitoring and reporting under the both the paints  Directive and the sul phur content of liquid 
fuels Directive. Finally, the definitions and scope of the Paints Directive could usefully be clarified. 
Environmental noise 
The first priority is to improve the consistency in the Member States' assessments of 
environmental noise and the usefulness of the reported information. A second priority is to 
improve the implementation of the Directiv e by the Member States by providing greater 
clarity and guidance. 
7.5.3.2.  Planned action (2009 and beyond)  
Ambient air quality 
As regards excessive SO
2, the Commission will continue to pursue the legal enforcement 
action it has already la unched against several Member States.  
As for PM 10, the Commission will assess closely whethe r time extension requests expected to 
be submitted by most of the Member States meet the relevant criteria. Infringement 
procedures are to be envisaged against Member States in breach of the limit values which do 
not apply for a time extension or do not meet  the conditions for obtaining such extension.  
In addition, legal enforcement procedures will be pursued to ensure that Member States fulfil 
their reporting obliga tions under the air quality legislation.  
Air emissions 
EN 168   EN There are reviews of both direc tives underway with th e intention to bring forward amending 
legislation, if appropriate, in 2010 and 2011 respectively. 
Environmental noise 
The priorities for further actio n will be to comple te the ongoing review of the legislation 
including its implementation. In addition, the Co mmission will consider, in the context of the 
review and the need for harmonised assessmen t methods and streamlined electronic reporting 
procedures. Finally, where maps or action plans have not been prepared  or reported or are 
deficient in relation to the requirements of the Directive the Commission may pursue infringement proceedings. 
7.5.4.  Sector summary 
In 2005 a set of legally binding EU air quality limit values became applicable, including limit 
values for particulate matter PM
10, pollutant with very important  adverse impact s on health. A 
widespread non-compliance with PM 10 limit values remains, partly due to challenging and 
complex nature of this pollutant and the lo wer and delayed impact of certain community 
measures. But the main reasons are serious delays  in the implementation of the directives in a 
large number of Member States, mainly as regards the drawing up and implementation of the necessary plans to ensure that air quality is improved in good time. The capacity and awareness of the Member State authorities of the need to tackle air pollution at the source and to prepare plans and programmes should be in creased through the pr ocedure and conditions 
laid down in the new Directiv e 2008/50/EC on ambient air quality and cleaner air for Europe 
for extending the time required for achieving compliance with the limit values for PM
10, NO 2 
and benzene, joined with coherent and timely enforcement where appropriate.  
In the coming years, the Commission will continue  to monitor closely the air quality situation 
in order to ensure long term and sustainable co mpliance with the limit values in all Member 
States. In particular, it will be a priority task to assess further time extension notifications as well as to follow-up on the decisions adopted  by the Commission. In case objections are 
raised to the applicati on of a time extension, it will be nece ssary to pursue the Member States 
concerned through infringement proceedings. A furt her priority will be to ensure a timely and 
effective implementation of Di rective 2008/50/EC. Dissemination of information to the public 
and cooperation between the Member States and the Commission in order to develop 
appropriate policies should continue.
 
7.6. Climate change 
7.6.1.  Current position 
7.6.1.1.  General introduction 
The most important cross-cutting measures in this domain are the Emissions Trading 
Directive, 2003/87/EC165, and Decisions 280/2004/EC166 and 2005/166/EC167. With the 
                                                 
165 Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a 
scheme for greenhouse gas emission allowance trading within the Community and amending Council 
Directive 96/61/EC (OJ L 275, 25.10.2003, p. 32–46).  
166 Decision 280/2004/EC of the European Parliament and of the Council of 11 February 2004 concerning 
a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto 
Protocol (OJ L 49, 19.2.2004, p. 1–8).  
EN 169   EN adoption of the Emissions Trading Directive, the EU has established a scheme for greenhouse 
gas emission allowance trading within the Community (EU ETS). This is a market-based instrument aimed at gradually reducing emissions  in selected sectors. It should help the 
Community and the Member Stat es to meet their Kyoto Protocol commitments to reduce 
greenhouse gas emissions in a cost-efficien t way. With the adoption of Decisions 
280/2004/EC and 2005/166/EC the EU established a mechanism for mon itoring and reporting 
greenhouse gas emissions. This makes it possibl e to evaluate more accurately and more 
regularly the progress made in reducing emissions under the United Nations Framework 
Convention on Climate Change ( UNFCCC) and the Kyoto Protocol.  
7.6.1.2.  Report of work done in 2008 
Policy
  
EU ETS Review/Implementation  
On 23 January 2008, the Commission adopted its proposal for an improved and extended EU 
emissions trading scheme (EU ETS). This propos al was the result of extensive stakeholder 
consultations during the first tr ading period (2005-2007) of th e EU ETS. The review showed 
positive elements, such as the fact that a real  market for trading in carbon allowances had 
evolved, which due to its size – the EU ETS is the largest emissions trading scheme in the world - offered new opportunities to implement CO
2 abatement measures in a cost-effective 
manner across the EU.  
However, the review also identified a number of specific problems: 
• Emissions trading can only exploit its environmen tal strength and justif ication, if there is 
scarcity on the allowance market. However, th e lack of verified emissions data when 
setting up the National Allocation Plans (NAP s) for the first trading period (2005-2007) 
enabled Member States to support their ow n industry by relying on over-optimistic 
projections justifying the issuan ce of more allowances than was justified to ensure the 
necessary scarcity on the market.  
• Member States had different levels of ambiti on for the emission reductions to be asked of 
the sectors participating in the EU ETS, and consequently different Member States set 
different levels of allocation for the same sector. They also applied widely differing 
allocation methods.  
• The Commission's approval of NAPs turned ou t to be a long-lasting, cumbersome and 
complex process.  
• Some sectors were able to pa ss through the market value of the allowances in their product 
prices to their customers even though they got them for free. 
With a view to addressing these issues, the Commission proposed a fully harmonised 
approach including an EU-wide and annually shrinking cap on allowances - to replace the 
                                                                                                                                                         
167 Commission Decision 2005/166/EC of 10 February 2005 laying down rules implementing Decision No 
280/2004/EC of the European Parliament and of the Council concerning a mechanism for monitoring 
Community greenhouse gas emissions and for implementing the Kyoto Protocol (OJ L 55, 1.3.2005, p. 
57–91).  
EN 170   EN prevailing bottom-up approach based on NAPs - leading to an emission reduction of 21% by 
2020 as compared to 2005 levels. The Commissi on also proposed to phase-in auctioning over 
a period of time as the prin cipal allocation method for all operators, and provided for 
harmonised rules for the transitional free allo cation. These elements do not only guarantee 
that the required emission reductions are achi eved, they also increase the certainty and 
predictability in the system, thereby fo stering investments to reduce emissions.  
EU ETS/Hydroelectric power production projects  
According to the ETS Directive as amende d by the Directive 2004/101/EC, “… Member 
States may allow operators to use CERs and ER Us from project activities in the Community 
scheme” (Article 11a (1)), with the exception of  credits from land use, land use change and 
forestry activities as well as nuc lear projects (Article 11a (3)).  
“In the case of hydroelectric pow er production project activities with  a generating capacity 
exceeding 20 MW, Member States shall, when a pproving such project activities, ensure that 
relevant international criteria and guidelin es, including those contained in the World 
Commission on Dams November 2000 Report “D ams and Development – A New Framework 
for Decision-Making”, will be respected during the development of such project 
activities.”(Article 11b (6)) 
The interpretation of this requirement varied  among Member States and so has led to the 
fragmentation of the carbon market a nd uncertainty for its participants.  
In the course of 2008, Member St ates have agreed to  accept in principl e common guidelines 
for the approval of large hydropower project ac tivities, which may also constitute guidance 
for Member States on which carbon cr edits to accept for compliance. 
The document establishes a common understa nding of the meaning of Article 11b (6) 
regarding its scope and the mean s whereby project proponents can establish that their projects 
meet the relevant requirements. It is accomp anied by a template enabling project proponents 
to prepare Article 11b (6) compliance reports , which are then verified by a designated 
operational entity (DOE) or another veri fier appointed by a Member State.  
The Member States' agreement to abide by these guidelines is voluntary. The final decision 
regarding the acceptance of a project as meeti ng the aforementioned requirements remains the 
responsibility of the Member Stat e approving the project activity.  
By 29 January 2009, most Member States in prin ciple confirmed that they will publish the 
guidelines and accompanying template by 1 April 2009 and implement these by 1 July 2009.  
Member States will also continue coope ration on voluntary harmonisation of the 
implementation of Article 11b (6), exchanging experience and views on the practical aspects 
of the use of the guidelines and template.  
EU ETS NAP Implementation  
During the year 2008, all Member States notifie d the revision of their NAPs on the basis of 
the Commission's decisions setting out re vision requirements as  a condition for NAP 
approval. In addition, Member Stat es also notified their installa tion-level allocation decisions.  
EU ETS Registry  
EN 171   EN The two main tasks for the EU ETS Re gistries in 2008 were the following:  
• The linking of the Community Independent Tran saction Log (CITL) and all Member State 
registries to the UNFCCC International Tran saction Log (ITL). This was a complex IT 
operation that required extensiv e planning and co-ordination, and was eventually carried 
out successfully and smoothly and wa s fully operational in October 2008. 
• The amendment of the Registries Regulatio n to allow transactions with aviation 
allowances through an IT process that does not  require the use of the UNFCCC ITL. This 
amendment was successfully adopted on 11 October 2008. 
In addition, the revised EU ETS Directive ag reed in December of 2008 decided that from 
2012, all allowances will be held  in the Community Registry. Th is decision will transfer the 
bulk of Member State-level ETS -related IT-operations to th e Commission, a process which 
will require a significant expansion of the Re gistry related IT-capacities of the Commission. 
EU ETS/Monitoring, Reporting and Verification  
Monitoring and reporting of emissions is currently implemented by the Monitoring and 
Reporting Guidelines (MRG)168 established in accordance with Article 14 of the current EU 
ETS Directive. Consistent implementation of the MRG is required in order to ensure that “a 
ton of carbon emissions is a ton”, no matter where and by whom it has been emitted within 
the EU. The MRG makes it possible to provide  for a co-ordinated EU approach to 
compliance. 
Thus, in 2008, compliance with the entire Mo nitoring, Reporting and Verification (MR&V) 
cycle became more important. With this in  mind, the Commission chaired and co-organised 
with some Member States a two-day confer ence on EU ETS compliance on 10-11 September 
2008. The Conference laid down the foundations of the EU ETS Compliance Forum that 
should start its activities in 2009. Moreover, in 2008, a comprehe nsive evaluation project was 
carried out in the 27 Member States with re spect to their implementation of the MR&V 
compliance cycle.  
An amendment and a new annex to the MRG was al so adopted to take ac count of the addition 
of a new gas (N 2O) to the system, following a request for opt-in from The Netherlands. A 
similar process was launched for a new sector , namely aviation and a new activity, namely 
carbon capture and storage (CCS).  
The revised EU ETS Directive agreed in D ecember of 2008, provided for a renewed legal 
basis for Monitoring and Reporting in Article 14 as well as an extension of the scope of 
Article 15 regarding Verification to include th e Accreditation of verifi ers. Moreover, both 
Articles provide a legal basis for moving from the present MRG to an MR&V system based 
on two different Regulations, one for M onitoring and Reporting and the other for 
Accreditation and Verification. This development would allow for the implementation of a 
more harmonised approach across the EU  in the third trading period(2013-2020). 
                                                 
168 EU ETS Monitoring and Reporting Guidelines 2007/589/EC. Commission Decision of 18 July 2007 
establishing guidelines for the monitoring and reporting of greenhouse gas emissions pursuant to 
Directive 2003/87/EC of the European Parliament  and of the Council 
EN 172   EN Finally in 2008, a polic y initiative was established on ETS  Accreditation and Verification 
laying down the basis for developing a possible guidance note for the second trading period 
(2008-2012). This initiative will prepare the main elements of  the Regulation for the third 
trading period. The project was finalised in November 2008.  
Implementation and legal enforcement  
Cases related to the ETS Direct ive: National Allocation Plans  
The individual NAPs adopted by Member States fix the total number of emission allowances 
and set out the methodologies to allocate them to individual in stallations covered by the EU 
ETS. NAPs for period 2008-2012 are thus an important element in the Member States' 
strategies for achieving their relevant emi ssion reduction targets unde r the Kyoto Protocol. 
It should be noted that the Commission clos ed in 2007 all the cases it had launched in 2006 
against those Member States, which had fa iled, to submit by 30 June 2006 their national 
allocation plans (“NAPs”) for the second tr ading period (2008-2012) of the EU ETS as 
required by the Emissions Trading Directive.  
In 2007 several MS opposed the Commission d ecision on their national allocation plan. In 
essence they claim that the upper limit set by  the Commission on the total quantity of 
allowances that they may allocate was too low and that the Commission has exceeded the limits of its discretion when  assessing the proposed NAPs by using its own methodology.  
Consequently, 9 Member States have brought a nnulment actions on the basis of Article 230 
EC before the European Court of Justice (pe nding cases). Early 2009 the following cases were 
pending before the Court of First Instan ce (CFI): T-183/07 Poland, T-221/07 Hungary, T-
194/07 Czech Republic, T-369/07 Latvia, T-368/ 07 Lithuania, T-263/07 Estonia, T-499-
500/07 Bulgaria, T-483-484/07 Romania. The writte n part of these procedures is over. The 
Polish and Estonian hearings took place in February 2009. One case (T-32/07 Slovakia) was 
withdrawn at the beginning of 2008. 
Not only the Member States br ought actions, also companie s allegedly affected by the 
allocation of emission allowances did. The following cases initiated by companies against 
various Commission NAP decisions were found to be inadmissible by the CFI (T-130/06 
Drax, T-489/04 U.S. Steel Kosice, T-27/07 U. S. Steel Kosice, T-13/07 Cemex, T-28/07 Fels-
Werke, T-193/07 Gorazdze Cement, T-195-1 99/07 Lafarge Cement, T-203/07 Cemex, T-
208/07 BOT, T-241/07 Buzzi, T-28/07 Saint G obain, T-27/07 US Steel Kosice).  
Moreover, the European Court of  Justice (ECJ) upheld  the judgments of the CFI in T-28/07 
Saint Gobain as well as in T-27/07 US Steel Kosice in Cases C-503/07P – judgment delivered 
on 08 April 2008 - and C-6/08P – judgment de livered on 19 June 2008 - respectively.  
Two cases were initiated by Arcelor not against a Commission NAP decision like the 
previous cases but against the EU ETS Direct ive itself. One was a direct action (T-16/04 
Arcelor) brought before the CFI and the other was a preliminary ruling referred to the ECJ 
(Case C-127/07). In essence, both cases allege d that the EU ETS Directive breached the 
principle of equal treatment. In its judgment of 16 Decembe r 2008 in Case C-127/07, the ECJ 
found that the EU ETS Directive did not infringe the principle of equal treatment. In Case T-
16/04 Arcelor before the CFI, the Court was waiting for judgment of the ECJ in the preliminary ruling Case C-127/07 before deli vering its own judgment on the direct action. 
Proceedings are therefore still pending before the CFI in 2009. 
EN 173   EN Cases related to the ETS Directive: implementing measures  
As far as the Emissions Trading Directive is  concerned, following Commission enforcement 
action, all Member States have communicated their national implementing legislation. A 2008 
study on the implementation of the ETS Direct ive (as amended by Directive 2004/101/EC, the 
so-called Linking Directive) however revealed  shortcomings in most Member States.  
Reporting cases under Article 3 (1) and (2) of Decision 280/2004/EC  
Under Decisions 280/2004/EC and 2005/166/EC , Member States must provide the 
Commission with annual reports on their actu al emissions of greenhouse gases and twice-
yearly reports on domestic climate change po licies and measures and emission projections. 
Given that the Commission needs the informati on provided by the Member States for its own 
annual report to the UN Framework Convention on Climate Change and the Kyoto Protocol, 
it has constantly reminded the Member States of their reporting obli gations. As a result 
reporting continues to improve in terms of timing and content.  
In 2008, the Commission closed numerous infri ngement proceedings against Member States 
that had failed to submit 2007 annual and 2005 bi-annual reports as they provided the Commission the missing information. However, in the case of some Member States the 
Commission also had to send a second Reasoned opinion under Ar ticle 226 or refer the matter 
before the Court of Justice for the failure to completely fulfil the relevant reporting 
requirements. 
New cases were opened early 2009 against all the MS (except Austria, Sweden and Romania) 
as their 2008 annual reports on GHG emissions were  provided in time but did not cover all the 
information needed for the Commission to dr aft its own annual report to the UN Framework 
Convention on Climate Change.  
7.6.2.  Evaluation based on the current situation 
EU ETS Review/Implementation
 
The problems identified during the review of the EU ETS showed that improvements were 
needed to ensure that the EU ETS would do what it was set up to do, namely contribute 
significantly - and cost effectively - to th e necessary greenhouse gas emission reductions. 
Since almost all Member States were over-optimistic when determining their total quantity of allowances, the environmental effectiveness of the system was put in question – to the detriment of the overall efficiency of the sc heme and thus to the detriment of the overall 
economy of the EU by not reducing emissions at  least-cost. As, in addition, comparable 
sectors in different Member Stat es benefited from different leve ls of free allocation and were 
allocated based on different allocation rules, there were distortions of competition in the internal market.  
The delays associated with the process of  approving the NAPs drawn up by Member States 
led to an extended period of uncertainty in th e market with respect to the overall cap of the 
EU ETS which was built bottom-up. Such uncertainty hampered the proper functioning of the allowance market and the ability of companies to  decide on investments in  clean technologies.  
Companies in some sectors were able to pass on the market value of allowances in their 
product prices, although they had received th e allowances for free. This increased the 
operating profits for these companies. Alt hough the pass-through of opportunity costs is 
EN 174   EN rational from a business point of view, the wi ndfall profits it crea ted led to negative 
perceptions for the EU ETS. 
Further information on the evalua tion of options to address th e problems identified during the 
review of the EU ETS can be found in the imp act assessment that accompanied the 
Commission's proposal169.  
On the basis of the issues identified in the conformity studies on the implementation of the 
ETS Directive, the Commission decided end of  2008 to address these alleged shortcomings 
through an administrative letter to the Member States concerned, asking for clarification of 
the issues identified in the studies. These letters were issued early 2009.  
EU ETS/Hydroelectric power production projects  
The requirements set out in Article 11b (6) of  the amended ETS Directive do not apply to 
credits purchased by Member State governments.  This creates discrepancy in how project 
developers are treated, even though some Member States apply the same approval criteria to 
projects for government purchase programmes as  for projects destined for the EU ETS. 
Given these discrepancies in treatment, wh ich will continue un til the Article 11b (6) 
guidelines become operational; there remain possi bilities for some projects to be evaluated 
more stringently than others depending on th e Member State concerned. This means that 
existing forum shopping by project developers ma y continue some time into the future.  
This is currently exacerbated  by the fact that whereas Member States are applying the 
requirements of Article 11b (6) to  the approval of project activit ies, a majority of Member 
States are reluctant to check subsequently ce rtified emission reductions (otherwise known as 
CERs) surrendered for compliance agai nst the approved pr oject criteria. 
EU ETS NAP Implementation  
The Commission duly assessed the NAP revisions for consistency with the requirements in 
the Commission's decisions and the national installation-level allocation decisions for 
consistency with the revised NAPs. On the basis of these assessments, the Commission 
allowed the Member State to issue ca rbon allowances to installations.  
The appeal by the Member States on the ground that the approach by sectors of the ETS 
Directive breached the principle of equal treatment was not gran ted. The cases brought before 
the CFI on the NAP’s do illustrate however th at whilst drafting community legislation 
sufficient attention should be paid to the prec ise role of the Commission, in particular its 
powers of assessment of the Member States input.  
EU ETS Registry  
Linking with the UNFCCC ITL was necessary b ecause credits under the UNFCCC flexibility 
mechanisms, such as CERs and emission reduc tion units (otherwise know as ERUs) could 
only be imported into the ETS th rough the link with the ITL. 
                                                 
169 http://ec.europa.eu/environment/climat/emission/pdf/com_2008_16_ia_en.pdf   
EN 175   EN The amendment of the Registries Regulation wa s necessary as international aviation is not 
covered by the Kyoto Protocol and thus, tradi ng in aviation allowances does not belong under 
the supervision of the ITL.  
The decision to hold all allowances in a Co mmunity Registry was n ecessary in order to 
simplify the Registry related IT-infrastructure,  thereby making it safer and cheaper for the EU 
as a whole, although costs will be concentrated in the Commission. 
EU ETS/Monitoring, Reporting and Verification  
Current practices of Member States and Co mpetent Authorities shows a wide range of 
different implementation and application of the MRG's requirements, for Monitoring and 
Reporting, with different appro aches persisting at national level. Varying Monitoring and 
Reporting requirements mean that some operato rs put more effort into Monitoring and 
Reporting than others, potentially leading to c oncerns over ‘fairness’ within the current 
system. Moreover, some Competent Authoritie s' monitoring and reporting systems are more 
efficient than others. For these reasons, there is scope for improvement of the level playing 
field across the EU in terms of Monitoring and Reporting so as to ensure the environmental 
integrity and the credibility of the current EU ETS.  
The EU ETS Directive and the MRG only regul ate some fundamental requirements and 
aspects of the Verification process. Details ar e left to Member States. Most, but not all 
Member States developed specific nati onal verification guidance often based on 
internationally acknowledged criteria. Quality ch ecks of verification reports are also carried 
out in many Member States, but not in all. A level playing field con cerning the quality of 
Verification needs to be built up.  
The same goes with respect to Community-wid e Accreditation of verifiers, where Member 
States show a very diverse picture with a wide range of standards. As a result of the described 
lack of binding guidance on Verifi cation and Accreditation in th e current EU ETS Directive a 
plurality of 27 national systems has evolved.  
Evaluation projects on behalf of the Commission and several Me mber States have identified a 
lack of transparency, as well as a lack of in formation on quality and consistency of MR&V, as 
the main challenges for the further devel opment of compliance within the EU ETS. 
Reporting under Article 3 (1) and (2) of  Decision 280/2004/EC  
Reminding the Member States of  their reporting obligations at meetings (working group 
level) and, where needed, through  a letter of formal  notice does seem to work as the 2009 
annual reports have improved in timeliness and completeness compared to those of 2007 and 
2008. This may be due to the increasing fam iliarity of the MS with their reporting 
requirements.  
7.6.3.  Evaluation results 
7.6.3.1.  Priorities 
EU ETS Review/Implementation  
The Commission's proposal on an improved and extended EU ETS was agreed by the Council 
and the European Parliament in a first re ading agreement in December 2008. It was a key 
EN 176   EN measure in the climate and energy package. Th ere were several reas ons why this complex 
package could be adopted in such a short time. First of all, the European Parliament and the 
Council agreed with the overa ll architecture of the Commission's proposal. Secondly, the 
elections to the European Parliament in J une 2009 meant that the adoption of the package 
would have been significantly delayed if not adopted in first readi ng. Thirdly, and perhaps 
most importantly, the ongoing negotiations on  a new international agreement on climate 
change are to conclude in Copenhagen in  December 2009. By adopting the climate and 
energy package, the EU gave new impetus to th e negotiations by showing that it is possible 
for 27 very different countries to agree ambitious and legally binding climate policies. As for the ETS specifically, the fact that the scheme  has been much improved and extended means 
that it now has a prominent position as a potential nucleus of the emerging global carbon 
market.  
The European Parliament and the Council did not question the proposed overall architecture 
of the EU ETS, the level of environmental am bition or the level of harmonisation. Thus, the 
problems identified during the review of th e EU ETS have been largely addressed.  
The revised Directive still needs to be forma lly adopted by the Council of Ministers and is 
therefore expected to enter into force in th e spring of 2009. The change s to the EU ETS will 
take effect as from the beginning of the third trading period (2013-2020) on 1 January 2013, 
except for the inclusion of the aviation sector which will take effect as from 1 January 2012.  
The Commission will continue it s work preparing the numerous implementing measures that 
the revised Directive provides for (15 comitolo gy measures, 7 legislative proposals, reporting 
requirements). The work has become even more ur gent as the co-legislators advanced several 
deadlines for the Commission's deliverables. Fo r example, the deadline for determining the 
sub-sectors deemed to be exposed to a signifi cant risk of carbon leakage was advanced by 6 
months to 31 December 2009, the deadline for adopting a Regulation on timing, administration and other aspects of auctioni ng was advanced by 6 months to 30 June 2010, 
and the deadline for adopting harmonised rule s for the transitional free allocation of 
allowances was advanced by 6 months to 31 December 2010.  
Due to the importance of providi ng regulatory certainty and predic tability to the market, the 
bulk of the necessary implementing measures  should be ready well in advance of the 
beginning of the third trading period in 2013.  
EU ETS/Hydroelectric power production projects
 
The Commission will monitor the application of the co-ordinated approach by Member States. 
Should voluntary co-ordination not  yield the anticipate d results, Article 11a (9) of the revised 
EU ETS Directive stipulates that from 1 Ja nuary 2013 the Community may take up measures 
restricting the use of specific credits from project types.  
EU ETS NAP Implementation  
By the end of 2008, only the NAPs of Bulgaria , Hungary, Poland and Cyprus still awaited 
approval (all of which except for Poland were notified after November 2008). 
The Commission is committed to defending its position in all cases currently pending before 
the CFI. 
EU ETS Registry  
EN 177   EN The main priority now is to prepare the Regul ation establishing the Community Registry for 
adoption through comitology. 
EU ETS/Monitoring, Reporting and Verification  
In 2009, the Commission's priority remain s focused on co-ordinating the national 
implementation of current MR&V procedures . Moreover, the Commi ssion will develop 
MR&V rules for aviation and CCS. 
7.6.3.2.  Planned action (2009 and beyond) 
EU ETS Review/Implementation  
During 2009 and 2010 the Commission plans to hol d a number of separate stakeholder and 
expert meetings regarding the list of (sub-)sector s deemed to be exposed to a significant risk 
of carbon leakage, the auctioni ng regulation, the harmonised  rules for transitional free 
allocation (benchmarks), the need for measures to prevent market abuse and the regulations 
on monitoring and reporting of emissions an d on verification of emission reports and 
accreditation of verifiers. All of these measures are to be adopted through comitology.  
The first measure to be adopted, by the end of 2009, will be the list of (sub-)sectors deemed to 
be exposed to a significant risk of carbon leakage. 
During 2010, the auctioning regulation and the ha rmonised rules for transitional free 
allocation and the amended registries regulation  are to be adopted. Th e registries regulation 
needs to be amended to take account of both the revised EU ETS and the effort sharing 
decision. The Commission also plan s to adopt guidance on free a llocation to the power sector 
in 2010. If further examination woul d show that there is a need to adopt measures to ensure 
that the carbon market is sufficiently protecte d from insider dealing a nd market manipulation, 
then these would also be due by the end of 2010.  
In addition, the Commission is to determine a nd publish the total quantity of allowances for 
the year 2013 and the estimated quantity of a llowances to be auctioned in September and 
December 2010, respectively.  
The exact access for each operator to the us e of JI/CDM credits within the 2008 to 2020 
period should be determined by early 2011, and by the end of 2011, the regulation on 
monitoring and reporting of emissions and the regulation on verification of emission reports 
and accreditation of verifi ers are due for adoption. 
On the basis of the explanations given by the Me mber States to the reque st for clarification on 
the implementation of the ETS Directive into their national legisla tion, the Commission will 
decide on further action in 2009. 
EU ETS/Hydroelectric power production projects  
The Commission will set up a website devoted to the co-ordinated approach to Article 11b (6) 
of the amended ETS directive by 1 April 2009 and will m onitor the implementation of 
voluntary guidelines by Member States.  
EU ETS NAP Implementation  
EN 178   EN The outstanding NAPs should be finalised during the first half of 2009. This work stream is to 
close afterwards, as the legislation applic able after 2013 does not envisage NAPs. Some 
follow-up work does remain in re lation to the processi ng of any changes proposed by Member 
States concerning the installa tion level allocation decisions. 
The Commission will deliver its defence at the or al stage of the proceedings currently pending 
before the CFI, throughout 2009 and 2010, includi ng replying to any questions raised by the 
CFI.  
EU ETS Registry  
The Regulation establishing the Community Regist ry should be published in the OJ by the 1st 
quarter of 2010. 
EU ETS/Monitoring, Reporting and Verification  
For the period 2009 to 2011, the Commission w ill prepare a Monitoring and Reporting 
Regulation in accordance with th e revised Article 14 of the EU ETS and its Annex IV instead 
of the present MRG.  
The Commission will also prepare an Accr editation and Verifi cation Regulation in 
accordance with the revised Article 15 of the EU  ETS and its Annex V. In this way a clear 
legal basis for verification and accreditation will be established. 
Both Regulations will have to be in place by 31 December 2011. Reporting cases under Article 3 (1) and (2) of Decision 280/2004/EC 
 
The Commission will continue to remind the Me mber States of their (annual and bi-annual) 
reporting obligations. A next round of reminders to the Member States probably concerns the 
bi-annual reports which were due for 15 March 2009.  
7.6.4.  Sector summary 
In 2008 the Member States a nd the Commission fu rther strengthened their commitment on 
combating climate change. In December 2008 th ey agreed on the climate change package 
which sets even more ambitious target s whilst providing the necessary framework inter alia  
by amending the ETS Directive170. This is a market-based instrument aimed at gradually 
reducing emissions in selected se ctors. It should help the Community and the Member States 
to meet their Kyoto Protocol commitments to reduce greenhouse gas emissions in a cost-efficient way. This renewed and extended commit ment will enable both the Member States 
and the Community to achieve their ambiti ous targets for 2013 and 2020. Apart from the 
adoption of the package, a whole range of le gal and practical implementation actions were 
decided and carried out in 2008 and will continue in 2009 and on. This included inter alia  the 
adoption of National Allocation Plans (NAP) unde r the ETS Directive, the preparation of 
Guidelines (on Hydroelectric power production projects) and linking the EU allowances 
registered in the Community Independent Tran saction Log (CITL) to the registration held 
under the Kyoto Protocol as well  as the extension of the CI TL so that it can register 
                                                
 
170 Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a 
scheme for greenhouse gas emission allowance trading within the Community and amending Council 
Directive 96/61/EC (OJ L 275, 25.10.2003, p. 32–46).  
EN 179   EN allowances issued to aviation. Ongoing legal ac tions, initiated by the Member States, private 
enterprises and the Commission, aimed at clarifyi ng existing obligations of the Member States 
and the Commission in the adoption of NAPs as well as ensuring th at the national legal 
systems will be able deliver according to the ETS Directive. It also included action on the 
reporting by Member States on their greenhouse gas emissi ons required under Decisions 
280/2004/EC171 and 2005/166/EC172. Monitoring and reporting allows for an accurate and 
regular evaluation of the progress made in  reducing emissions under the United Nations 
Framework Convention on Climate Change ( UNFCCC) and the Kyot o Protocol. Although 
much work was done in 2008, the high level of ambition of both the Member States and the 
Commission for cutting down greenhouse gas emissions  implies that a lot of work is still 
lying ahead.  
7.7. Industrial installations 
7.7.1.  Current position  
7.7.1.1.   General introduction  
The most important piece of legi slation relating to industrial em issions is Directive 2008/1/EC 
concerning integrated pollution pr evention and control (IPPC Dir ective, codified version of 
Directive 96/61/EC)173. This Directive sets out common permit rules for industrial 
installations in order to prevent and control emissions into air, water or soil. Installations covered by the IPPC Directive are required to operate under an integrat ed permit granted by 
the competent authorities of the Member States . The provisions of the directive were due to 
enter into effect either in 1999 (for new instal lations) or before the end of October 2007 (for 
existing installations). 
The Large Combustion Plants (or LCP) Directive, 2001/80/EC
174, aims to reduce emissions of 
sulphur dioxide, nitrogen oxides and dust from combustion plants whose rated thermal input 
is equal to or greater than 50 MW. The contro l of emissions from such plants plays an 
important role in the Community’s efforts to  combat acidification, eutrophication and ground-
level ozone as part of the overa ll strategy to reduce air pollution.  
Further important legislation relating to indus trial emissions includes the Waste Incineration 
Directive, 2000/76/EC175, and the VOC Solvent Emissions Directive, 1999/13/EC176.  
                                                 
171 Decision 280/2004/EC of the European Parliament and of the Council of 11 February 2004 concerning 
a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto 
Protocol (OJ L 49, 19.2.2004, p. 1–8).  
172 Commission Decision 2005/166/EC of 10 February 2005 laying down rules implementing Decision No 
280/2004/EC of the European Parliament and of the Council concerning a mechanism for monitoring 
Community greenhouse gas emissions and for implementing the Kyoto Protocol (OJ L 55, 1.3.2005, p. 
57–91).  
173 OJ L 24, 29.01.2008, p. 8-29.  
174 Directive 2001/80/EC on the limitation of emissions of certain pollutants into the air from large 
combustion plants  OJ L 309, 27.11.2001, p. 1–21  
175 Directive 2000/76/EC of the Eu ropean Parliament and of the Council of 4 December 2000 on the 
incineration of waste (OJ L 332, 28.12.2000, p. 91–111).  
176 Council Directive 1999/13/EC of 11 March 1999 on the limitation of emissions of volatile organic 
compounds due to the use of organic solvents in certain activities and installations ( OJ L 85, 29.3.1999, 
p. 1).  
EN 180   EN The National Emission Ceilings  (NEC) Directive, 2001/81/EC177, limits the total national 
emissions of certain air pollutants with the ai m to reduce negative effects on human health 
and the environment, such as  acidification, eu trophication and ground-level ozone. The NEC 
Directive covers air emissions  of all economic sectors with in the national territories.  
The Ozone Regulation178 sets out controls on producti on, importation, exportation, supply, 
use leakage, recovery and lays  down the phasing-out in line with the definitions of the 
Montreal Protocol.  
The Seveso II or Major Accident Hazard Directive179 applies to establishments in which 
certain dangerous substances are present in su fficiently large quantities to create a major 
accident hazard. It contains obligations on both operators and Member State authorities to 
take measures aimed at preventing major accide nts and limiting their consequences. One of 
the key requirements is that emergency plan s must be drawn up for areas surrounding so-
called “upper tier“ establishments  in order to properly protect  the public shoul d an emergency 
arise. 
7.7.1.2.  Report of work done in 2008 
Revision of the existing legal framework  
In December 2007 the Commission adopted a proposal  for a directive on industrial emissions 
(IPPC Recast) which was subsequently submitted to the legislative pro cedure in 2008 and is 
currently being negotiated in co-decision. Some  of the main proposed amendments to the 
legislation are the following: 
• Recasting the existing pieces of legislat ion (seven in number) into a single 
Directive on industrial emissions.  
• Improving and clarifying the concept of  BAT to create a more coherent 
application of the current IPPC directive  
• Introducing minimum provisions with rega rd to inspection, review of permit 
conditions and reporting of compliance.  
• Extending the scope of the IPPC Direc tive to cover certain activities (e.g. 
combustion plants between 20 and 50 MW)  
• Commission action to amend non-essential elements of the Directive supported by 
a Comitology Committee  
Work in relation to the revision of the NEC Directive also continued in 2008 and is still 
ongoing. Although the revision was sc heduled as part of the Commission legislative work 
programme for 2006 a proposal had to await the adoption of the Community energy and 
climate package. Finalisation of the proposal of the NEC Directive is presently underway. 
                                                 
177 Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national 
emission ceilings for certain atmospheric pollutants, OJ L 309, 27.11.2001, p. 22–30 
178 Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on 
substances that deplete the ozone layer, OJ L 244, 29.9.2000, p. 1–24 
179 Council Directive 96/82/EC on the control of ma jor-accident hazards involvi ng dangerous substances  
OJ L 10, 14.1.1997, p. 13–33. 
EN 181   EN In 2008 the Commission made a proposal for a recast of the Ozone Regulation which is 
expected to enter in to force as of 2010, su bject to the agreemen t of the corresponding 
European Institutions. The recast aims at simp lification, clarification and streamlining. Under 
the new regulatory text the production and cons umption of ozone depleting substances would 
be reduced. This would not onl y protect the ozone layer but  also reduce greenhouse gas 
emissions. 
A review of the Seveso II Directive, the pr ovisions of which have  remained essentially 
unchanged for over 10 years, also continued in 2008 and remains ongoing with Commission proposals for possible amendments to th e Directive expected in early 2010. 
Compliance promotion and legal enforcement work
 
The Commission has developed an action plan for implementation of the existing legislation 
on industrial emissions that forms part of the 2007 Commissi on Communication " Towards an 
improved policy on industrial emissions "180. It sets out key actions over the timeframe 2008-
2010, the details of which are set out within  the Communication itself. During 2008 the 
Commission continued to carry out implementation work in line with the actions specified in the action plan. 
Non-conform transposition of the IPPC Directive 
During 2008 the status of transposition of the IPPC Directive by EU-10 MS has been 
analysed, and as a result three non-conformity infringement pro cedures were launched against 
the Czech Republic, Estonia and Lithuania. In a ddition, following a judgment of the Court in 
May 2008 which condemned Belgium for the non-c onform transposition of  several provisions 
of the directive (Case C-271/07), the Commis sion sent Belgium in December 2008 a first 
warning letter under Article 228 of the EC Treaty.  
IPPC permits for existing installation s under Article 5(1) of the Directive  
After the expiry of the dead line of 30 October 2007 by when al l existing IPPC installations 
had to obtain a permit issued in accordance w ith the requirements of  the Directive, the 
Commission requested an update from all Memb er States on the state of play of their 
permitting processes. The answers showed that, despite warnings sent by the Commission to 
all the MS on several occasions, the deadline for issuing the permits was missed for about 
10,000 installations. To address these syst ematic breaches, the Commission started 
infringement procedures against several Me mber States who were  significantly lagging 
behind in issuing permits compliant to the I PPC Directive. As of December 2008, eleven 
infringement procedures were ongoing on this ground against Belgium, Bulgaria, Denmark, 
Estonia, Greece, Spain, Ireland, The Netherlands, Portugal and Slovenia.  
Implementation of the LCP Directive  
Under the LCP Directive, Member States ha d to submit the summary of their emission 
inventories for years 2004, 2005 and 2006 to  the Commission by 31 December 2007. In 
October 2007, the Commission reminded all MS to this obligation and requested that MS also 
submit plant-by-plant emission data. These ar e essential pieces of information for the 
Commission in order to assess the actual im plementation of the Di rective. In 2008, the 
                                                
 
180 COM(2007) 843 final 
EN 182   EN Commission initiated infringement procedures against three Member States (Italy, Sweden 
and Malta) who had not submitted all the information required. Following the submission of the missing information, these infringement procedures were subsequently closed. 
Implementation of the Ozone Regulation 
During 2008 no new infringement cases relating to the Ozone  Regulation were launched. A 
number of cases against Latvia, Lithuania, Estonia, Cyprus, Denmark, UK, Greece, Malta and 
Italy however remained open from previous years regarding the failure to fulfil the obligations 
in relation to the decommissioning of halons used  in fire extinguishers of  ships. Nevertheless, 
it should also be noted that the Commission ha s observed an important progress in fulfilling 
this decommissioning requirement in all the ab ove-mentioned Member States except Malta. 
Non-conform transposition of  the Seveso II Directive 
In 2008 the Commission pursued th e infringement procedures it had opened against all EU-10 
Member States except Slovakia for non-conform transposition of Directive 96/82/EC and the 
amending Directive 2003/105/EC (the Seveso II  Directive). At the end of 2008, 5 of those 
cases against Czech Republic, Estonia, Latv ia, Lithuania and Poland remained open.
 The 
Commission also opened infringe ment procedures against 5 EU -15 Member States (Denmark, 
Finland, France, Sweden and UK) for non-conform transposition of amending Directive 2003/105/EC. 
External Emergency Plans under the Seveso II Directive 
The Commission also continued the "horizontal" legal action launched in 2007 against those 
Member States where emergency plans for so-ca lled upper-tier establishm ents were lacking in 
breach of the Seveso II Directive. In total, second warning letters were issued against 14 
Member States (Austria, Belgium, Cyprus, Czech Republic, France, Germany, Ireland, Italy, 
Luxembourg, Malta, Netherlands, Portugal, Sp ain and Sweden). During 2008 most Member 
States made significant progress towards gettin g the necessary plans in place and several 
cases were closed. However in a few cases, the Commission was obliged to refer the matter to 
the Court. By the end of the year 6 such cas es against Austria, Belgium, Germany, Italy, 
Luxembourg and Spain remained ongoing.  
Judgments of the Court of Justice in 2008 
In a judgment of 20 May 2008 (Case C-271/07), the Court of Justice declared that that by 
transposing in part or incorrectly several provisions of the IPPC Directive, Belgium had failed 
to fulfil its obligations under that directive. 
7.7.2.  Evaluation based on the current situation 
IPPC directive  
The Commission has carefully monitored the tr ansposition of the IP PC directive and the 
related legislation on industrial emissions as well as their implementation. An overall 
evaluation of the position and proposed actions are set out in  the Commission Communication 
‘Towards an improved po licy on industrial emissions ’
181. This evaluation recognises that the 
                                                 
181 COM(2007) 843 final. 
EN 183   EN IPPC Directive still falls substan tially short of being fully applie d and respected. This is partly 
due to very significant delays  in the correct transpositi on and implementation of the 
obligations of the directive in an important number of Member States. The impact assessment 
undertaken as part of the revi ew of the IPPC Directive ha s indicated that the problems 
identified cannot be addressed without some ch anges in the legislation. The main problems 
relate to the important delays in issuing the I PPC permits, shortcomings in the implementation 
of the IPPC Directive (in partic ular BAT), a need for increased clarity in the legislation, 
restrictions in its scope and insufficient enforc ement of its application. This has led to the 
adoption by the Commission in December 2007 of  a proposal for a directive on industrial 
emissions (IPPC Recast), which is curre ntly being negotiated in co-decision. 
During the monitoring of the application of the IPPC Directive, the main focus has been on 
how effectively Member States have implemen ted the directive by reference to installation-
specific case studies. In partic ular, the Commission has carried out a detailed analysis of the 
quality of the permits issued and of the permitting, compliance and enforcement regimes 
adopted by Member States. Based on a two-y ear process of data collection through an 
extensive programme of ten studies and co ntinuous consultation of stakeholders, the 
Commission came to the conclusion that the key pr inciples of the current IPPC directive, in 
particular the integrated appr oach based on 'Best Available Techniques', remain a sound basis 
for the future development of EU legislation on industrial emissions.  
LCP directive 
The above-mentioned installation level assessme nts also included seve ral large combustion 
plants, which are subject to the minimum requirements set under the LCP Directive. 
Furthermore, the Commission has evaluated th e emission inventories submitted by Member 
States under this Directive. This showed that , two years ahead of the implementation deadline 
of 1 January 2008 for existing plan ts, many Member States were s till far away from achieving 
the levels required by the LCP Directive, le t alone from achieving the emission levels 
associated with application of BAT. The strong lack of BAT implementati on in this particular 
sector was one of the main drivers for the Co mmission to incorporate the LCP Directive into 
the IPPC Recast Proposal and to strengthen the minimum emission limit values applicable for 
these installations.  
Waste incineration directive 
In connection with the review of the IPPC Directive and related le gislation on industrial 
emissions, a study182 has also been carried out on the implementation of Directive 
2000/76/EC on the incineration of waste (WID).  The main results were reported by the 
Commission as an annex to the Communication ‘Towards an improved policy on industrial 
emissions ’183. It was found that the overall compliance with the Directive in terms of issued 
permits can be considered as good. Also the assessment of complian ce with environmental 
requirements has found that, in general, incinera tion plants meet the air emission limit values 
set in the WID. A couple of issues were ho wever identified that require further action. 
Therefore the Commission's IPPC Recast Pro posal includes a few changes to the WID 
concerning possibilities for the competent aut horities to grant exem ptions for emission 
                                                 
182 Assessment of the application and possible development of Community legislation for the control of 
waste incineration and co-incineration (Ökopol, 2007) - 
http://circa.europa.eu/Public/irc/env/ippc_rev /library?l=/waste_incineration/final_report/  
183 COM(2007) 843 final. 
EN 184   EN monitoring requirements and the alignment of an emission limit value for cement kilns co-
incinerating waste with the BAT levels.  
NEC directive 
The implementation of the NEC Directive has been monitored through the annual reporting of 
emissions and projections by Member States as  well as through in-depth analyses of the 
national programmes184 developed by the Member States . These evaluations and other 
stakeholder consultations have provided valuab le input for the future  revisions of the NEC 
Directive. Two Member States (Greece and Luxemburg) failed to report such national 
programmes in 2006 and infringement procedur es are ongoing against them. One Member 
State (LU) still has not repor ted. The annual reporting of em issions and projections has 
improved over the years as a consequence of Commission guidance at annual Comitology 
meetings. In 2008, still a few Member States (Luxemburg, Greece, France, Spain) have failed 
to provide the full annual reports and may face  infringement procedures. The latest annual 
reports indicate that most Member States will be able to meet the ceilings of the NEC 
Directive by 2010, but a number of Member States  project themselves to be above the limits. 
This fact has led the Commission to further enqu iries to the Member St ates on what additional 
action they plan to re spect the ceilings by 2010. 
Ozone Regulation 
Regarding the implementation of the Ozone Regulat ion, it can be said that while a number of 
infringement cases have remained open from prev ious years and individual  issues may persist, 
in general Member States are in  compliance with the Regulation. 
Seveso directive 
The basic provisions of the Seveso Directive have remained essentially unchanged since 
1996. Overall, the Directive appear s to be being satisfactorily a pplied and respected. The level 
of transposition and implementation of the Directive has continued to improve, and the 
number of outstanding legal proceedings ha s steadily reduced. However there remain 
concerns as regards performance in relation to  external emergency plans for so-called upper-
tier establishments. A review of the Directiv e is ongoing. To inform the review process, 
which is expected to lead to Commission proposals in ear ly 2010, a number of studies are 
being undertaken to assess the direct ive's effectiveness. At this st age, the main change that is 
foreseen is the adaptation of Annex to the Di rective to the Globally Harmonised System of 
classification of dangerous substances. 
7.7.3.  Evaluation results 
7.7.3.1.  Priorities 
IPPC directive and related legi slation on industrial emissions 
The negative consequences for the environmen t of the problems identified are clear and 
serious. Attention therefore needs to be paid to improved respect  for the existing directive and 
to a strong follow-up on full implementa tion of the existing provisions.  
                                                 
184 Consultancy reports available on Commission web page 
http://ec.europa.eu/environment/air/pollutants/rev_nec_dir.htm  
EN 185   EN Priority is therefore attached to: 
• Ensuring full transposition of the relevant  Community legislation by Member States 
• Increased assistance to Member States on implementation 
• Ensuring that Member States fulfil their reporting obligations.  
• A more systematic approach concerning the breaches of the IPPC Directive and 
launching of infringement procedures 
• Annual reporting on progress in implementation of the Action Plan and its revision in 
2010 (see further information below). 
• Development of the legal framework through the revision of the current legislation 
and adoption of a new directive 
On the basis of these priorities and the wo rk programming set out be low, it is hoped to 
achieve substantially correct comp liance with the existing provisi ons at the late st by 2012, by 
which time the focus of attention will move to the implementation of the planned legislative developments. 
Seveso directive 
Regarding the Seveso II Directive, priority is being attached to ensuring the full transposition 
and implementation of the Directive in all the Member States. Another priority is the ongoing 
review of the Directive.  
7.7.3.2.  Planned action (2009 and beyond) 
2008-2010 Action Plan on implementation of  the existing IPPC directive 
The Commission will continue to  prioritise work on its current collective infringement 
proceedings, covering a large number of deficiencies in several Member States. In the absence of clear signs of significant progress by other Member States having fewer, but nevertheless 
important, deficiencies in the application of  the directive, the Commission will consider 
opening additional proceedings. Infringement pro ceedings could also be opened against those 
Member States showing a significant dela y in fulfilling their reporting obligations. 
The Commission will strengthen its monitoring  and supporting mechanisms by revising and 
refocusing the current IPPC Action Plan on Implementation for the time period 2008-2010 as 
set out below.  
• Ensure full transposition of the le gislation on industrial emissions 
The success of the existing legislation relies first of all on effective transposition by 
Member States in their na tional legal systems. At th e end of 2008, Belgium, Czech 
Republic, Estonia and Lithuania had still not  fully transposed the IPPC Directive. 
The Commission will continue to pursue infringement proceedings to ensure full and correct transposition of the i ndustrial emissions legislation.  
• Support Member States in their im plementation of the legislation 
This will include enhanced information exchange, the development of guidance, 
visits to authorities and training. Th is support will continue throughout the 
introduction and implementation of the revised legislation.  
• Enhanced monitoring and compliance checks  
EN 186   EN The Commission will continue to monitor th e number of IPPC permits issued and 
updated and, where required, investigate th e system of monitori ng and inspection at 
IPPC installations. Such investigation will cover specific industrial installations and sectors, the use of general binding ru les, and the analysis of complaints. 
• Improve data collection for review of BRE Fs and create str onger links with the 
Research Framework Programme 
The permit conditions, including emission limit values (ELVs), used in IPPC 
permits must be based on BAT as defined in the IPPC Directive. To continue to help 
the licensing authorities and companies to determine BAT, the Commission will continue to organise the exchange of information between experts from Member 
States, industry and environmental orga nisations resulting in the adoption and 
publication by the Commission of BAT Reference Documents (BREFs). 
Seveso directive 
The Commission will continue to  monitor implementation of th e Seveso directive and take 
action as appropriate. In particular, the Comm ission will continue to ensure that Member 
States fulfil their obligations  in relation to external emergency plans. The ongoing work in 
relation to the review of the Directive will also continue in 2009 with Commission proposals 
for possible amendments to the Di rective expected in early 2010. 
7.7.4.  Sector summary  
The IPPC directive is a comple x legislative instrument, therefore its transposition by Member 
States into the national legislation was suffe ring significant delays or was done incorrectly 
and incompletely. This resulted in late and in sufficient implementation of its provisions. In 
particular, its effectiveness has been weakened  by implementation shortcomings relating to a 
low uptake of BAT, the misuse of flexibility provided for by the Directive, non-transparent 
way of permitting etc. In consequence, several IPPC installations do not comply with the Directive and give rise to infringement procedures, petitions, citizen complaints.  
The ongoing legislative (review) process does not  only address the exis ting deficiencies, but 
provides for more clarity and stringency with  regard to permit conditions based on BAT, 
enforcement regimes and the scope of the legislation.  
However, legislative work of approximately 1,5 years and then implementation of further two 
years remain to be done before the new direc tive can become effective. During this period, 
both Member States and the Commission have  to focus on the current provisions, and 
strengthen their efforts to ensure full compliance with them in order to achieve a high level of 
environment protection and human health. 
7.8. Chemicals, Pesticides, Bi ocides and Biotechnology 
7.8.1.  Current position 
7.8.1.1.  General introduction 
Chemicals 
EN 187   EN The REACH Regulation  (1907/2006)185, which entered into force on 1 June 2007, is the 
cornerstone of the EU’s new chemicals legislat ion. REACH, which is considerably more far-
reaching than previous legislation, deals with  the registration, evaluation, authorisation and 
restriction of chemicals. Registration means th e process by which information on the safety of 
chemicals will need to be submitted for regist ration in a central database, managed by ECHA. 
Evaluation includes a quality check of the regi stration dossiers and ex amination of testing 
proposals and is done by ECHA; it also includes  a more thorough examination of specific 
substances, where Member States play an impo rtant role. Substances of very high concern 
will require authorisation  for use and before being placed on the market. There is a procedure 
for restriction of manufacturi ng, placing on the market or usi ng of certain substances where 
there is an unacceptable risk to health or th e environment, which needs to be addressed on 
community wide basis. 
The newly adopted Regulation (EC) No 1272/2008186 on the Classification, Labelling and 
Packaging of Substances and Mixtures inco rporates the UN GHS (United Nations Globally 
Harmonised System) into Community law and will replace after a transitional period certain provisions of the current direct ives related to the classifica tion, packaging and labelling of 
dangerous substances (Directive 67/548/EEC
187) and preparations (Directive 1999/45/EC188). 
Provisions of these Directives shall be repealed with effect from 1 June 2015. 
Directive 76/769/EEC, which concerns restric tions on the marketing and use of certain 
dangerous substances, will remain in force until 1 June 2009, when it will be repealed by the REACH Regulation.  
Two other pieces of legislation should be menti oned here. First, persistent organic pollutants 
(“POPs“) are governed by Regulation (EC) No 850/2004
189. This legislation implements the 
commitments to which the Community has si gned up to under the 1998 UN-ECE Protocol on 
POPs and the UNEP Stockholm Convention on POPs . The Regulation contains requirements 
to eliminate and/or restrict POP substances to a level equal or ev en stricter that foreseen under 
the international agreements. The obligations from the two international agreements have thus 
been completely transported into Community Law and are as such enforceable according to 
these rules. 
Second, basic provisions concerni ng the protection of laboratory animals used in experiments 
are contained in Directive 86/609/EEC190. On 5 November 2008 the Commission adopted a 
proposal to revise Directive 86/609/EEC. One of the key reas ons for the proposed revision 
was uneven implementation of the di rective in the Member States. 
Pesticides, Biocides and Biotechnology  
                                                 
185 Regulation (EC) No 1907/2006 of  the European Parliament and of  the Council of 18 December 2006 
concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), 
establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No. 793/93 and Commission Regulation (EC) No 1488/94 as well as Council 
Directive 76/769/EEC and Commission Directives 91/155/EEC,  93/67/EEC, 93/105/EC and 
2000/21/EC. 
186 OJ L 353, 31.12.2008, p. 1 
187 OJ L 196, 16.08.1967, p. 1. 
188 OJ L 200, 30.07.1999, p. 1. 
189 OJ L 158, 30.4.2004, p. 7. 
190 OJ L 358 , 18.12.1986 p. 1. 
EN 188   EN Directive 2001/18/EC of the European Parliament  and of the Council on th e deliberate release 
into the environment of genetically modifi ed organisms ("GMO") and repealing Council 
Directive 90/220/EEC191 establishes a common methodology for risk assessment and a safety 
mechanism. It also introduces mandatory public  consultation and GMO labelling. Directive 
90/219/EEC on the contained use of gene tically modified micro-organisms192, amended by 
Council Directive 98/81/EC193 of 26 October 1998, lays down  common measures for the 
contained use of genetically modified microorga nisms with a view to protecting human health 
and the environment. 
The regulatory framework on plan t protection products is govern ed by Directive 91/414/EEC 
defining strict rules for the authorisa tion of plant protection products (PPPs) 194. The Directive 
requires very extensive risk assessments for e ffects on health and environment to be carried 
out, before a PPP can be placed on the market and used.  As the current legislative framework 
mainly concentrates on the beginning and the en d of life stages of pe sticides, the Commission 
adopted in June 2006 the Thematic Strategy on the Sustainable Use of Pesticides together 
with a proposal for a Framework Directive on the sustainable use of pesticides and a proposal 
for a Regulation on the placing of plant protec tion products on the market revising Directive 
91/414/EEC. It is expected that  the new Framework Directiv e on the sustainable use of 
pesticides will be adopted in the first half of 2009. 
Directive 98/8/EC of the European Parliament  and of the Council concerning the placing of 
biocidal products on the market195 (the Biocides Directive) concerns the authorisation and 
placing on the market of biocidal products in the Member States, the mutual recognition of 
authorisations within the Community and the es tablishment at Community level of a list of 
active substances which may be used in biocidal products.  
It should be noted that the product authorisation st age of the Biocide Di rective has not yet 
been implemented. By 1 March 2009, 27 active s ubstances were included in Annex I and 1 
active substance in Annex IA. The applications for authorisations of products containing these 
active substances are expected to be submitted to  the competent authorities in the near future. 
In accordance with Article 16(1) of the Direc tive, Member States are allowed to apply 
national rules and pr actices during the implementati on of the review programme. 
7.8.1.2.  Report of work done in 2008 
This sector of EC environmental law is char acterised by substantial new developments, in 
particular in the chemicals and pesticides sect ors; however, legal enforcement action in these 
fields does not constitute a signifi cant workload for the Commission. 
Chemicals 
REACH entered into force on 1 June 2007. This included the establishm ent of the European 
Chemicals Agency (ECHA) and the preparati on of IT-systems to hold the new database. 
Registration of chemicals manufactured or importe d in quantities of 1 tonne or more per year 
started on 1 June 2008. Between 1 June and 1 December 2008 manufacturers had the 
                                                 
191 OJ L 106, 17.4.2001, p. 1.  
192 OJ L 117, 8.5.1990, p. 1. 
193 OJ L 330, 5.12.1998, p. 13. 
194 OJ L 230, 19.8.1991, p. 1. 
195 OJ L 123, 24.4.1998, p. 1. 
EN 189   EN possibility to pre-register their phase-in subs tances. Pre-registration, as its name suggests, 
precedes full registration and provides for extended deadlines. Depending on the volumes and the hazardous properties of substances, th ese extended deadlines are 2010, 2013 or 2018. 
ECHA has received about 2.7 millions pre-registra tion dossiers. If a company failed to pre-
register by 1 December 2008 it can no longer place its phase-in substances on the market until 
it has completed registration. Within the proc ess of authorisation ECHA has identified 15 
substances of very high concern (SVHC) for the candidate list subject to eventual 
authorisation. Out of these substances 7 we re prioritised for authorisation. After a 
Commission decision to make a substance subject to authoris ation (inclusion in Annex XIV 
REACH) any manufacturer, impor ter or downstream user of that substance must apply for 
authorisation to use it. 
Member States were obliged to notify to the Commission their na tional provisions for 
penalties applicable for REACH infringe ments by 1 December 2008. The Commission drew 
Member States' attention to that obligation during the meetings of the REACH Competent Authorities and administrative lette rs before and after the noti fication deadline. A number of 
Member States did not fulfil th at obligations and therefore by March 2009 legal enforcement 
action was launched against 8 Member States. 
Every three years Member States shall fo rward to the Commission information on the 
application of the POPs Regula tion including information on in fringements and penalties and 
statistical data on production and placing on the market of pa rticular substances. By the 
deadline of 20 May 2008 several Member States  had not fulfilled these obligations. Five 
Member States did not provide any information and nine Memb er States did not send their 
annual reports. The Commission has sent reminders  to Member States ab out these obligations 
and urged to provide information as soon as  possible during a meeting of the Competent 
Authorities in January 2009. 
Pesticides, Biocides and Biotechnology  
A horizontal enforcement action against Member States dealing with incorrect transposition 
of Directive on Contained Use of ge netically modified micro-organisms
196 was opened in 
2007 and continued in 2008. In 2008, the Commissi on received replies to the first warning 
letters that were sent to twel ve Member States and after their assessment was able to close 
almost half of the enforcement procedures afte r conformity has been achieved. The remaining 
conformity files are still being assessed with a view to ask Memb er States for clarifications 
and comments on their legislation, where necessary. It  is expected that the relevant letters will 
be sent to the Member States in 2009.  
In judgment in Case C-121/07 the European Court of Justice decided that  France has to pay a 
lump sum of EUR 10 million for failure to comp ly with Judgment of 15 July 2004 (C-419/03) 
holding that France had failed to transpose Directive 2001/18/EC on the deliberate release 
into the environment of GMOs. The Court al so found that France fully transposed the 
Directive in June 2008, thus it considered th e imposition of a penalty to be unnecessary. 
In Case T-75/06, the Court of First Instance di smissed an application for the annulment of 
Commission Decision 2005/864/EC of 2 Decemb er 2005 concerning the non-inclusion of 
                                                 
196 Council Directive 90/219/EEC of 23 April 1990 on the containe d use of genetically modified micro-organisms as amended by 
Council Directive 98/81/EC. 
EN 190   EN Endosulfan in Annex I to Council Directive 91/41 4/EEC and the withdrawal of authorisations 
for plant protection products co ntaining that active substance. 
In the area of biocidal products, the Biocides Directive stipulates  that Member States have to 
take the necessary steps to monitor their market and make sure it complies with the 
requirements of the Directive.  The second composite report was prepared by the Commission 
in April 2008, covering the period December 2003 to November 2006.  
During 2008 the Commission followed the tran sposition of the Commission Directives 
amending Directive 98/8/EC concerning the plac ing of biocidal produc ts on the market. The 
Commission has closed most of  the open infringement cases. 
All Member States and Norway, Iceland and Liechtenstein have designated one or more 
authorities to monitor compliance and to perf orm market surveillance for biocidal products. 
However, most Member States consider that th ey dispose of insufficient human resources to 
cope with the different monito ring activities due to budgetary constrains and/or organisational 
problems. 
All Member States and Norway showed specif ic efforts to comply with the phase-out 
provisions for certain biocid al products in accordance with Regulation (EC) No. 
2032/2003197. However, only 12 out of 25 Member States198 and Norway confirmed that they 
have mechanisms in place to correctly react to non-inclusion decisions. 
In October 2008, the Commission prepared a re port on the evaluation of the implementation 
of Directive 98/8/EC concerning the placing of biocidal products on the market (submitted in 
accordance with Article 18(5) of  the Directive) and a progress report on the work programme 
referred to in Article 16(2) of the same Directive.  
During 2008 the Commission opened horizont al non-communication cases concerning 
Commission Directive 2006/140/EC199 of 20 December 2006 amendi ng Directive 98/8/EC of 
the European Parliament and of the Council to in clude sulfuryl fluoride as an active substance 
in Annex I thereto, against 14 Member States. Th e referred cases were closed during the year, 
as soon as the transpositions we re notified to the Commission.  
The Commission also opened 11 horizont al non-communication cases concerning 
Commission Directive 2007/20/EC200 of 3 April 2007 amending Directive 98/8/EC of the 
European Parliament and of the Council to incl ude dichlofluanid as an active substance in 
Annex I thereto. Most of the af orementioned cased were closed during the year, but two of 
them are still open. 
A similar situation followed the implem entation of Commission Directive 2006/50/EC201 of 29 
May 2006 amending Annexes IVA and IVB to Directive 98/8/EC of  the European Parliament 
and of the Council concerning th e placing of biocidal products  on the market, where out of 
seven non communication cases opened during 2008, only one is still open. 
                                                 
197 As of 31 December 2007, Regulation (EC) No. 2032/2003 has b een repealed and replaced by Regulation (EC) No. 1451/2007. 
198 Since Bulgaria and Romania have acceded the EU as from 1 Ja nuary 2007, they are not included in the second composite report 
which covers a period from December 2003 to November 2006. 
199 OJ L 414, 30.12.2006, p. 78. 
200 OJ L 94, 4.4.2007, p. 23. 
201 OJ L 142, 30.5.2006, p. 6. 
EN 191   EN In 2008 three non-communication cases were re gistered concerning Commission Directive 
2007/69/EC202 of 29 November 2007 amending Directive 98/8/EC of the European 
Parliament and of the Council to  include difethialone as an  active substance in Annex I 
thereto and two concerning Co mmission Directive 2007/70/EC203 of 29 November 2007 
amending Directive 98/8/EC of the European Parl iament and of the Coun cil to include carbon 
dioxide as an active substance in Annex IA thereto. All of these cases are still ongoing. 
7.8.2.  Evaluation based on the current situation 
Chemicals 
As the REACH Regulation entered into force on 1 June 2007 and its main obligations started 
applying on 1 June 2008, there is not yet sufficien t information concerning its implementation 
in Member States. In order to ensure complian ce, Member States should put in place effective 
monitoring and control measures. The Commissi on is concerned that Member States may not 
be able to make sufficient resources available to ensure compliance by economic operators. 
Every five years Member States must submit a report to the Commi ssion on the operation of 
the Regulation in their respective territori es, including secti ons on evaluation and 
enforcement. The first report has to be submitted by 1 June 2010. The Commission is 
currently preparing a reporting form at and an IT system for these reports. Member States must 
furthermore lay down the provisions on pena lties for non-compliance with the REACH 
Regulation. The penalties provide d for must be effective, pro portionate and dissuasive. They 
had to be notified to the Commission by 1 December 2008. By March 2009 notification was 
still missing from 8 Member States. 
With regard to POPs Regulati on, the reason for the failure to  submit the annual reports could 
be that the Member States may consider them as  low priority, as the reporting format only sets 
out four questions which remain the same ev ery year. As for the three annual reports, the 
reasons could be linked to non-ratification of  the Stockholm Convention on POPs and/or the 
Protocol to the regional UNECE Convention on Long-Range Transboundary Air Pollution 
(CLRTAP) on POPs. 
Pesticides, Biocides and Biotechnology  
Concerning the biotechnology sector , the overall situation as rega rds implementation has to be 
seen as poor. The studies obtained by the Co mmission and examined by the Commission in 
2007 revealed a number of shortcomings in the national implementing legislation for 
Directive 90/219/EEC as amended by Directive 98/81/EC in several Member States. In 2008 
the Commission continued legal enforcement ac tions launched in 20 07 against several, 
mainly EU-15, Member States concerning incorr ect transposition of the Directive. However, 
not all Member States' transposition measures have been appropriately  assessed to conclude 
conformity. 
As regards pesticides, the current legislative framework mainly concen trates on the beginning 
and the end of life stages of pesticides; therefore, the Commission aims to fill the current legislative gap regarding the use-phase of pes ticides at EU level by setting minimum rules for 
the use of pesticides in the Community, so as to reduce risks to human health and the 
environment from the use of pesticides. The adoption of the new Fram ework Directive would 
                                                
 
202 OJ L 312, 30.11.2007, p. 23. 
203 OJ L 312, 30.11.2007, p. 26. 
EN 192   EN help to achieve a more sustainable use of pe sticides by reducing the risks and impacts of 
pesticide use on human health and the environm ent in a way that is consistent with the 
necessary crop protection. 
In the area of biocidal products, the second co mposite report prepared by the Commission in 
April 2008, covering the period December 2003 to November 2006, has found that Member 
States have made significant progress in implementing and enforcing the directive’s 
provisions by taking the appropriate measures. 
All Member States and Norway, Iceland and Liechtenstein have designated one or more 
authorities to monitor compliance and to perf orm market surveillance for biocidal products. 
However, most Member States consider that th ey dispose of insufficient human resources to 
cope with the different monito ring activities due to budgetary constrains and/or organisational 
problems. 
During 2008 the Commission followed the tran sposition of the Commission Directives 
amending Directive 98/8/EC of the European Pa rliament and of the Council of 16 February 
1998 concerning the placing of biocidal products  on the market, most of the opened cases 
have been satisfactory closed. 
In 2008, the Commission carried out an impact assessment wh ich concluded that certain 
changes should be made to the Directive to ma ke it more effective and efficient, reducing 
unnecessary burdens for Member States and i ndustry whilst maintaining a high level of 
protection of human health and environment. The Commission intends to present its proposal 
for a revision of the Biocides Dir ective in the course of the year 2009. 
7.8.3.  Evaluation results 
7.8.3.1.  Priorities 
Chemicals 
Effective implementation of REACH is the ma in priority in the chemicals sector. The 
Chemicals Agency is playing a key role in the effective implementation of REACH. It will 
coordinate, over a period of 11 years, the regi stration of some 30 000 chemical substances in 
use today. To exchange information on enforcem ent, the Forum for Exchange of Information 
on Enforcement, composed of members nominat ed by the Member States, was set up within 
ECHA. The Forum coordinates a network of Member State authorities responsible for 
enforcement of the Regulation. Its main task s include: proposing, coor dinating and evaluating 
harmonised enforcement projects and joint inspections; identifying enforcement strategies 
and, best practice in enforcement; and examini ng proposals for restrictions with a view to 
advising on enforceability. 
Pesticides, Biocides and Biotechnology  
In biotechnology sector the main priority is to ensure correct transposition and 
implementation of Directive 90/219/EEC as am ended in all Member States. The Commission 
will also determine whether further action is ne eded with respect to Member States which 
have not properly transpos ed Directive 90/219/EEC.  
EN 193   EN As regards pesticides, the adoption of the ne w Framework Directive is  a priority for the 
Commission. It is expected that the Framework Directive on the sustaina ble use of pesticides 
will be adopted in the first half of 2009. Member States will have two ye ars to transpose it.  
The Commission will carefully monitor that th e obligations of the Member States under the 
biocides review programme, including the deliver y of competent authority reports, are being 
adequately resourced and met, and will take action where this is not the case. 
The first applications for authorisations in accordance with the Biocides Directive are 
expected in 2009. In order to realise the enviro nmental and human health benefits under the 
Directive, it will be necessary to ensure a un iform interpretation and implementation of the 
requirements concerning product authorisation a nd mutual recognition. In view of this, the 
Commission established an informal expert  group on product authorisation and mutual 
recognition which aims to facilitate the impl ementation of the legal requirements and to 
provide for an exchange of views. 
In 2008, the Commission carried out an impact assessment wh ich concluded that certain 
changes should be made to the Directive to make it more effective and efficient, reducing unnecessary burdens for Member States and i ndustry whilst maintaining a high level of 
protection of human health and environment. The Commission intends to present its proposal 
for a revision of the Biocides Directive in th e course of the year 2009. The proposal will take 
form of a Biocides Regulation repealing and replacing the Biocides Directive. The main 
changes proposed by the Commission will include an extension of the scope to materials and articles treated with biocidal products, a possi bility to have certain categories of products 
authorised at Community level, measures ai med at strengthening the mutual recognition, 
obligatory rules on data sharing of tests i nvolving vertebrate animals and a partially 
harmonised fee structure. 
7.8.3.2.  Planned action (2009 and beyond) 
Chemicals 
The Commission will continue to work to enhance good cooperation, coordination and 
exchange of information with the Member States and the European Chemicals Agency 
regarding enforcement so that the system es tablished by the REACH Regulation can operate 
effectively. The Commission will work closely with the Forum for Exchange of Information 
on Enforcement in this regard. 
The Commission has already launched legal en forcement action against 8 MS to ensure 
compliance with REACH on the obligation to put in place provisions on effective, proportionate and dissuasive penalties for breach es of REACH; during 2009 this enforcement 
action will be continued. Late r in 2009 the Commission aims to  finalise a study assessing the 
abovementioned national provisions on penalties for non-compliance with REACH. This study should provide Member States and th e Commission with an overview of national 
regimes for penalties and identify discrepancies be tween them. It will be made available to the 
Member States with the aim to strengthen  cooperation between them in the area of 
enforcement.  
With regard to POPs Regulation the Commission will continue to stress to the Member States 
the importance of the continuity of the in formation provided by them. Furthermore the 
Commission intends to improve the reporting format with the aim to make it more user-friendly and less time consuming. This can be achieved by establishing links to the SEIS 
EN 194   EN (Shared Environmental Information System) initiative. A SEIS Regulation is currently under 
preparation. The Commission will also addre ss reminders to Member States about their 
reporting obligations on the application of  the POPs Regulation, followed by legal 
enforcement action where necessary. 
Pesticides, Biocides and Biotechnology  
In biotechnology sector, the Commission will c ontinue legal enforcement actions already 
launched in 2007 and will take the necessary admi nistrative and legal acti on to ensure correct 
transposition and implementation of Directive 90 /219/EEC as amended in all Member States.  
As regards pesticides, it is expected that th e new Framework Directive on the sustainable use 
of pesticides will be adopted in the first half  of 2009. Member States w ill have two years to 
transpose it. The Commission will carefully monito r its transposition on the basis of a risk-
based implementation action plan. This will in volve forward planning of  work to encourage 
correct and timely transposition. 
As regards the biocides, the Commission will continue to pur sue infringement procedures 
concerning the non-communication of the nati onal implementing measures of recently 
adopted directives that upda te the relevant Annexes. 
The first applications for authorisations in accordance with the Biocides Directive are 
expected in 2009. The Commission will us e the informal expert group on product 
authorisation and mutual recognition to ensure a uniform interpretation and implementation of 
the requirements concerning product aut horisation and mutual recognition. 
The Commission intends to present its proposal for a revision of the Biocides Directive in the 
course of 2009. The proposal wi ll take form of a Biocides Re gulation repealing and replacing 
the Biocides Directive. The main changes proposed by the Commission will include an 
extension of the scope to material s and articles treated with bioc idal products, a possibility to 
have certain categories of products authorised  at Community level, measures aimed at 
strengthening the mutual rec ognition, obligatory rules on data  sharing of tests involving 
vertebrate animals and a partially harmonised fee structure. The choice of a legal instrument 
(i.e. regulation) will ensure the uniform app lication of the new instrument throughout the EU, 
in particular the procedures and deadlines for authorisation of biocid al products and mutual 
recognition of those authorisations . It will also eliminate the n eed for a transitional period and 
will advance the implementation of urgently needed provisions by approximately two years. 
7.8.4.  Sector summary 
Chemicals, Pesticides, Biocides and Biotech nology sector of EC environmental law is 
characterised by substantial ne w developments. In the chemi cals sector, as REACH main 
obligations started applying on June 2008 suffici ent information on the implementation is not 
yet available and still full compliance has not been achie ved concerning introduction of 
penalties. Concerning th e biotechnology sector, the ove rall situation as regards 
implementation is seen as poor; therefore the ma in priority of the Commission is to achieve 
full conformity by all Member States. As rega rds pesticides and biocides, a review of the 
current legislative framework showed that improvements are necessary; therefore a new 
Framework Directive will be adopted in the fi rst half of 2009 and the Commission aims to 
present a proposal for a revision of the Biocides Directive. 
EN 195   EN 7.9. Governance and Environmental Liability 
7.9.1.  Current position 
7.9.1.1.  General introduction 
Governance 
Public access to environmental information has always been considered as a key issue to 
promote greater awareness of environmental ma tters, a free exchange of views and more 
effective participation by the public in envi ronmental decision-making. The EU decided as 
long ago as 1990 to introduce specific legislat ion; however, new impetus was given by the 
UN-ECE Aarhus Convention204. Directive 2003/4/EC205 was adopted to fully comply with the 
requirements of the Convention and constitutes a significant improvement compared with the 
previous legislation. The objectives  of the Directive are: a) to  guarantee the right of access to 
environmental information held by or for public authorities and to set out the basic terms and 
conditions of its exercise; and b) to ensure that, as a matter of course, environmental information is progressively av ailable and disseminated to th e public using in particular 
computer telecommunication or electronic tech nology. Both 'passive', i.e. upon request, and 
'active' dissemination of environmental informat ion are covered by the Directive. Its scope is 
broad due to the fact that 'environmental information' and 'public authority' are both given very wide definitions. The latter covers not on ly national, regional and local authorities, 
including public advisory bodi es, but also private non-governme ntal bodies providing public 
services or performing public administrative functions in relation to the environment. 
Directive 2003/4/EC had to be transposed by 14 February 2005. Despite some delays, all 
Member States have adopted the necessary legislation. It is, th erefore, applied throughout the 
EU.  
Environmental Liability 
Directive 2004/35/EC of the Eu ropean Parliament and of the Council on environmental 
liability with regard to the preventi on and remedying of environmental damage 
(Environmental Liability Directive)
206 establishes a framework fo r environmental liability 
based on the "polluter pays" principle, with a view to preventing and remedying 
environmental damage. 
7.9.1.2.  Report of work done in 2008 
Governance 
All the Member States have transposed th e Directive 2003/4/EC. Th e Commission contracted 
an external consultant to carry out studies dealing with the conformity of national 
implementing legislation with the requirements of the Directive. In 2008 these studies were 
                                                 
204 Convention on Access to Information, Public Particip ation in Decision-making and Access to Justice in 
Environmental Matters, done at Aarhus on 25 June 1998. The European Community signed this 
convention the same date of the adoption and has became party since 17 May 2005, following the 
Council Decision of 17 February 2005 (2005/370/EC) in OJ L124, 17.05.2005, p.1-3. 
205 Directive 2003/4/EC of 28 Janua ry 2003 on public access to environm ental information and repealing 
Council Directive 90/313/EEC, OJ L41 , 14.02.2003, p. 26. 
206 OJ L 143, 30.4.2004, p. 56. 
EN 196   EN finalised and examined by the competent services  of the Commission with a view to asking 
Member States for clarificati ons and comments on their legisl ation, where necessary. It is 
expected that the relevant letters will be sent to  most of the Member States in the first half of 
2009. 
While the Commission services have receiv ed a certain amount of requests from public 
authorities for interpretation co ncerning certain issues of the Directive 2003/4/EC, it appears 
that few petitions submitted to the European Par liament raised problems of its application in 
the Member States. On the basis of information available or supplementary documents supplied in the framework of the petitions, th ere was no evidence that public authorities 
applied the Directive incorrectly. 
Environmental Liability 
The Environmental Liability Di rective was to be transposed  by 30 April 2007 at the latest. 
However, only four Member States had notifie d complete transposition by this transposition 
deadline, consequently first warning letters were addressed to 23 Me mber States. In 2008 a 
second warning letter was addressed to 16 Me mber States. On 26 June 2008 the Commission 
decided to refer to the European Court of Justice (ECJ) 9 Member States which still failed to transpose the Directive.  By the end of 2008, still seven Memb er States failed to transpose or 
completely transpose the Directive (Austria , Finland, France, Greece, Luxemburg, Slovenia 
and the United Kingdom) and in December 2008, the ECJ rendered its first judgments for failure to transpose the ELD concerning Finland (C-328/08) and France (C-330/08).  
The Commission commissioned an exploratory study in view of  the reporting obligation on 
the effectiveness of the ELD in  terms of actual remediation of  environmental damages and on 
the availability at reasonable costs and on conditions of insurance and other types of financial 
security fort the activities covered by the scope of strict liability of  the ELD. Within this 
study, two questionnaires were addressed to Member States and the insurance sector, 
interviews were carried out with a large numbe r of companies in the EU and a verification 
workshop was held with all stakeholders in  June 2008. The study was finalised in August 
2008
207. 
7.9.2.  Evaluation based on the current situation 
Governance 
It appears that, in general, pub lic authorities at national and regional level have applied the 
Directive correctly. However, given the Directiv e's wide scope, it is less clear whether, at 
local level, notably in small municipalities or entities, public access to environmental 
information is always provided according to the relevant standards. 
In addition, petitions to the European Parliament and requests for clarification to the 
Commission services show that public authorities need to make greater efforts to inform the 
public adequately of their rights under the Directive. 
Moreover, public authorit ies need to pay specific attention to the active dissemination of 
environmental information to the public, in particular, through the Internet. Even if the 
                                                 
207 European Commission, "Financial secur ity in Environmental Liability Directive," final report August 2008. Available on the 
Internet at: < http://ec.europa.eu/environment/le gal/liability/pdf /eld_report.pdf >. 
EN 197   EN Commission services do not have  a systematic overview of th e situation, it appears that 
further progress is needed. 
Environmental Liability 
The Directive is relatively new and at present not even completely transposed by all Member 
States (see ongoing infringement cases above) . However, a first evaluation of important 
aspects of the ELD will be presented in the above mentioned Commission report on the effectiveness of the ELD and availability of  financial security which is due by April 2010. 
Another, broader applicati on report of the Commission w ill be due by April 2014, based on 
Member States application reports. 
Apart from the application of the significance criteria (Annex I of the Directive) and the 
application of the appropriate measures to ensure the remedying of environmental damage 
('primary', 'complementary' and 'compensator y' remediation according to Annex II of the 
Directive), the proper functioning of financial security instruments will be significant for 
successful implementation of the ELD in the Me mber States. Therefore, the Commission has 
given support to the Member States through interpretation of open questions in expert 
meetings and in particular through a project developing a tool-kit on the remediation methods. 
The results of the research programme  REMEDE were made available in 2008
208. 
7.9.3.  Evaluation results 
7.9.3.1.  Priorities 
Governance 
The priority for the Commission is to verify th e conformity of national legislation with the 
requirements of the Directive 2003/ 4/EC and ensure that the dir ective is applie d correctly in 
practice by public authorit ies at all levels.  
Environmental Liability 
The first priority is to ensure that all Member States complete transposition of the ELD as 
soon as possible. Therefore, the horizontal non-communication cases were rapidly processed 
in 2008 and will be continued in 2009 until the last Member States transposed the Directive. 
The next priority for the Commission is to ensure that the Environmental Liability Directive is correctly transposed in all Me mber States and in cooperation with Member St ates assess the 
national transposition measures and where necessary launch legal enforcement actions. 
Another priority for 2009 results from the mentioned reporting obligation before April 2014. 
7.9.3.2.  Planned action (2009 and beyond) 
Governance 
As mentioned above, in 2009 a dialogue will be  set up with Member States to address 
transposition and interpretation of certain provisions of the Directive or concrete difficulties encountered by public authorities in enforcement. 
                                                
 
208 Available on the Internet at the official Website of Resour ce Equivalency Methods for Assessi ng Environmental Damage in the 
EU (REMEDE): < http://www.envliability.eu/ >. 
EN 198   EN In addition, according to the Directive, no late r than 14 August 2009 Member States have to 
communicate to the Commission their reports on th e experience gained in its application. A 
Guidance Document for these reports was draw n up by the Commission, in co-operation with 
Member State experts, in 2007. These re ports will give the Commission a better 
understanding of the current s ituation. Based on the national reports, the Commission will 
report to the European Parliament and the Council. 
Additional discussions, where appr opriate, will be held with Member State experts in the 
framework of an Expert Group, chaired by the Co mmission, dealing with issues related to the 
Aarhus Convention. 
Environmental Liability 
The Commission's efforts need to continue to ensure that the ELD is fully and correctly 
transposed. Apart from continuing the hor izontal non communicati on action, the Commission 
will therefore in 2009 examine the conformity of the transposing legislation of the Member 
States and take enforcement action as necess ary. In this context, the Commission will 
continue to discuss questions of interpretation and applicati on of the ELD with government 
experts. 
The Commission will finalise the draft report on th e effectiveness of the ELD and availability 
of financial security by the end of 2009 in vi ew of its presentation in April 2010. To this 
purpose, another more comprehens ive study is being carried out this year incl uding broader 
stakeholder consultation and a workshop. The st udy will be complemented by meetings with 
government experts in order to collect and verify the gathered information. 
7.9.4.  Sector summary 
Overall, Member States apply the Directive on access to environmental information correctly, 
but the existing practice i ndicates that public authorities of a ll levels, in partic ular lower ones, 
need to make greater efforts to inform and re spect the right of the public under the Directive. 
Full transposition of the Directive in the Member States is a priority for the Commission and 
in 2009 a dialogue with Member States will be set up to address that. ELD is relatively new 
and not fully transposed by all Me mber States; therefore the Commi ssion's priority is to firstly 
achieve a full transposition by all Member Stat es and consequently carry out the first 
evaluation of ELD that will be avai lable in the first half of 2010. 
8. INFORMATION  SOCIETY  AND  MEDIA 
8.1. General Overview  
In Information society and media  the regulatory framework for electronic communications 
continued to face a sizeable volume of inco rrect implementation issues, despite genuine 
efforts on the part of most Member States. One challenge has been the independence of 
national regulatory authorities in certain Memb er States. Member States must ensure the 
independence and effectiveness of  regulators, which are a prerequisite for ensuring fair and 
effective regulation of the sector. Ensuring  the effective implem entation of consumer 
protection rights, such as the ability to be located when calling the European emergency 
number '112', remains a key challenge for se veral Member States and the market players 
concerned. The increasingly challenging economic  environment makes it more necessary than 
ever to ensure the correct implementation of the internal market acquis . Amendments to the 
EN 199   EN existing 2002 framework, as well as Commissi on guidance on e.g. next generation networks 
and tariffs for termination of calls on mobile ne tworks, are expected to enhance predictability 
and legal certainty, and to create a level playin g field in the EU's single market for electronic 
communications. In the audiovisu al sector, while commercial communications continued to 
be an issue, preventive work has been undertak en with Member States aiming at ensuring 
effective implementation of the Audiovisual Media Services Direc tive by the end of 2009. 
Regarding the Public Sector Information Dir ective, main challenges include licensing and 
charging models that facilitate th e availability and re-use of public information resources. 
8.2. Electronic communications 
8.2.1.  Current position 
8.2.1.1.  Existing measures in force 
The Commission's overarching initiative for information society and media policies, i2010209, 
confronts the challenge of ra pid convergence and technologi cal change with a regulatory  
framework for electronic comm unications that promotes competition, investment, innovation, 
the single market, and consumer benefits. Enforc ing full and effective implementation of the 
regulatory framework in electr onic communications is therefor e essential for the sector’s 
contribution to the overall Lisbon goals. 
The EU regulatory framework for electronic communications came into force in 2002. It 
consists of five Directives210. The Framework Directive outlines the general principles, 
objectives, and procedures. The Authorisatio n Directive creates a regime of general 
authorisations for providers of communications services. The Access and Interconnection 
Directive sets out rules for a multi-carrier ma rketplace, ensuring, in particular, access to 
networks and services and interoperability. Th e Universal Service Directive guarantees basic 
rights for consumers and minimum levels of av ailability and affordability. The e-Privacy 
Directive covers protection of privacy and personal data co mmunicated over public networks. 
Transposition of the regulatory framework into the national law of the 27 Member States was 
completed in 2007 with the adoption of primar y legislation by Bulgaria and Romania. 
The Roaming Regulation211, which entered into force in  June 2007, has ensured that 
consumers continue to benefit from significant cost savings when maki ng or receiving calls 
while in another Member State. The Roam ing Regulation introduced maximum ceilings 
(Eurotariff)212 on retail prices for making and receiving calls in the EU and improved 
transparency for consumers by ensuring that operators send pricing information to their 
customers when they cross a border.  
                                                 
209 COM(2005) 229 
210 Directive 2002/21/EC (Framework Directive), Directive 2002/20/EC (Authorisation Directive), 
Directive 2002/19/EC (Access Dir ective), Directive 2002/22/EC (Universal Service Directive) and 
Directive 2002/58/EC on privacy and electronic communications (further referred to as the ePrivacy 
Directive). 
211 Regulation (EC) No 717/2007 of the European Parliament and of the Council of 27 June 2007 on 
roaming on public mobile telephone networks within the Community and amending Directive 2002/21/EC , OJ L 171, 29.6.2007, p. 32. 
212 It is estimated that over 400 million EU citizens could benefit from the ‘Eurotariff’ which makes it the 
standard default tariff in Europe. 
EN 200   EN The European Parliament and the Council adopted on 30 June 2008 Decision 
No 626/2008/EC on the selection and au thorisation of systems providing mobile satellite 
services  (MSS)213, setting out a transparent and legally binding framework for the coordinated 
selection and authorisation of pan-European MSS systems. This was followed by a call for 
applications for pan-European systems providi ng mobile satellite services (MSS), published 
by the Commission on 7 August 2008214. Effective implementation of  the Selection Decision 
by Member States will be monito red closely by the Commission.  
The 2004 and 2005 Commission radio spectrum harmonisation decisions215 have been 
implemented by all Member States, except Bulg aria which has yet to implement Decision 
2005/928/EC. The 2006 decisions216 have been implemented in most Member States, except 
for Belgium regarding Decision 2006/771/EC and Latvia regarding both Decisions. As for the 
2007 decisions217, Latvia and Slovakia have not impl emented Decision 2007/90/EC. A similar 
situation could be observed for Decision 2007/98/EC in Hungary, and for Decision 
2007/131/EC in Bulgaria and Romania. Latv ia did not provide information on the 
implementation of Decisions 2007/98/ EC and 2007/131/EC. Decision 2007/344/EC on 
harmonised availability of information regard ing spectrum use within the Community had not 
been completely implemented in  as many as 20 Member States. 
In 2008, the Commission adopted the followi ng six spectrum harmonisation decisions: 
Decision 2008/294/EC of 7 April 2008 on harmoni sed conditions of spectrum use for the 
operation of mobile communication services on aircraft (MCA services) in the Community; 
Decision 2008/411/EC of 21 May 2008 on th e harmonisation of the 3400 - 3800 MHz 
frequency band for terrestrial systems capab le of providing electronic communications 
services in the Community, 2008/432/EC of 23 May 2008 amending Commission Decision 
2006/771/EC on harmonisation of the radio spectr um for use by short-range devices (SRD); 
Decision 2008/477/EC of 13 June 2008 on  the harmonisation of the 2500-2690 MHz 
frequency band for terrestrial systems capab le of providing electronic communications 
services in the Community; Decision 2008/671/ EC of 5 August 2008 on the harmonised use 
of radio spectrum in the 5875 - 5905 MHz frequenc y band for safety related applications of 
                                                 
213 OJ L 172, 2.7.2008, p. 15. 
214 OJ C 201, 7.8.2008, p. 4. 
215 Commission Decision 2005/928/EC of 20 December 2005 on the harmonisation of the 169,4-169,8125 
MHz frequency band in the Community (frequency band originally designated for the ERMES paging 
system); Commission Decision 2005/513/EC of 11 July 2005 on the harmonised use of radio spectrum 
in the 5 GHz frequency band for implementation of Wireless Access Systems including Radio Local Area Networks (WAS/RLANs); Commission Decision 2005/50/EC of 17 January 2005 on the 
harmonisation of the 24 GHz range radio spectrum band for the time-limited use by automotive short-
range radar equipment in the Community; and Commission Decision 2004/545/EC of 26 July 2004 on the harmonisation of radio spectrum in the 79 GHz range for the use of automotive short-range radar 
equipment in the Community. 
216 Including Commission Decision 2006/771/EC of 9 November 2006 on the harmonisation of the radio 
spectrum for use by short-range devices (SRD) and Commission Decision 2006/804/EC of 23 
November 2006 on harmonisation of the radio spectrum for radio frequency identification (RFID) 
devices operating in the ultra high frequency (UHF) band. 
217 Commission Decision 2007/90/EC of 12 February 2007 amending EC Decision 2005/513/EC of 11 July 
2005 on 5 GHz WAS/RLAN, Commission Decision 2007/98/EC of 14 February 2007 on the 
harmonised use of radio spectrum in the 2 GHz frequency bands for the implementation of systems 
providing mobile satellite services (MSS), Commission Decision 2007/131/EC of 21 February 2007 on 
allowing the use of the radio spectrum for equipment using ultra-wideband technology in a harmonised manner in the Community (UWB) and Commission Decision2007/344/EC of 16 May 2007 on 
harmonised availability of information regarding spectrum use within the Community. Decision 
2007/344/EC entered into force on 1 January 2008. 
EN 201   EN Intelligent Transport Systems (ITS); and D ecision 2008/673/EC of 13 August 2008 amending 
Decision 2005/928/EC on the harmonisation of the 169,4-169,8125 MHz frequency band in 
the Community. 
8.2.1.2.  Report of work done in 2008 
In line with the Commission Communication on better monito ring of the application of 
Community law218, the Commission services have continued to avoid the need for recourse to 
infringement proceedings by providing genera l guidance on implementation requirements via 
the Communications Committee (COCOM) and the Radio Spectrum Committee (RSC), and 
by making use of bilateral contacts with the rele vant national authorities. The main issues 
discussed at the 2008 COCOM meetings were th e implementation of the European emergency 
number '112', the implementation of the number range '116', and the Community consultation procedure involving the national regulatory authorities and the Commission, which aims at 
consolidating the internal market for electr onic communications (Art icle 7 procedure).  
At the heart of the 2002 regulatory framew ork for electronic communications lies the 
principle that undertakings should not be subject to ex ante regulatory obligations unless they 
have been found to be dominant  in a relevant market, on th e basis of a thorough market 
review by their national regulatory authority (NRA). Following the adoption of the revised 
Commission Recommendation on relevant ma rkets of 17 December 2007, NRAs were active 
in carrying out market review s in 2008, leading to progress  on the second round of market 
analysis. Following some recent notifications al l Member States have now completed the first 
round of market analyses with the ex ception of  Bulgaria and Romania. 
An increasing need for consumer protectio n goes hand in hand with the growth and 
diversification of electronic communication services and a growing number of service 
providers. A mechanism to settl e disputes between consumers and service providers that 
offers a more flexible, cheaper less expensive, and less formal alternativ e to court proceedings 
is therefore required und er the Universal Servi ce Directive. Although prac tical applications of 
the dispute resolution mechanism vary from one Member State to another, this has produced 
overall positive results, and a huge number of c onsumer complaints are dealt with at national 
level. 
Finally, the Commission services continued to m onitor the general state of implementation of 
the regulatory framework, in close contact with the national authorities and other 
stakeholders, when preparing for the Commi ssion’s sector specific annual Progress Report 
addressed to the European Parliament, the Council, the European Economic and Social 
Committee and the Committee of the Regions
219. The Commission continued to monitor 
implementation of the Roaming Regulation whic h in general continued to run smoothly. In 
that context, the Commission worked closely with the European Regulators Group which, by 
means of its extensive six-monthly roaming data  collection exercise, provided a key input to 
the Commission's monitoring activities as well as the preparations for its review of the 
Regulation.  
Enforcing effective implementation of th e regulatory framework for electronic 
communications continued to be  a priority in 2008. The Comm ission monitors the correct 
                                                 
218 COM(2002) 725, of 11 December 2002. 
219 “Towards a Single Europe an Telecoms Market (14th Progress Report)”, COM(2009) 140Final of 24 
March 2009. 
EN 202   EN application of the provisions contained in the EU  regulatory framework, al so via contacts with 
stakeholders and complaints received from EU  citizens. In the area of Information Society 
and Media, the new online web tool (the EU Pilot), set up to provide quicker and better 
solutions to problems arising in the application of EU laws, has been increasingly used to facilitate the contacts with the 15 participati ng Member States on the implementation of the 
EU rules relating e-communications. Overall, duri ng the first year since the launching of the 
project in April 2008, 11 cases have  been opened in the EU Pilot. 
During 2008, the Commission opened six new pro ceedings, while seven pending cases were 
taken to the second phase with a reasoned opinion  being sent to the Member States concerned. 
The Commission decided to refer si x cases to the Court of Justic e in 2008. At the same time, 
the Commission decided to close 13 proceedings  following action by the Member States. 
Finally, although all 27 Member States had comple ted formal transposition of the regulatory 
framework in 2007, there were st ill 28 proceedings for incorre ct implementation pending at 
the end of 2008.  
New proceedings opened in 2008 focused on th e independence and ef fectiveness of the 
telecom regulators in Luxembour g (now closed), Latvia, Lithua nia and Sweden. Furthermore, 
the Commission started to verify the complianc e of restructuring measures taken in 2008 and 
which could have had an impact on the independ ence of the regulatory au thorities in Romania 
and Slovakia. As for consumer issues, a new infringement proceeding was launched due to 
the Commission's concerns related to the hand ling of the single European emergency number 
112 in Italy. 
Out of the six cases which the Commission decide d to refer to the Court of Justice in 2008, 
two concerned the non-availability of caller location information for calls to emergency 
number 112 (Bulgaria, and Romania), and one  concerned the indepe ndence of th e national 
regulatory authority (Pol and). Universal service issues in relation to the de signation of the 
universal service provider and the financing mechanism were also high on the Commission's 
agenda given its negative impact for consumers,  and thus infringement proceedings continued 
against several Member States. Portugal and Spain were sent reas oned opinions, whereas 
Belgium was referred to the Court of Justice. Finally, Poland and Cyprus were referred to the Court for persistent deficiencies relating t o, respectively, broadband retail regulation and 
rights of way regime for mobile operators. 
The Commission welcomed the progress made by Me mber States and continued to apply its 
policy of closing cases as soon as the problem s were resolved. In 2008, a total of 13 cases 
were closed following progress in the implem entation process. Amongst those, two cases 
were closed following the intr oduction of effective caller lo cation information for 112 in 
Latvia and Poland. Following consistent ac tion by the Commission, the single European 
emergency number 112 is now available in all Me mber States, though there is still work to be 
done to ensure the proper functioning of the Eu ropean Emergency number on issues such as 
the availability of caller locat ion information. All but one case concerning the completion of 
the first round of market reviews could be cl osed. A case against Bulgaria relating to the 
independence and functioning of the national regu lator, and a case against Slovakia relating to 
the separation of regulatory functions were also closed, as the issues raised by the 
Commission were resolved. 
Comprehensive directory inquiry services were  made available at the beginning of 2008 in 
Poland, and the relevant case was subseque ntly closed by the Commission. One case 
concerning must-carry was closed (Finland). Finally, a case against France regarding an 
EN 203   EN improper universal service designation mech anism was closed, as France changed its 
legislation, following the European Court of Ju stice ruling. The remaini ng closed cases dealt 
with non-conformity issues in several other Member States (Germany, Latvia, and Finland). 
However, not all Member States have complied with the regulatory framework in due course, 
and as of early 2009 the Court of  Justice ruled on four 112 cases, finding breaches of the EU 
law since caller location information was only partially available in Slovakia, Lithuania, the Netherlands and Italy. Whilst the Slovakian ca se has been solved in the meantime, the 
Commission is closely following the other cases, in order to ensure full respect of the 
judgments as required under Article 228 of the Treaty.  
By the end of the reporting year the Commission has opened some 160 infringement 
proceedings under Article 226 of the Treaty si nce the date of application of the new 
regulatory framework. In more than 100 cases this was due to failures to implement the 
regulatory framework correctly. While all EU 27 Member States have been concerned by 
enforcement action, a significant number of  issues have been settled since. 
The relatively high number of non-conformity cases is th e result of the Commission's 
proactive monitoring policy which entails a systematic conformity assessment of the national transposition measures no tified to the Commission. This appro ach has proven to be critical for 
electronic communications, being a highly in novative and dynamic sector which requires 
swift action to ensure regulatory consistency. The conformity assessment for each Member State is carried out on the basis of correlation tables wh ich had been discussed and 
communicated to the Member States via the Communications Committee already before the date of application of the current regulatory framework. 
In addition to the pending infringement procee dings, there were nine complaints pending at 
the end of 2008. These complaints were mainly related to authorisation issues, including 
frequency management, and to obligations resu lting from the Universal Service Directive. 
The Commission continues to freq uently issue press releases at  various stages of the opened 
proceedings. These press releases are avai lable on the implementation and enforcement 
website dedicated to Information Society and Media sector
220 together with overview tables 
for all cases, which are updated regularly. 
In 2008, EIPA and the Commission organised a seminar for national judges and the NRAs on 
legal issues related to the implementation of the regulatory framework. The aim was to raise 
awareness on (i) the goals of the regulatory framework for e-communications and Article 7 
procedures and (ii) on the role of national cour ts in furthering consistency and legal certainty 
on the telecommunications markets. 
Petitions  
In 2008, four petitions on the regulatory framew ork were registered. Th ese petitions involved 
telecom prices in Estonia, international roaming charges in the Czech Republic, discrimination by telecom companies in Sweden, and liability of telecom companies in several EU countries. All were answered w ithout opening an infringement proceeding. 
European Court of Justice
 
                                                 
220 http://ec.europa.eu./informatio n_society/policy/ecomm/implemen tation_enforcement/index_en.htm  
EN 204   EN Finally, the European Court of Justice issued several important judgments on substance in the 
electronic communication area in  2008, in particular on request for preliminary ruling by a 
national court or tribunal under Article 234 of the Treaty. These covered amongst others the 
right of use of TV frequencies (C-380/05 - Centro EUROPA 7 ), the right of appeal (C426/05 
– Tele2 Telecommunication ), licence fees (C-296/06 – Telecom ITALIA ) and must-carry 
obligations (C-336/07 – Kabel Deutschland Vertrieb ). 
8.2.2.  Changes underway 
In order to realise the full potential of the in ternal market, more cons istency of application 
across the EU and a strengthening of the fram ework in areas such as the application of 
remedies in termination and broadband ma rkets, spectrum management, swift number 
portability and privacy over electronic communications are needed. These needs were 
considered in the Review of the current regulatory framework. 
8.2.2.1.  New measures recently adopted 
In accordance with Article 25 of the Framew ork Directive, the Commission proposed a 
review of the re gulatory framework in November 2007221. The proposals aim to consolidate a 
competitive internal market through more consis tent national regulatory approaches, reinforce 
consumer protection and users' rights, and provi de for more effective spectrum management 
and implementation. The European Parliament and the Council adopted these reforms on 25 
November 2009.  
During the year, the Commission carried out an extensive review of the Roaming Regulation 
including a public consultation. The Commission concluded that nationa l level trends in 
prices for data and SMS are not reflected in prices for SMS roam ing and to some extent prices 
for data roaming services which also remain unjustifiably high across the EU. Therefore, the 
Commission made a proposal to the Europe an Parliament and Council to extend the 
regulation by a further three years up to June 2013 and to include SMS and data roaming services in addition to voice. The European Parliament and Council adopted the Regulation 
on 18 June 2009
222. 
8.2.2.2.  Volume of enquiries and priorities 
In the light of complaints and issues rais ed by market players and national regulatory 
authorities, the priorities will most likely remain the same as in the reporting year: the functioning of the nationa l regulatory authorities and cons umer protection rights. Regarding 
the latter, the Commission is paying increasing attention to consumers' privacy, based on the 
ePrivacy Directive. Finally, compliance with j udgments of the Court of Justice might become 
an issue as case law develops in the area. 
The number of cases of infringements, complaints , enquiries and petitions is expected to stay 
at the same level as in previous years. Pr iorities may have to evolve depending on the 
                                                
 
221 Commission proposal for a directive of the European Parliament and of the Council, SEC(2007) 1472 
and SEC(2007) 1473 and Proposal for a regulation of the European Parliament and of the Council 
establishing the European Electronic Communications Market Authority COM(2007)699, for an overview, see website of DG Information Society: 
http://www.ec.europa.eu /information_society/policy/ecomm /library/proposals/index_en.htm 
222 http://ec.europa.eu/information_society/activities/roaming/regulation/index_en.htm#new_rules. 
EN 205   EN amendments eventually adopted by the co-legislators in the context of the review of the 
regulatory framework. 
8.2.3.  Evaluation based on the current situation 
Overall, the implementation of the regulatory fra mework is working to bring competition to 
electronic communications markets, with resulti ng benefits to consumer s in terms of prices 
and innovative converged services. Examples of best practice are available from every 
Member State across the range of regulator y and market issues. However, there is 
considerable scope for further benefits to flow  from a reinforced sing le market, strengthened 
competition and a reduction in the regulatory burden. 
While all issues of late transposition and more  than two-thirds of the implementation issues 
addressed by formal infringement proceedings  have been settled, a significant number of non-
conformity and incorrect application issues remains. These issues require attention and 
appropriate follow-up with a continued focus on the functioning of the national regulatory 
authorities and consumer protection rights. Th e Commission's legislat ive proposals currently 
before the European Parliament and Council seek  to address identified weaknesses of the 
2002 regulatory framework, while retain ing its basic overall concept. 
8.2.4.  Evaluation: priorities and planned action (2009 and beyond) 
Priorities for 2009 will likely remain similar to  those of the reporting year. The number of 
cases is expected to remain about the same as in the reporting year. 
In electronic communications, monitoring is expect ed to focus again on structural issues, such 
as the functioning and the independence of th e national regulatory au thorities. Greater 
attention is being paid to the full application of the Community consultation procedure involving national regulatory authorities and th e Commission which aims to consolidate the 
internal market for electronic communications (Article 7 procedure).  
A second priority concerns the protection of consumer rights, with a special focus on the full 
functioning of the European emergency numbe r '112'. The Commission will continue to 
closely monitor the implementation of the Roaming Regulation which has ensured that 
consumers benefited from significa nt cost savings when making or receiving calls while in 
another Member State. 
Priorities may evolve depending on the final shape of the amendments to the regulatory 
framework. Preventive work, such as guidelines a nd technical meetings, is expected to start as 
soon as possible after the adoption of these amendments. 
8.3. The Audiovisual and Media 
8.3.1.  Current position 
8.3.1.1.  Existing measures in force 
The main instrument is the Television without  Frontiers (TWF) Directive which was modified 
into the Audiovisual Media Services Directive
223 in 2007 (hereafter the “AVMS Directive”). 
                                                 
223 Directive 89/552/EEC of the European Parliament and of the Council of 3 October 1989 on the 
coordination of certain provisions laid down by law, regulation or administrative action in Member 
EN 206   EN It combines the country of origin principl e with a minimum harmon isation of the laws 
applicable to all audiovisual media servic es (television and on- demand). Non-binding 
measures include the Recommendation on Film Heritage224 and the Recommendation on the 
protection of minors and human dignity in  audiovisual and information services225. 
8.3.1.2.  Report of completed work in 2008 
Three new cases were opened (two complaints and one identified infringement, all referring 
to TWF). One case was closed. It was decided to  refer Spain to the Court of Justice according 
to Article 226 of the Treaty in  another case concerning the incorrect application of the 
quantitative rules on TV advertis ing. After expiration of the fram ework contract, an invitation 
to tender for studies on the application of audiovisual commercial communication rules in 
Member States was issued and finally awar ded to the contractor GfK Audimetrie. The 
monitoring will take ac count of the extended scope of the AVMS Directive (now including 
on-demand audiovisual media services) as well as  qualitative aspects of TV advertising such 
as the safeguards for product placement and the rules on protection of minors. 
In a judgment adopted on 13 March 2008, the Eu ropean Court of Ju stice narrowed the 
meaning of decision of ‘direct a nd individual’ concern to a natura l or legal person. It clarified 
under which conditions a natural or legal pe rson could challenge the decisions of the 
Commission concerning the application of the pr ovisions on the retransmission of events of 
major importance for the society (Article 3a TWF Directive). Two of these decisions 
concerning the UK and the Belgian lists of events  of major importance for society have been 
challenged before the Court of First Instance. 
On 22 July 2008, the Commission adopted the Ei ghth Report relating to the promotion of 
European works and independent productions (Ar ticles 4 and 5 of the TWF Directive) for the 
period 2005 – 2006. The first implementation report  on the Recommendati on on film heritage 
was published in August 2008. 
The amending Directive was adopted  at the end of 2007 so that Me mber States have until the 
end of 2009 to transpose the AVMS Directive. Qu estions faced by all Member States in the 
transposition process were  clarified at an early stage in meetings of the Contact Committee set 
up under Article 23a of the Dir ective. The Contact Committee met four times in 2008. An 
unofficial consolidated version of the AVMS Directive was published at the end of 2008. 
The AVMS Directive changed the number and orde r of subsidiary jurisdiction criteria for 
satellite retransmissions. A non- coordinated approach of Memb er States implementing the 
Directive during the transpositi on period could have led to ca ses of double jurisdiction or a 
situation where no Member State claims ju risdiction. Therefore, the Contact Committee 
agreed on a coordinated entry in to force of national measures implementing this provision at 
the end of the transposition period set for 19 December 2009. 
                                                                                                                                                         
States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) 
as last amended by Directive 2007/65/EC of 11  December 2007, OJ L 332 of 18 December 2007. 
224 Recommendation of the European Parliament and of the Council of 16 November 2005 on film heritage 
and the competitiveness of related industrial activities, OJ L 323 of 9 December 2005, p. 57. 
225 Recommendation of the European Parliament an d of the Council of 20 December 2006 on the 
protection of minors and human dignity and on the right of reply in relation to the competitiveness of 
the European audiovisual and on-line information services industry, OJ L 378 of 27 December 2006, p. 
72. 
EN 207   EN 8.3.2.  Changes Underway 
8.3.2.1.  Recently adopted measures 
8.3.2.2.  New measures due to be adopted 
The Commission is working on th e adoption of a proposal for a codified version of the 
AVMS Directive. It is expected to be adopted  in a fast-track co-d ecision procedure by the 
Council and the European Parliament. 
After discussion in the Contact Committee it wa s decided to produce a document identifying 
the media services that need special attention at the moment of entry into force of those 
national implementing measures which will change  jurisdiction for satellite retransmissions 
(Article 2(4) AVMS Directive). 
8.3.2.3.  Volume of enquiries and priorities 
In the light of complaints and parliamentary que stions received so far, attention will most 
likely be on the following areas: television adve rtising, protection of minors, non-incitement 
to hatred, promotion of European and independent works, and jurisdiction. The issue of events of major importance for society, with the cases brought before the Court of Justice 
against the UK and Belgian measures, will also be  followed closely. In general, the number of 
cases of infringements and petitions  is expected to stay at the sa me level as in previous years. 
There was, however, an increase in 2008 of comp laints on alleged hate speech as well as 
pornographic content transmitted during daytim e and without encryption via satellite 
broadcasts. The monitoring of audiovisual co mmercial communication rules will be extended 
(see above), possibly involving furt her infringement proceedings.  
8.3.3.  Evaluation based on the current situation 
The application of the provisions of the present regulatory framewor k in force (i.e. prior to the 
adoption of the amending Directive) has been sa tisfactory. However, it remains necessary to 
carry out a close monitoring of  the application of audiovis ual commercial communication 
rules in the Member States. In addition, the eco nomic crisis could impa ir the Member States' 
monitoring capacities. 
In the past, there were cases wher e satellite channels tried to hi de their country of origin in 
order to escape regulation. With the change of subsidiary jurisdiction criteria for satellite 
retransmissions, it might be easier for those ch annels to change jurisdiction. Therefore, 
cooperation between national regulators and with the Co mmission should be further 
improved. 
8.3.4.  Evaluation results: priorities and planned action (2009 and beyond) 
Priorities for 2009 will likely remain similar to  those of the reporting year. The protection of 
consumer rights remains a key issue. Regardin g TV advertising, m onitoring will not only 
address quantitative restrictions but also qualitative rules e.g. the rules on the protection of 
minors and/or restrictions  on alcohol advertising. 
Building on the dialogue undertaken with Memb er States, preventive work will continue 
concerning the transposition of the AVMS Directive, in particular the exte nsion of its scope to 
cover on-demand services. 
EN 208   EN 8.4. Public Sector Information 
8.4.1.  Current Position 
8.4.1.1.  General introduction 
Public Sector Information (PSI) is the single largest source of information in Europe (e.g. 
maps and satellite images, legislation, statistics  and company registers) and is used as raw 
material for a variety of adde d-value products and services. Directive 2003/98 on the re-use 
of public sector information  (PSI Directive) aims at enhanc ing an effective cross-border re-
use of PSI and to limit distortions of competition in the Community market.  
The Directive is built around two pillars of th e internal market; tr ansparency and fair 
competition. It contains provisions on transpar ency of conditions and non-discrimination, on 
prohibition of cross-subsidies and exclusive ar rangements, on procedures regarding handling 
of re-use requests, on upper limits for charging, as well as on practical means to facilitate 
finding and using the material available for re-u se. Ultimately, the Directive aims at a change 
of culture in the public sect or, creating a favourable envir onment for the re-use of its 
information resources. 
The Commission applies the principles of th e PSI Directive also to its own documents 
through a Commission re-use policy. Commission Decisi on 2006/291/EC, Euratom goes 
beyond the Directive by applying charges based on (at most) marginal costs and by making all 
documents re-usable. Examples are EUROSTAT ’s statistical data, Commission translation 
memories, the EC law database EUR-Lex and studies.  
8.4.1.2.  Report of work done in 2008 
The deadline for implementing the PSI Direc tive by the Member Stat es was 1 July 2005. By 
May 2008, all Member States had notified fu ll implementation of the Directive.  
Infringement procedures under Article 226 EC for non-communication of national 
implementation measures were initially launched  against 15 Member States and completed by 
the end of 2007 when the Court of Justice gave  four judgments for failure to implement the 
Directive (AT, BE, LU and ES). Priority th en shifted in 2008 to en suring full and correct 
implementation of the Directive. The Commissi on pursued infringement procedures in 2008 
for incomplete and incorrect implementati on regarding Sweden and opened a new case 
regarding Poland. The evaluation of the conformity of the no tified national transposition 
measures continued during 2008 in parallel with the management of complaints.  
In conformity with the Comm ission Communication on better monitoring of the application 
of Community law (COM ( 2002)725), the Commission cont inued to pursue various 
accompanying measures in addition to formal in fringement procedures in 2008. It has been 
closely monitoring the implementation pro cess and providing technical assistance. 
In particular, the Commission pursued close bilate ral contacts with Member States in view of 
ensuring correct implementation and application of the Directive. These have led to legislative 
changes in several Member States, which had originally notified insufficient implementation measures. The Commission also organised and chaired the PSI Group for Member State 
experts and stakeholders in orde r to provide assistance regardi ng implementation issues and to 
facilitate the exchange of good practices. In  addition, the Commission contributed to 
awareness-raising and stimulation activities by  participating in seminars and workshops 
EN 209   EN organised in the Member States, networking across Europe and in a wider international 
context (notably the OECD) and co-funding a proj ect for promoting pan-European PSI re-use 
(ePSIplus, to be taken over in  2009 by the European PSI platform ) to further stimulate action 
and monitor progress towards a stronger and more  transparent environment for the growth of 
European PSI re-use markets. Finally, the Commission undertook studies on PSI re-use. 
A study assessing PSI re-use in the geographical,  meteorological and lega l information sectors 
was delivered end of 2008 and a study assessing the economic and social  value of the public 
domain, which includes a chapter on cultural c ontent with regard to the PSI Directive, was 
also conducted in 2008.  
The Commission also carried out preparatory work in view of reviewing the application of the 
PSI Directive, leading to a Commission Commu nication and Staff working document in 2009. 
In accordance with Article 13 of the Directive, th e review addresses, in particular, the scope 
and impact of the Directive. This includes the exte nt of the increase in re-use of public sector 
documents, the effects of the prin ciples applied to charging, and th e re-use of official texts of 
a legislative and administrative nature. The Commission also consulted the Member States 
and stakeholders in 2008 for the review.  
8.4.2.  Evaluation based on the current situation 
It should be noted that the PSI Directive was implemented by many Member States with 
considerable delay, requiring infringement procedures launched by the Commission and 
leading eventually to four judgmen ts of the Court of Justice. The situation is in the process of 
development of new "acquis" as it is a first ever Directive in this area, with notification of implementation measures recently being completed in all Member States. The number of complaints is still scarce and there are no pr eliminary rulings based on the Directive.  
A positive evolution and progress has taken place since the adoption of the Directive. The 
respondents to the public consultation consider ed that the PSI Directive has had positive 
effects on PSI re-use, which has also been confirmed by studies. However, the full potential 
of PSI re-use has not yet been  realised, implementation of the Directive and measures to 
facilitate re-use in the Member States are unev en, and barriers to re-u se still exist. Problems 
and action by Member States to redress them need to be carefully monitored and assessed.  
Commission action carried out in 2008 through infr ingement procedures, bilateral cooperation 
with Member States, facilitating the exchange  of good practices, and aw areness-raising have 
led to positive developments in some Member States, notably on the pr ocess of legislative 
changes in view of ensuring correct  implementation of the Directive. 
8.4.3.  Evaluation results 
8.4.3.1.  Priorities 
Priority has shifted now from the first stag e of adopting national implementation measures 
and notifying them to the Commission, to ensu ring compliance and effective application of 
the Directive in all 27 Member States. In the light of the eval uation of the conformity of the 
notified national measures and complaints, the ma in substance issues remain the same and are 
related notably to the scope and definitions, non-discrimination, charging, exclusive arrangements, and transparency. Efforts should now focus on full and correct implementation 
and application of the Directive, terminating exclusive arrangements, applying licensing and 
charging models that facilitate the availa bility and re-use of PSI, and ensuring equal 
EN 210   EN conditions for public bodies re-using their own documents and other re-users. Member States 
are encouraged to set up quick and ine xpensive conflict resolution mechanisms.  
8.4.3.2.  Planned action (2009 and beyond) 
It is important now to ensure compliance and effective application of the Directive in the 
Member States. The completion of implementation of the Directive in the Member States may 
have an impact on the number of complain ts received by the Commission in the future. 
Enforcement action through the launch of new infringement procedures for incorrect 
implementation and/or application of the Dire ctive is likely in 2009 and beyond. One area that 
the Commission will monitor particularly closel y concerns exclusive arrangements, for which 
the transitional period foreseen in Article 11 of the Directive expired at the end of 2008. An 
exercise investigating the extent of exclusiv e arrangements will be launched in summer 2009. 
The Commission will continue to  monitor closely implementati on issues, to facilitate the 
exchange of good practices and to provide technical assistan ce especially through close 
administrative cooperation with the Member Stat es, the PSI expert gr oup, as well as through 
other accompanying measures such as the Eur opean PSI platform. In addition, a thematic 
network on the legal aspects of PSI will be set up  to identify and discuss legal barriers to re-
use PSI in the digital environment and to suggest  ways to overcome them. A further review of 
the PSI Directive is envisaged by the Comm ission by 2012 when mo re evidence on the 
impact, effects and application of the Direct ive should be available.  Possible legislative 
amendments will be considered at that stage,  taking into consideration progress made in the 
meantime.  
8.4.4.  Sector summary 
A positive evolution and progress has taken place. However, the full potential of PSI re-use 
has not yet been realised  and implementation of the Directive in the Member States is uneven. 
Problems and action by Member States to redres s them need to be carefully monitored and 
assessed. The priority has shifted now fr om the first stage of adopting national 
implementation measures and notifying them to the Commission, to ensuring full compliance 
and effective application of the Directive in the Member States. The Commission will continue to closely monitor im plementation issues, to  launch infringement procedures where 
necessary, as well as to faci litate the exchange of good pr actices and awar eness-raising. 
8.4.5.  Measures in force 
More information on the re-use of public sector information: 
http://ec.europa.eu/information_society/policy/psi/index_en.htm
  
8.5. Electronic Signatures 
8.5.1.  Current Position 
8.5.1.1.  Existing measures in force 
The principal instrument is Directive 1999/93/EC on a community framework for 
electronic signatures226. The implementing measures incl ude the Commission Decision on 
                                                 
226 OJ L 13, 19.01.200, p.12 
EN 211   EN the minimum criteria for the designated bodies227 and the Commission Decision on the 
generally recognised standards for some electronic signatures products228. 
The general principles of the Di rective were indeed transposed by all Member States. There is 
no open infringement procedure. However, in 2008 one complaint229 was filed by a consumer 
association regarding implementa tion issues of Directive 1999/93/ EC in the Italian legislation 
which is still being investigated.  
Further, indirect aspects pertai ning to eSignature were identifi ed and are investigated in two 
additional complaints handled by Commission services. The former complaint concerns the 
legislation on the regist ration of medical device230 and involves Directives 90/385/EC and 
93/45/EC. The latter complaint concerns the legislation governing the refund of excise 
duties231 and pertains to Directive 2003/96/EC. 
8.5.1.2.  Report of work done in 2008 
In December 2008 the Commission adopted an Action Plan on e-signatures and e-
identification to facilitate the provision of cross-border public se rvices in the Single 
Market232.. The main objective of the action plan is to promote the implementation of 
mutually recognised and interoperable electroni c signatures and e-authen tication solutions in 
Europe. 
8.5.2.  Evaluation 
In 2006 the Commission acknowle dged, based on a report233 on the operation of  the Directive, 
problems  of mutual recognition and cross-border interoperability of eSignature. The 
Commission's position is that it intends to addre ss the legal, technical, and standardisation  
causes of these issues.  
Regarding legal issues, the Com mission stated that a formal analysis of the legislation 
transposing the Directive has not  been completed. As national laws may have evolved since 
the time of the transposition of the Directive,  the Commission is cons idering carrying out, in 
2009, a comprehensive review to re-assess th e compliance of Member States' national 
implementing measures. 
9. MARITIME  AFFAIRS  AND  FISHERIES 
9.1. Current situation 
9.1.1.  General introduction 
By virtue of the provisions of Articles 3 and 32 of the EC Treaty, Member States have 
transferred competence to the Community with re gard to the conservation and management of 
                                                 
227 OJ L 298, 16.11.2000, p.42 
228 OJ L 45, 15.07.2003, p.45 
229 2008/4516 
230 2007/4516 
231 2007/4715 
232 COM(2008)798 
233 Report on the operation of Directive 1999/93/EC on  a Community framework for electronic signatures 
– COM(2006)120 of 15.3.06 
EN 212   EN fisheries resources. Hence, in this field, legislative or prescriptive jurisdiction rests with the 
Community such that it is for the Community to  adopt relevant conservation and management 
measures while it remains for the Member Stat es to implement and enforce those measures. 
Consequently, the Common Fisheries Policy ha s been established in pursuance of the 
objectives laid down in Article 33 of the EC Treaty and, in its current version, it encompasses 
(1) a conservation regime together with a co ncomitant control and enforcement framework, 
(2) a structural policy through the new Europ ean Fisheries Fund, (3) a common organisation 
of the markets in fishery a nd aquaculture products and (4) the international dimension 
covering bilateral Fisheries Partnership Agreements, multilateral Regional Fisheries Management Organisations and conclusion of gl obal international treaties such as the 1982 
United Nations Convention on the Law of the Sea
234 and the 1995 Agreement on the 
implementation of the provisions of the Unite d Nations Convention on the Law of the Sea 
relating to the conservation and management of  straddling fish stocks and highly migratory 
fish stocks235. The full set of rules adopted under the Common Fisheries Po licy can be found 
on the following website: http://ec.europa.eu/fi sheries/index_en.htm .  
The conservation regime in its current vers ion is governed by the basic Council Regulation 
(EC) No 2371/2002 on the conservation and sustai nable exploitation of fisheries resources 
under the Common Fisheries Policy236, Article 2(1) of which spells out that the Common 
Fisheries Policy shall ensure exploitation of  living resources that  provides sustainable 
economic, environmental and social conditions. The control system is circumscribed by the provisions of Article 23 of Council Regulati on (EC) No 2371/2002 and Article 1 of Council 
Regulation (EEC) No 2847/93 establishing a c ontrol system applic able to the common 
fisheries policy
237, all of which place a general oblig ation on Member States to ensure 
effective control, inspection and enforcement of the rules of the Common Fisheries Policy. 
9.1.2.  Work done in 2008 
The Commission decided on a far-reaching re-o rganisation of the Directorate General 
responsible for maritime affairs and fisheries . The new structure became effective on 29 
March 2008 and replaced the former thematic st ructure by three geog raphical Directorates 
and one External Policy Directorate, all of which are complemented by a Directorate 
responsible for Policy Development and Co -ordination and supported by a Resource 
Directorate. The Legal Unit, which is also ta sked with the handling of State aid cases and 
infringement proceedings, has now  been incorporated into the Resource Directorate in order 
to secure appropriate se gregation of tasks. One other specific feature of  the new structure is 
that it has brought responsibilities for conser vation and for control and inspection closer 
together within the respectiv e geographical Directorates. 
Work mainly concentrated on the conduct of an unprecedented, sustained and, in the end, 
successful control campaign to protect the sensi tive bluefin tuna stocks, which resulted in the 
early closure of the purse seine fisher y by way of Commission Regulation (EC) No 
530/2008238. The closure was decided at the Commission' s own initiative in order to forestall 
an overrun of the relevant catc h quota and thus a serious thre at to the conservation of the 
                                                 
234 OJ L 179, 23.06.1998, p. 1 
235 OJ L 189, 03.07.1998, p.14 
236 OJ L 358, 31.12.2002, p. 59 
237 OJ L 261, 20.10.1993, p. 1 
238 OJ L 155, 13.06.2008, p. 9 
EN 213   EN stocks concerned and to honour the Community's  international obligations vis-à-vis the 
International Commission for the C onservation of Atlantic Tunas. 
In the process leading up to Council Re gulation (EC) No 338/2008 providing for the 
adaptation of the Polish cod quota on account of the overfishing in 2007239, Poland undertook 
to lay particular emphasis on control and agreed with the Commission inspectors on specific 
benchmarks for control and inspection activities in the Baltic Sea cod fisheries in 2008 and beyond. On 24 June 2008, Poland withdrew its app lication in Court Case T-379/07 where it 
had sought to obtain the annulme nt of the Commission decision to close the cod fishery for 
the remainder of 2007. Unlike 2007, Poland did close the cod fishery in good time in 2008. 
As yet another priority issue, the Commission prepared and presented a legislative proposal
240 
for a radical overhaul of the existing control and enforcement framework as laid down on Council Regulation (EEC) No 2847/93. This aims at  addressing the serious shortcomings of 
the Common Fisheries Policy in this field as iden tified by the Court of Auditors in its Special 
Report No 7/2007
241 and discussed at the Audit Pr ogress Committee in 2008. The proposed 
new rules are designed to strengthen the existing regulatory framework, to ensure a level playing field and to bring about a true comp liance culture all acro ss the European Union. 
Furthermore, the Commission initiated a full revi ew of the entire policy in order to prepare 
the ground for a root-and-branch reform. A firs t discussion took place at  the Fisheries Council 
in September 2008. A Green Paper has been i ssued on 22 April 2009 for the purposes of 
launching a broad public consultation on the reform of the Common Fisheries Policy. 
The Council adopted Regulation (EC) No 1005 /2008 establishing a Community system to 
prevent, deter and eliminate illegal,  unreported and unregulated fishing
242. This instrument 
will enter into force on 1 January 2010 and it w ill bring with it tough and innovative measures 
designed to bring under control fi shing practices that have beco me a scourge in international 
fisheries. 
Furthermore, the Council adopted Regulation (EC) No 1006/2008 concerning authorisations 
for fishing activities of Community fishing ve ssels outside Community waters and access of 
third country vessels to Community waters243. 
Infringement proceedings instituted against It aly on grounds of failure to ensure compliance 
with the driftnet ban under a pplicable Community rules was re ferred to the Court of Justice 
and now forms the subject-matter of Case C-249/08. 
The Commission decided to close infringeme nt proceedings against Cyprus, Malta and 
Portugal relating to non-communication of ca tch data during the bl uefin tuna fishing 
campaign in 2007. 
In proceedings instituted on grounds of insufficient  controls of landings of and trade in fishery 
products, the Court of Justice re ndered a judgment on 22 December 2008244 declaring that 
Spain has failed to fulfil its obligations unde r Regulation (EC) No 2847/93 by not carrying out 
                                                 
239 OJ L 107, 17.04.2008, p. 1 
240 COM(2008) 721 final of 14.11.2008 
241 OJ C 317, 28.12.2007, p. 1 
242 OJ L 286, 29.10.2008; p. 1 
243 OJ L 286, 29.10.2008, p. 33 
244 Case C-189/07, Commission v. Spain 
EN 214   EN sufficient controls over landi ngs and marketing of undersi zed fish and by not imposing 
dissuasive sanctions upon perpetrato rs who acted in breach of re levant Community rules. This 
judgment is also interesting inasmuch as the Court confirmed that th e subject-matter of a 
dispute may be extended to facts that occurred after the delivery of the reasoned opinion in so 
far as they are of the same kind and constitute the same conduct as the facts to which the opinion referred. It therefore held that, in this case, the Commission was entitled also to rely on inspection results obtained afte r the delivery of the reasoned opinion in order to illustrate a 
general failure on the side of  the Member State concerned. 
Pursuant to Council Regulation (EC) No 1447/1 999 establishing a list of  types of behaviour 
which seriously infringe the rules of the common fisheries policy
245, the Commission 
addressed a Communication to the Council and the European Parliament on the Member 
States' annual reports on such behaviour in 2006246. 
9.2. Evaluation 
The success of the policy on the sustainable mana gement of fisheries depends on effective 
implementation of the applicable Community rule s in this area and, more particularly, on the 
implementation of effective control, inspec tion and enforcement system by the Member 
States. Yet, Member States' complian ce record somewhat move in cycles. 
When France was sentenced to pay a financial penalty247 in 2005, all Member States, and 
certainly those, against which infringement proceedings had been instituted, adjusted their discharge of their obligations in  the fields of control and enforcement. This coincided with 
infringement proceedings targeting all deficiencies in the Member States' control systems. That approach did yield certain positive results.  In the meantime, there are signs of much 
more indulgence on the side of Member States. 
There is also a link with the status of fish  stocks and the endemic overcapacity of the 
Community fishing fleet. Where fishing opportunities decrease, Member States should step up 
their control and enforcement efforts. Yet, control and enforcement become politically 
unpopular in such situations and certainly so when  dire fish stock situations become coupled 
with an economic crisis. 
It is against this background that the Commi ssion proposed a complete overhaul of the control 
and enforcement framework. That proposal is also for the introduct ion of novel counter-
measures (e.g. financial measures, preventive measures deduction of overfished quantities). 
The new control system, once adopted by the Counc il, will facilitate a coordinated recourse 
either to infringement proceedings or to other instruments, or both, depending on the 
particularities of each case. That will secure a genuine compliance culture in the area of the 
Common Fisheries Policy, i.e. something which at best only exists in part in the currently 
prevailing circumstances. 
One particular challenge in fishery-related in fringement cases is that non-compliance mainly 
consists of an administrative malpractice on th e side of the Member State concerned. This 
requires a continuous deployment of inspecti on means and effort on the side of the 
Commission to assemble the necessary means of proof for the purposes of demonstrating that 
                                                
 
245 OJ L 167, 02.07.1999, p. 5 
246 COM(2008) 670 final of 04.11.2008 
247 Judgment of 12.07.2005 in case C-304/02, Commission v. France 
EN 215   EN the compliance failure is both general and ongoing. One other challenge resides in often very 
rapid developments on account of biological and environmenta l sustainability factors.  
9.3. Evaluation results 
9.3.1.  Priorities 
Next to the completion of the legislative process concerning the intended new Community 
control system and to the forthcoming reform of the Common Fisheries Policy, and based on 
the experience gained with infringement cases so far, a new more focussed and systematic approach to infringement proceedings shall be put into operation. That new approach is also 
designed to build upon the synergies derived fr om the re-organisation of the Directorate 
General for Maritime Affairs and Fisheries and ma inly rests on two basic ideas, namely (1) to 
link infringement proceedings to  the relevant policy priorities and (2) to make anticipatory 
planning the core of case-handling. The new appr oach will consist of the following building 
blocks: 
1. A systematic, generalised and immediate fo rmal follow-up to all discovered instances 
of non-compliance with applicab le rules by Member States at  the pre-contentious stage. 
Priority, in this context, shall be given to conservation, compliance and control issues as well 
as to issues pertaining to th e Community exclusive competence in the field of fisheries. 
2. A prioritised passage to formal infringe ment proceedings and a coordinated use of 
other instruments. It is at this stage that priority-setting will ta ke place by drawing upon the 
"critical mass" gathered by way of pre-contentious correspondence and contacts with Member 
States and in line with the 2007 Commission  Communication "A Eu rope of results – 
Applying Community Law
248; and 
3. Clear anticipatory planning and allocation of resources at the formal stage of 
infringement proceedings so that  there be a full overview of th e features of the case and the 
corresponding inspection needs at the time of the initiation of infringement proceedings in 
each case. 
9.3.2.  Planned action (for 2009 and beyond) 
The Commission will put into operation a new a pproach to infringement proceedings, which 
is capable of securing a strengthened infr ingement policy, in effective handling of 
infringement cases in a resource-efficient manner and ultimately a genuine compliance culture in the Common Fisheries Policy. Priority will  be given to recurrent problems putting the 
Common Fisheries Policy particul arly at risk (e.g.  illegal driftnetting, infringements in 
connection with fish stocks which are subject to recovery plans). 
The Commission will accompany the already ongoing legislative process concerning the 
intended new Community control system and, to the extent possible, see to  it that it can be 
concluded in 2009. 
After the close of the already launched public  consultation on the reform of the Common 
Fisheries Policy by 31 December 2009, the Commissi on will summarise its results in the first 
semester of 2010 and develop a proposal  for a new basic regulation in 2010. 
                                                
 
248 COM(2007) 502 final of 05.09.2007 
EN 216   EN 9.4. Measures in force 
The Common Fisheries Policy is based on the pr ovisions of Article 3, 32 and 33 of the EC 
Treaty. The full set of rules adopted under th e Common Fisheries Po licy as well as new 
measures already proposed can be found on the following website: http://ec.europa.eu/fi sheries/index_en.htm
. 
10. INTERNAL  MARKET  AND  SERVICES 
10.1. General overview  
10.1.1.  Efficient and effective en forcement of Community law – achievements in 2008  
1. The prioritisation of infringements 
The objective of an infringement procedure is to find appropriate solutions for breaches of 
Community law. The prioritisation of infringe ments is a means to determine which problems 
have particularly detrimental effects on the goo d functioning of the In ternal Market and to 
ensure that these problems are solved as quickly as possible. 
In line with the Commission's Communication "A  Europe of results", a set of horizontal 
criteria exists to determine priorities specifi c to the Internal Market and Services. These 
criteria complement the categories of priori ties identified in the aforesaid Commission 
Communication (i.e. non-communica tion of transposition measur es and proper execution of 
judgments of the Europe an Court of Justice): 
a) Policy priorities in the field of Internal Market and Services : one example of such priorities 
is serious breaches of the Remedies' Directive and the related case law of the European Court 
of Justice in the public procurement sector. An effective national remedies system is essential 
for the efficient and effective enforcement of  public procurement rule s as confirmed by the 
recent adoption of a new Remedies Directive.  Another example is cases where national 
measures highlight an overall incorrect trans position of a recently adopted Directive)  
b) Cases having a signif icant legal dimension: This covers a range of issues, inter alia cases 
where fundamental freedoms are violated with  a significant impact on citizens' rights, 
breaches threatening the good functioning of sect oral legislation or cases giving rise to 
important legal questions where a clarification by the Court of Justice is deemed important. One example is the nationality requirement established in several Member States for the exercise of a profession or cases where th e national measures prevent the EU insurance 
legislation or occupational pension funds system  to work properly in a given member State 
c) Cases having a significant economic impact:
 In the area of public procurement cases with 
substantial contract value, of ten including substantial EU co -financing, are treated with 
priority. National measures precluding, making ex tremely difficult or discouraging mergers or 
acquisition of shares in big companies and/or strategic sectors (e.g. en ergy or the financial 
sector) are considered priority cases as well.  
Priority cases require a significant investment in  terms of efforts and resources. They are often 
legally or technically complex and must be treated fast so as to  limit the negative effects of 
the national measure in question. These efforts have produced good results.  
EN 217   EN Some priority cases closed in 2008 illustr ate the successfulness of the approach.  
Following the " Alcatel " case law (effectiveness of the national review systems in public 
procurement area) the Commission asked the United Kingdom to align its rules to the said ECJ case law. The Commission moved quite fast  until the Reasoned Opinion. Negotiations 
were intensified after this stage and the UK adapted national measures before the case was 
brought to ECJ.  
A vigorous use of the infringeme nt procedure as a leverage to  move forward in constructive 
negotiations solved two difficult and sensitive cas es in the respective countries related to the 
freedom of establishment: IT acce lerated and finalised its amendm ents to the law concerning 
the petrol stations  after referral decision; FR adopted appropriate modifications to the law on 
hydroelectric concessions  after referral to Court. 
2. Preventive action: risk-based approach, pro-active guidance to MS and 
partnership 
Infringement cases are sometimes a reflection of a problem elsewhere. Resolving the case 
may not remove the source of th e problem, e.g. late transposit ion is often due to lack of 
priority given to this legal obligation by natio nal administrations. For example, a risk-based 
transposition plan is now established for all new directives. Such plans identify the major 
risks related to late or incorrect transposition and outline the actions planned to address those risks during the transposition period. In 20 08 substantial work has been devoted to 
accompany the transposition of the new Postal  Services Directive, the new Remedies 
Directive, in addition to ongoing activities relate d to the Services Directive and the Payment 
Services Directive. A plan is being prepared  to support the Solvency  II directive and the 
Defence procurement directive which should be a dopted at the end of th e current legislature 
(Spring 2009).  
Throughout the transposition period (and after) the Commission services provide technical 
support and guidance to national authorities. To  prevent or detect incorrect transposition, 
advisory or regulatory committ ees, sectoral working groups and transposition workshops are 
used to clarify national legislation
249 and achieve a substantial c onvergence of the practices. 
Detailed questionnaires are regularly sent to  Member States in order to follow the 
transposition process250 and bilateral technical assistance is offered to national authorities. 
Web-pages with "Most Frequently Asked Qu estions and Answers" have been used 
extensively in some areas; dedicated trans position scoreboards are published on Internal 
Market website and regularly updated. 
Transposition package meetings have been organi sed in Member States with particularly high 
transposition deficits. In 2008, such meetings to ok place in Poland, Sweden and Greece. They 
serve two different purposes: th ey address problems before th e deadline for transposition 
expires and keep up pressure on Member States  to transpose Directives on time. Experience 
shows that such meetings are useful to improve  Member States track record and maintain a 
genuine cooperation spirit between Member States and the Commission. 
                                                 
249 E.g. Directive 2007/44/EC249, amending some directives in the financial sector (banking, insurance and 
securities) by introducing new rules and evaluation criteria for the prudential assessment of acquisitions 
and mergers. This Directive has to be implemented by 21 March 2009; directive 2006/43/EC and 
2006/46/EC in accountin g and auditing areas. 
250 E.g. in the case of the UCITS Dir ective or for the audit Directive.  
EN 218   EN The on-going work with Member States on a Commission Recommendation on Partnership in 
Implementing the Single Market illustrates the priority given to prevention. The partnership 
approach is based on the idea th a t  i f  w e  w a n t  t h e  I n t e r n a l  M a r k e t  t o  w o r k  i n  p r a c t i c e  f o r  
citizens and businesses, then we need a clos e cooperation between the Member States and 
with the Commission. The infringement proce dure and other problem-solving mechanisms 
play an essential role for th e good application of EU law but cannot by themselves achieve 
this objective. 
3. Petitions  
The Commission services replied to about 165 que stions in 2008 (includi ng joint replies) 70 
new petitions have been received and professi onal qualifications recogni tion remains the most 
important field (40%, followed by services (2 5%) public procurement (10%) and financial 
services 10%). Petitions linked to infringements concern one third of ongoing petitions and 1/5 of new ones. 3 areas were particularly a ffected: public procurements (more than 45% of 
replies), professional qualifica tions (25%), services (20%) an d financial services (10%). 
In the area of services, several petitions ha ve been lodged on the Spanish case concerning 
pharmacists' activity. The closure of the cas e at the end of 2008 on the German law for 
chimney sweepers should also produce its effects on the petitions related to this file. There are 
still some open petitions concerning gambli ng. Questions on postal se rvices are regularly 
answered by referring the petiti oners to national authorities.  
As for financial services, petitions relate mainly  to insurance, company law, securities, capital 
movement and payments. They are often complex and pertaining to individual situations or of 
general nature but outside Community law. Pe nsion funds remain an important topic. The 
report of the UK Ombudsman who intervened in the petition Committee on the "Equitable 
life" affair could allow fi nding a satisfactory solution. 
Less than 10 cases have been sent to SOLVIT . Only one case highlighted a misapplication of 
Community law; 2 have been introduced in th e EU-Pilot system (ins urance and professional 
qualifications).  
4. Complementary problem solving m echanisms (SOLVIT and EU-Pilot) 
Problems with the application of  EU law which are not considered a priority are either 
handled via the formal infringement procedure al beit with a lesser degree of intensity, in EU 
Pilot or in SOLVIT. 
The number of SOLVIT cases is increasing: in 2008 it increased by 22% and reached 1,000 
cases. However, the number of problems subm itted by businesses has remained stable over 
the past years and as a result their relative share in SOLVIT case flow has decreased from 
32% in 2004 to 14% in 2008. The resolution rate remained high at 83% of all cases. As in 
2007, in 2008 the number of SOLVIT cases exceeds  the number of opened infringement cases 
on the basis of complaints in the same area.  
SOLVIT has become a very potent and efficien t complementary instrument. In particular, it 
offers assistance and resolves many of the pr oblems experienced by individual citizens and 
businesses and helps to identify st ructural issues which may still need to be resolved in order 
to improve the operation of the Internal Market. 
EN 219   EN In 2008 both SOLVIT and Citizens SignPost Servic e received a high numb er of requests in 
the areas of social security, professional qualifi cations and free movement of persons. It is 
noticeable that late transposition or ineffectiv e application of certain Internal Market rules 
tends to increase the number of cases submitted to these services. 
The EU-Pilot  is still in a test phase, but the Comm ission has already been able to handle a 
certain number of cases in the area of Internal Market and Services (about 50 at the end of 
2008).  
5. The Internal Market Scoreboard: tr ansposition deficit and infringements 
reduction 
The IM Scoreboard  has proved a major success in te rms of reducing Member States 
transposition deficit. Th e average deficit for Internal Market  directives is down to 1% in 2008. 
While the objective must be to  reduce this deficit even furt her there would be good reason to 
focus more on the application of EU law in Member  States. The fact remains that in this area 
the situation has not improved in recent years. In 2008, the IM Scoreboard turned its attention 
to infringements of Community law other than late transposition of Directives. This will 
continue in 2009, inter alia  by taking a closer look at  specific sectors where Member States 
appear to face particular difficulties in complying with the law, the nature of the problems 
identified and the efforts by Member States to comply with their legal obligations. 
10.1.2.  Key challenges for 2009-2010 
1. Enforcement and the economic and financial crisis 
The current economic and financial crisis may po se particular challenges for the enforcement 
of Internal Market rules, notably  in the area of public procurement but also in the area of free 
movement of capital and financial services. .  
There have been some examples already in 2008: to counter the ne gative effects of the 
financial crisis certai n Member States have introduced fl exibility measures in the national 
regulations for UCITS which ma y raise doubts as to the compliance with the relevant 
directive. Problems may also occur in the fi eld of public procurement. Alongside useful 
measures to cut red tape, Member States may be  tempted to introduce possibilities for local 
awards of public contracts wit hout European-wide competition, as they see this as a way to 
boost local businesses. The free movement of capital may also  be affected: Member State 
interventions must be notified to the Commission under state aid rules, but measures that do 
not have an aid component and affect capital movements may go unnoticed by the Commission. In this context, the necessary an d continued monitoring activities related to 
strategic foreign investment control by MS as well as to specific measures in the financial 
sector will be important.  
The Commission response to the recent financial crisis represents a major priority in the 
financial services area. This will trigger substa ntial legislative and quasi-legislative measures 
in 2009 and beyond. In 2010 and beyond the transposit ion and effective a pplication of this 
legislative package will be a key priority. At the same time, a close monitoring of measures 
taken by Member States in the context of the crisis is needed in order to avoid that they jeopardise the Treaty principles  and existing legislation.  
EN 220   EN The financial crisis may finall y be a factor of risk whic h could delay the successful 
transposition of directives: it may modify priorities at nati onal level and th e allocation of 
resources in accordance with  these new priorities.  
2. Ensuring the proper functioning of the Inte rnal Market for services both for the 
benefit of business and citizens 
Services represent around 70% of GDP and employm ent and have been the essential source of 
job creation in recent years. Despite this ex ceptional economic performance, the significant 
growth potential of the internal market for services largely remains untapped due to the 
existence of numerous legal and administrative barriers. These barriers  involve substantial 
delays and costs for companies who want to set up an establishment or provide services 
abroad. The absence of a well-functioning internal  market for services also harms recipients, 
as existing barriers limit choice a nd lack of competition keeps prices unnecessarily high.  
The Services Directive aims at knocking down these obstacles and rele asing the unexploited 
potential of services. Thus, its effective appl ication will be a key priority in 2010 and beyond. 
Moreover, the process of mutual evaluation of le gislation affecting the services sector which 
the Directive requires the Commission and Member States to carry out in 2010 will constitute a fundamental tool to gauge the state of th e Internal Market fo r services following 
implementation of the Directive and to identify  sectors or aspects where further Community 
initiatives may be required. A key priority for the Commission will theref ore be to take all 
necessary measures to make sure that this proces s is carried out in an effective way so that it 
may bring real added value to the development of the Internal Market. 
3. Empowering  citizens   
A staff working document has been adopted in May 2008 and contains an action plan for the 
streamlining of a whole range of existing information a nd assistance services  including 
SOLVIT, to help citizens and bus inesses to better understand and make full use of their rights 
and benefits in the EU. The objectives of the plan are to make it easier for users to access 
these services. A single point of access which will increase cooperation between the services 
is to be created and this will provide users with  a better and faster service. The plan is also 
expected to have a positive effect on the func tioning of SOLVIT since it will address one of 
the main obstacles reported by the SOLVIT ce ntres, namely the very large volume of non-
SOLVIT cases that they are receiving. Better filte ring of cases at the po int of entry and more 
efficient signposting of citizens and businesses to the most appr opriate service will help to 
reduce the percentage of cases that  cannot be handled within SOLVIT. 
The action plan also provides for better integra tion of the single market assistance services 
with the Commission’s complaint handling tasks.  While the Commission is responsible for 
addressing complaints about in fringements of EU law by EU Member States, much of the 
incoming correspondence it receiv es is about requests for info rmation and assistance that 
could be provided more efficien tly by the single market assistance services. For instance, 
many complaints about incorrect  application of EU law can  be resolved quickly and 
successfully through SOLV IT and many queries about EU right s and how to enforce them can 
be addressed by the Citizens Si gnpost Service. While some Commission services already 
make good use of the single market assistance  services by referring to them on their web 
pages, a more systematic approach across the bo ard is needed to develop the full potential of 
these synergies. 
EN 221   EN A clear need for measures helping citizens to  enforce their rights and fully benefit from 
Internal Market opportunities has been also identified in financ ial services ar ea. The current 
financial crisis has highlighted the crucial im portance of an effective legal framework for 
retail financial services , both in ensuring a sustainable balance in the credit markets, and in 
restoring mutual confidence between consumers a nd financial institutions. In this context, the 
Commission intends to reflect on how to ensure responsible lending and borrowing, including 
a reliable framework on credit intermediation; fi nd ways to ensure that the voice of European 
investors is much more strongl y heard on all financial issues; examine ways to ensure that 
foreclosure procedures are avoided wherever po ssible, to prevent citi zens from losing their 
homes.  
4. Speeding up the delivery of solutions 
Through a formal infringement procedure the Commission aims at finding a solution to the 
identified violation within the s hortest time possible. This is part icularly important for priority 
cases, where the consequences of the violat ion are more significant from the legal or 
economic point of view and there is a more  urgent need to introduce the necessary 
corrections. In the Internal Market and servi ces area experience has shown that the treatment 
of such cases is often rather complex and lengt hy despite the additional efforts put in place to 
ensure closer follow-up.  
The duration of priority cases can be tackled under different angles: on the one hand progress 
can be improved through a more developed stra tegy to manage the infringement caseload. On 
the other hand, parallel negotiati ons with Member States must be pursued only if the national 
authorities have clearly understood that the purpos e of the negotiation is to assist them in 
finding solutions, and not to suspend the procedur e. Hence, the identified solution has to be 
put in place as quickly as possible. Unjustifie d delays may immediately let to the following 
step of the infringement procedure.  
Furthermore, cases which are not identified as  priorities according to the criteria are 
particularly appropriate to be treated first by means other than the formal infringement 
procedure. The potential of alternative problem-solving mean s such as EU Pilot and SOLVIT 
is not yet fully exploited. They should be used to the maximum in partic ular to deal with non-
priority cases and cases related to non-structur al issues, where the solution can be rapidly 
found at national level without th e need for legislative measures . The evaluation of EU Pilot 
in 2009 should be therefore used to achieve the necessary improvements and find ways to 
maximise the benefits of this supplementary mechanism. 
Finally, cases should be dealt with  by the authority which is the best placed to examine facts 
and respective positions. Many of the complain ts brought to the attention of the Commission 
could be more efficiently tackled by national bodies or courts, whic h have better knowledge 
of the context where Community and national legi slation linked to the case must be applied. 
Complainants can be therefore encouraged to lean on national re medies before having 
recourse to the Co mmission services.  
This general approach encourag es and obliges Member States  to assume their part of 
responsibility and is in full lin e with the partnership approach  promoted by the Commission in 
the Single market review, as well as in th e Communication "A Europe of Results".  
5. Timely and correct trans position, conformity checks 
EN 222   EN Transposition deficit rate in the area of Intern al market and Services is at the end of 2008 
3.1% against a 1% target for overall Internal ma rket. This is a cause of serious concern.  
Focus will be on Member States with the highest  deficit: transposition package meetings will 
be organised in these Member States and when appropriate political pre ssure will be exerted 
to improve the situation. Some  sectors seem more affected  than others (e.g. anti-money 
laundering, cross border mergers and regulated pr ofessions), depending on the sensitivity of 
the legislation to be transposed and on the num ber / breadth of measur es to be adopted at 
national level to complete the process.  
Alongside the work on reducing th e transposition defici t, the conformity checks represent a 
major task for 2009-2010 : there is a substantial volume of national transposition measures to 
analyse, in particular in the area of company la w but also in the area of mutual recognition of 
professional qualifications. To ma nage this workload will require a risk-based approach, in 
order to check first those measures which corre spond to key provisions or provisions likely to 
trigger interpretation problems, incorrect tran sposition or gold plating. Transposition tables 
are often absent: Many member States are relu ctant to provide them on a voluntary basis and 
are often late. When tables are provided it is at a late stage or the information included in the table is of limited help. Furthermore, translat ion needs necessarily delay the process. The 
outsourcing of certain tasks related to this  work is under consideration, in particular 
translations, the drawing up of transpositions tables and first conformity checks. This will be taken forward in 2009/2010.  
The test case: services directive 
The implementation of the Services Directive  was in 2008 and remains for 2009 a particularly 
complex and demanding exercise for Member States as well as  for the Commission. Member 
States are required to carry out several large scale projects, such as the implementation of 
"points of single contact", an extensive review of national legislation and the setting up of an 
electronic system for administrative cooperati on between Member States' administrations. 
Implementation therefore involves intensive coordination and organisational efforts.  
Any delay or deficiency will have important consequences on the level playing field for services 
providers all over Europe and on the effective func tioning of the points of single contact. It 
seems clear that without the approach taken by the Commission to work in close partnership 
with Member States (and to devote the requ ired resources and efforts to do this) the 
implementation of the Services Directive would ha ve been an even more challenging exercise. 
A detailed and ambitious transposition plan serv ed as the basis for almost daily cooperation 
between Member states competent authorit ies and the Commission. Key provisions, risks 
connected to misinterpretations, specific need s of each Member States  were identified through 
working groups and bilateral technical meetings. Political support at the highest level has also 
been part of the flanking actions. The efforts to accompany Member States in this difficult 
and challenging process have been massive and hopefully w ill be rewarded by minimum 
delay in transposition. The qual ity of the transposit ion at national level and the concrete 
functioning of the mechanisms put in place by the Directive will represent a major challenge 
for 2010. 
6. Partnership with Member States 
Member States share with the Commission the re sponsibility for a single market working well 
and delivering all its benefits to citizens and businesses. A more coordinated and cooperative 
EN 223   EN approach amongst Member Stat es and between Member States and the Commission can 
enhance the functioning of the internal market, by helping to better implement and enforce 
single market rules.  
The Commission adopted, in June 2009, a Reco mmendation addressed to Member States 
which identify the main components of this closer partnership251. The Recommendation is 
likely to address issues concerning the transp osition, application and enforcement of single 
market rules and means to encourage Member St ates to prevent problem s early on, to promote 
problem-solving tools, better to inform c itizens and businesses about their rights and 
opportunities, and to monitor market developmen ts to identify remain ing obstacles to the 
single market. 
The Recommendation is part of a cooperative process. It has been prepared in close 
cooperation with all Member States and its e ffects will be monitored jointly with Member 
States. Involvement and cooperatio n of national authorities is a prerequisite for achieving 
results. It is hoped that this jo int work will stimulate ownershi p of national authorities as well 
as a "European reflex". 
10.2. Analysis by sector 
10.2.1.  Freedom to provide services  and freedom of establishm ent (other than Financial 
Services) 
10.2.1.1.  Current position 
(1) General introduction 
The relevant legal framework consists of Ar ticle 43 of the EC Treaty on the freedom of 
establishment as well as of Article 49 of th e Treaty on the freedom to provide services.  
This framework is complemented by a number of  Internal Market Directives which develop 
these freedoms as regards specific service activi ties or specific legal aspect (Postal Services 
Directive252, the Directive on the legal protec tion of conditiona l access services253 and the E-
commerce Directive254). 
Besides these specific instruments we find Directive 2006/123 /CE on services in the Internal 
Market255 adopted in December 2006. This is an impor tant horizontal instrument which will 
apply alongside other existing Di rective and complement them. It has to be implemented by 
Member States before the end of 2009. 
(2) Report of work done in 2008 
                                                 
251 COMMISSION RECOMMENDATION of 29 June 2009 on measures to improve the functioning of the 
single market (2009/524/EC), OJ L176 of 7.7.2009." 
252 Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending 
Directive 97/67/EC with regard to the full accomplis hment of the internal market of Community postal 
services, OJ L 52, 27.2.2008 
253 Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal 
protection of services based on, or consisting of, conditional access - OJ L 320,  28.11.1998, p. 54–57. 
254 Directive 2003/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal 
aspects of information society serv ices, in particular electronic co mmerce, in the In ternal Market 
(Directive on electronic commerce), OJ L 178 of 17.7.2000, p. 1. 
255 O.J. L 376/36 of 27.12.2006 
EN 224   EN a. Management of legislation, includ ing in committees and working groups 
The Services Directive is more than just a piece of legislation to be implemented into national 
law. It sets out a comprehensive modernisa tion programme for national administrations.  
In response to a request form ulated by the Council, the Commi ssion had already in 2007 taken 
the commitment to provide guidance and as sistance to Member St ates throughout the 
implementation process. Thus, following the fi nal adoption of the Serv ices Directive, an 
implementation strategy has been put in place to support and guide Member States' 
implementation efforts. Concre te actions in 2008 include:  
• More than 30 bilateral meetings with Member States. 
• 13 meetings of the “Expert Group on the impl ementation of the Services Directive” on 
specific implementation aspects allowing not only to exchange best practice but, most 
importantly, to ensure a similar level of unde rstanding by all Member States of the work 
required and the priorities for action. 
• Agreement with Member States on an on-line tool  to be used by them to comply with the 
comprehensive reporting obligation they have under the Directive (re porting of legislation 
affecting service providers). 
• As regards the Points of Single Contact, wo rk focussed on providing practical guidance in 
the Expert Group by defining benchmarking crit eria and facilitating exchange of best 
practices between Member States. Work was also undertaken on "bra nding" of the PSCs 
and a high-visibility single "Europ ean Webgate" to the national PSCs.  
• Work to facilitate the cross border use of elect ronic procedures advanced considerably and 
very concrete options are being discussed in 2009 for implementation via a Comitology 
decision. 
• A very important effort was deployed to prepare the use of IMI, the "Internal Market 
Information System", an electronic network which allows for direct communication and 
exchange of information betwee n competent authorities in differ ent Member States and thus 
facilitates the administrative cooperation required  by the Services Directive, including the 
preparation of a Comitology decision with th e related practical arrangements and the 
preparations for the laun ching of a pilot in 2009. 
A second implementation report on the conditional access services  was adopted in 2008256. 
The report details its usefulness to protect pa y-TV services as well as new audiovisual 
information society services against piracy in  the current world. Simultaneously, an expert 
group was created in order to discuss a number of  issues linked to a better implementation of 
the Directive. Moreover, the Commission wi ll propose to the Council in 2009 to ratify the 
Convention on the Legal Protection of Services  based on, or consisting of, Conditional Access 
adopted by the Council of Europe on 24 January 2001257. 
                                                 
256 COM(2008) 593 final 
257
 http://conventions.coe.int/Treaty/Commun/ QueVoulezVous.asp?NT=178&CM=8&DF=8/12/2
008&CL=ENG.  
EN 225   EN Concerning the e-commerce Directive , the interest of citizens and operators focused on 
questions regarding liability of the e-commerce service providers. Thanks to differing national interpretations of the relevant provisions of the e-commerce directive uncertainty has arisen within the on-line market as to the extent of the limited liability  of internet service providers. 
In order to redress these misunde rstandings, the Commission's servi ces discussed this in detail 
with the Expert group of e-commerce made up of representatives from  the Member States' 
authorities. Moreover, negotiations  with third countries  (e.g. USA, India, Ukraine) continued 
in order to strengthe n e-commerce services. 
b. management of Infringements 
The Commission also carried out its control of  the application of articles 43 and 49 of the 
Treaty by means of infringement proceedings con cerning restrictions in various areas of the 
Internal Market. A number of procedures co ncerned the reimbursement of medical costs 
incurred in another Member State (the so-called mobility of patients
).  
Spain was referred to the Court of Justice258, because of the refusal to grant additional 
reimbursement of the costs incurred for hospita l care required during a temporary stay in 
another Member State. This refu sal deprives European citizens of a right granted to them by 
the Court under Article 49 of th e Treaty as interpreted in the Vanbraeckel  case259. The 
Commission also decided to take France to th e Court for the continued existence of prior 
authorisation for the reimburse ment of certain types of non hospital treatment which was 
considered contrary to Article 49 of the EC Treaty as recognised by the Court. In addition, 
patients treated in a hospital in another Member State cannot be reimbursed at levels at least 
equivalent to what they would ha ve received had they received treatment in a French hospital. 
This is again a breach of Article 49 of the treaty as interpreted on the Vanbraeckel  case.260  
Since prior authorisatio n continues to be required for the reimbursement of non hospital 
treatment in Spain, the Commission has decided to  also send a reasoned opinion to Spain. At 
the same time, Spain is criticised for requirin g prior authorisation for the reimbursement of 
the cost of hospital treatment, despite not having a system for the issuing of such 
authorisations that is in line with le gal certainty and tran sparency criteria.  
A reasoned opinion was issued to Luxembourg for failure to reimburse the cost of medical 
tests carried out in another Member State. The Commission considers that the systematic 
refusal to reimburse patients in respect of thes e costs is incompatible with article 49 of the 
Treaty.  
And finally, the Commission has sent a reasoned  opinion to Estonia in view of its rules 
prohibiting the recognition of me dical prescriptions made out by medical practitioners who 
are qualified to act in their Member State of esta blishment but are not registered in Estonia.  
In other areas , the Commission has sent a supplementa ry reasoned opinion to Belgium on 
disproportionate requirements for temporary em ployment agencies which are established in 
other Member States and wish to provide their services in  Belgium on a temporary basis.261 
                                                 
258 C-211/2008. 
259 C-368/98. 
260 C-512/2008. 
261 The requirement to have a representative resident or domiciled in Belgium or, if such a representative is 
no longer required, to have an address in the region concerned is equally disproportionate as the 
EN 226   EN The Commission has referred Portugal to the Court262 and issued a reasoned opinion to this 
Member State for not making a distinction between requirements applying to a service 
provider who wants to provide te mporary services in Portugal and a service provider wanting 
to establish in Portugal263.  
Austria and the United Kingdom  have received reasoned opini ons for requiring service 
providers to have an address in the respective count ry, in Austria for actions relating to 
insolvency proceedings, in the United Kingdom for actions relating to trademarks and patents.  
Italy has been referred to the Court of Justi ce for its regulations on the schedule of maximum 
fees for lawyers' services.264.  
In the field of establishment , the Commission has decided to refer Spain to the Court of 
Justice265 for its national legislation and the legislation of Catalonia relating to the 
establishment of retail outlets266. The Commission has sent at the same time to Spain a letter 
of formal notice targeting specifica lly the legislation of Andalusia267.  
In addition, the European Commi ssion decided to close the infringement proceedings against 
Italy relating to the national and regional legislation on the establishment of petrol 
stations268 following the removal of all disputed restrictions (i.e. compulsory minimum size 
and additional “non-oil” commercial activiti es; minimum distances between installations; 
constraints regarding opening hours, etc).  
Following the implementation in 2008 by Italy of the judgment of the Court of Justice of 18 
July 2007269, which confirmed that certa in national restrictions on extrajudicial debt 
recovery agencies , were incompatible with the freedom of establishment (Article 43 EC 
Treaty) and the freedom to provide services (Article 49 EC Treaty), the Commission decided 
to close the infringement proceedings270.  
In the field of establishment of pharmacies,  formal requests to amend their legislation 
relating to ownership of pharmacies  were sent to Germany, Portugal271 and Italy272. The 
reasoned opinions generally concern the reserv e of the pharmacy ownership to pharmacists, 
restrictions on the number of outlets ow ned, prohibitions for medicines wholesaling 
companies on owning pharmacies, and restricti ons relating to the localisation of the 
pharmacies. In parallel to the infringement proceedings the Commission held in October 2008 
                                                                                                                                                         
limitation of the activities of the service provider to those relating to human resources or the 
requirement to have a specific legal company form. 
262 C-458/2008. 
263 On the one hand it concerned the rules on the provision of construction services, on the other hand the 
rules on estate agent services and real estate brokerage firms. The failure to make such a distinction 
infringes Article 49 of the EC Treaty 
264 C-565/2008. The Commission questions the need for such provisions, the result of which is to restrict 
the access of service providers from other Member States to the Italian market, while not however 
guaranteeing access to justice and its proper administration or  protecting those receiving the services in 
a way which is proportionate with the general interest objectives sought 
265 Case C-400/2008. 
266 IP/08/507. 
267 IP/08/861. 
268 IP/08/1792. 
269 Case C-134/05, Commission v Italy. 
270 IP/08/1360. 
271 IP/08/1352. 
272 IP/08/1785. 
EN 227   EN a workshop on access to high quality pharmacy serv ices aimed at continuing the constructive 
dialogue with Member States and the main stakeholders in the pharmacy sector. The 
Commission's services intend to continue the fr uitful dialogue with st akeholders and Member 
States by organising a sec ond workshop on pharmacies in 2 009. The Commission dealt also 
with several petitions (most of them related to the infringement pr oceedings 2001/5261 Spain) 
and written questions relating to restrictions  on the establishment of pharmacies. The 
upcoming judgment of the Court of Justice in Case C-531/06, Commission v Italy , relating to 
restrictions on the ownership of pharmacies by non-pharmacists, will be taken into account 
when dealing with such restrictions273. 
In the area of gaming services , a formal request to amend nati onal rules was sent to Sweden 
in relation to restrictions on the freedom to provide on-line poker services and to promote 
both on-line and off-line poker games and tourname nts. The Commission i nquired also into 
restrictions on gaming services in Germany fo cusing on a number of provisions of the new 
German gaming legislation which entered into  force on 1.1.2008, notably  the prohibition of 
games of chance on the Internet274. In addition, the Commission sent reasoned opinions to 
Greece and the Netherlands requesting them to amend their gambling legislation275. The 
reasoned opinions concern the f act that providers lawfully li censed in another Member State 
are not allowed to provide or to promote gaming services.  
The Commission notes with satisfaction that so me Member States (France, Italy, Hungary) 
have already announced amendments of their ga ming legislation in 2009 in order to comply 
with the requirements of EC law. The Commi ssion will examine the new draft legislation and 
will continue the dialogue with Member States with a view to ensuring the full application of 
the Treaty in the gaming sector.  
In the summer of 2008 under the French Pres idency of the Council a Working Party was 
created in order to discuss the problems relating to gambling, including on-line gambling. 
This work continues under the Czech and the Sw edish Presidency of the Council. In parallel, 
the European Parliament prepared an own-in itiative report on integrity of on-line gambling 
which has been adopted by the plenary in March 2009. 
It should be recalled that by the end of 2008, many preliminary questions relating to gaming 
services were submitted or are still pending for a preliminary ruling of the Court of Justice276. 
The Court is expected to rule in the preliminary case C-42/07, Liga Portuguesa de Futebol , in 
2009. 
Following the implementation by Member States of Court judgments, a number of 
infringement cases coul d be closed in 2008: 
                                                 
273 Also in preliminary Joined Cases C-171/07 and C-171/07, Apothekerkamer Saarlandes . See also 
requests for preliminary ruling by th e Tribunal Superior de Justicia de Asturias, Joined Cases C-570/07 
and C-571/07, Blanco Pérez. 
274 IP/08/119 of 31.1.2008. 
275 IP/08/330 of 28.2.2008. 
276 AT: Engelmann (C-64/08) Langer (C-235/08) on casinos; DE: Winner Wetten (C-409/06), Carmen 
Media Group (C-46/08), Markus Stoss (Joined cases C-316/07, C-358/07, C-360/07, C-409/07 & C-410/07); FR: Zeturf (C-212/08); NL: Sporting Exchange/Betfair (C-203/08), Ladbrokes (C-258/08); 
PT: Liga Portuguesa de Futebol (C-42/07), opinion of Advocate General Bot delivered on 14.10.2008, 
and SE: Gerdin & Sjöberg (Joined cases C-447/08 C-448/08). 
EN 228   EN - Austria, concerning inspection services for boilers and pressure tanks  
(‘Kesselprüfstelle ’)277 , and private inspection bodies of organically farmed products278- 
Germany, on private inspection bodi es of organically-farmed products279 and establishment of 
vehicles inspection centres280. 
The Commission decided to refer Po rtugal to the Court of Justice281 for restrictions on the 
establishment of vehicles inspection centres , notably the granting of  licenses depending on 
the public interest, the limitation of the company's purpose, the ob ligation of a sh are capital of 
100,000 EUR and the incompatibilities for part ners, managers and administrators.  
Germany repealed its restrictions on freedom of  establishment and free movement of services 
of artificial insemination  of bovine animals and the Commission decided to close the 
infringement proceedings282. The Court of Justice in its Judgment of 17 July 2008283 declared 
that by allowing only authorised artificial in semination centres, with exclusive rights over 
determined geographical areas, and persons hold ing an inseminator’s licence, the issue of 
which is subject to the conclusion of an agreem ent with one of those centres, to provide the 
service of artificial insemination of bovine animals, the French Republic has failed to fulfil its 
obligations under Articles 43 EC and 49 EC. 
In the field of hydroelectric concessions, the Commission decided to close the infringement 
proceedings against Spain and France, followi ng removal of the preference for the outgoing 
concession holder284. The Commission also decided to cl ose the infringement proceedings 
against France regarding the ban on cross-promotion of commercial television 
programmes  in France, following complian ce of the national legislation. 
A letter of formal notice was sent to Cyprus on restrictions to estate agents' activity285, 
regarding the qualification and the obligation to collaborate with a local agent for the provision of services. 
The Commission decided to send reasoned opini ons to the Czech Republic and Hungary 
regarding obstacles to the freedom of establis hment and the freedom to provide services for 
the activity of collecting management of rights
286. 
                                                 
277 Judgment of the Court of 14 December 2006277, which ruled incompatible with Article 49 EC Treaty 
the obligation of establishment within the national territory in order to be able to provide 
278 Case C-393/05, Commission v Austria, Judgment of the Court of 29 November 2007278, which ruled 
that the requirement of establishment in Austria for private inspection bodies of organically farmed 
products  was incompatible with Article 49 EC Treaty; IP/08/1793. 
279 Case C-404/05, Commission v Germany. the Court of  Justice on 29 November 2007 declared that 
Germany was in breach of Article 49 EC Treaty, by requiring that private inspection bodies of 
organically-farmed products  approved in another Member State maintain an establishment in 
Germany in order to be able to provide inspection services there. 
280 The Commission decided to withdraw from Case C-369/08, Commission v Germany , and to close the 
infringement proceedings against Germany relating to restrictions on the establishment of vehicles 
inspection centres in Germany, notably the compulsory and exclusive affiliation on a full-time basis of at least 60 independent experts and the employment of at most 30 experts as inspection engineers, 
following the amendment of the German legislation in  September 2008 which repealed the restrictions. 
281 Case C-438/08, Commission v Portugal. 
282 IP/08/1793. 
283 Case C-389/05, Commission v France. 
284 IP/08/1793. 
285 IP/08/689. 
286 IP/08/1786. 
EN 229   EN The Commission sent a reasoned opinion to France in September 2008287 relating to 
restrictions on opticians  (obligation of registration in one  department only)  and distance 
selling of lenses via the Internet, which are considered incompatible with Articles 43 and 49 EC, as well as Article 3(2) of the e-commer ce Directive. France replied in December 2008. 
In the area of postal services , 2008 was a very important year  for the accomplishment of the 
Internal Market for postal services, as the 3
rd Postal Directive was adopted288. The Directive is 
the decisive step towards the realisation of an Internal Market for postal services which represent in excess of one percent of EU GDP a nd contribute to the attainment of the broad 
reform objectives of the Lisbon Agenda. 
A Transposition Plan which was prepared upon the adoption of the 3
rd Postal Directive, 
assesses in detail the risks of incomplete, deficient or late implementation of Directive 2008/06/EC by Member States and envi sages a series of specific act ions to ensure real market 
opening, fair competition and a level playing fiel d. To ensure timely and correct transposition 
of the Directive, the Commission has been heavily engaged throughout 2008 in proactive 
assistance with Member States, including bilateral meetings, while continuing its active role in monitoring and reporting on market devel opments. These activities included letters from 
Commissioner McCreevy to all Member States th anking them for their constructive spirit and 
addressing existing and/or emerging barriers to en try in postal sectors in Member States; and 
a High level Kick-off Conference, which was hosted by Commissioners McCreevy.  
Work on a wide range of trans position issues was taken forwar d in the framework of Working 
Groups convened under the auspices of the Po stal Directive Committee and chaired by the 
Commission.  
A 4
th Application Report on the application of the postal acquis  and the functioning of the EU 
postal market was adopted on 23 December 2008289.290 The Report provides detailed 
economic data and background information and identifies some shortcomings in the implementation of the current postal acquis , which need to be addressed further. 
10.2.1.2.  Evaluation based on the current position 
The implementation of the Services Directive  is a particularly complex and demanding exercise 
for Member States as well as fo r the Commission. It is not just  a list of legal provisions which 
simply need to be reflected, in an appropriate manner, by Member States in national legislation. 
Indeed, Member States are required to carry out several large scale projects, such as the 
implementation of "points of single contact", an extensive review of natio nal legislation and the 
setting up of an electronic system for admini strative cooperation between Member States' 
                                                
 
287 IP/08/1354. 
288 Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending 
Directive 97/67/EC with regard to the full accomplis hment of the internal market of Community postal 
services, OJ L 52, 27.2.2008, p. 3–20 . 
289 Report from the Commission to the Council and the European Parliament on the application of the 
Postal Directive (Directive 97/67/EC as amended by Directive 2002/39/EC), COM(2008) 884 final 
[available online at: http://ec.europa.eu/internal_marke t/post/doc/reports/report_en.pdf ].  
290 Commission Staff Working Document accompanying doc ument to the Report from the Commission to 
the Council and the European Parliament on the appli cation of the Postal Directive (Directive 97/67/EC 
as amended by Directive 2002/39/EC), COM(2008) 884 final, SEC(2008) 3076 [available online at: 
http://ec.europa.eu/internal_market/post/doc/reports/annex_en.pdf ].  
EN 230   EN administrations. Implementation therefore invol ves intensive coordination and organisational 
efforts.  
Any delay or deficiency will ha ve important consequences. Th e timely review of national 
legislation and the necessary modi fications to be made to nationa l law are important in order to 
assure a level playing field for services pr oviders all over Europe. The setting up and the 
practical functioning of the points of single contac t will be one of the important and most visible 
results of the Directive for businesses and an y malfunctioning will be immediately detected. 
Finally, the effects of the Directive will also suffer if the required level of administrative 
cooperation between Member States is not achieved.  
It seems clear that without the approach taken by the Commission to work in close partnership 
with Member States (and to devote the requ ired resources and efforts to do this) the 
implementation of the Services Directive would ha ve been an even more challenging exercise. 
This approach has proven to be  essential to ensure a common understanding amongst Member 
States and to put pressure and help those where the process accum ulates delays. In an EU with 
27 Member States (plus the three EEA) emphasis on this type of work should increase if we 
want to ensure the effective application of Intern al Market rules on th e ground and hence the 
functioning of the Internal  Market in practice. 
In the area of postal services  transposition assistance, conformity assessment and market 
monitoring work will pr ovide the main focus for the coming y ears. It is essent ial, for a proper 
functioning of the Internal Market for posta l services that there is no delay in the 
implementation and that Member States establ ish sound and efficient regulatory frameworks 
that will provide incentives for the provision of postal services and will not constitute a 
market entry barrier.  
To ensure that the objectives of EU postal reform and the accurate implementation of the 3rd 
Postal Directive (in a manner which is faithful to its content and spirit), are achieved, and the Postal Internal Market is accomplished, furthe r measures will be taken as appropriate to 
address barriers to entry or other prot ectionist measures which may undermine the 
achievement of these objectives, including the pursuit of infringement proceedings against 
Member States for violation of Ar ticles 43 and 49 in this sector.  
10.2.1.3.  Evaluation results 
(1) Priorities 
A considerable amount of work has been unde rtaken by both the Member States and the 
Commission on the implementation of the Services Directive, but a lot still remains to be done. While Member States will have to translate the result of the techni cal work of the past 
two years into practice, the Commission has to start preparing for work  to be done after the 
end of the implementation period (28 December 2009). Therefore, the main priority remains 
the timely and correct implementation of the Services Directive. This implies a continuing and efficient cooperation with Member States in order to be able to monitor the implementation process throughout 2009. 
At the same time work is being undertaken for all actions the Directive requires the 
Commission to take (e.g. func tioning of administrative coope ration and preparation of the 
system for reporting by Member States of th e results of their sc reening of national 
legislation). Work has al so started to prepare the "mutual evaluation process" foreseen by the 
Services Directive in 2010. This  process, which is one of the novelties of the Services 
EN 231   EN Directive, can be compared to a peer review and will allow for a structured dialogue between 
both the Member States and the Commission. Ultim ately this process will also involve the 
European Parliament and stakeholders as th e Commission will have to present a summary 
report to the European Parlia ment and to the Council acco mpanied where appropriate by 
proposals for additi onal initiatives.  
Enforcement of the Treaty rules on the freedom  to provide services and the freedom of 
establishment will focus in particular on thos e areas which are not covered by the Services 
Directive, such as health services, as well on all restrictions caused by the failure to distinguish between those two fundamental freedoms. Clear discrimination or cases 
concerning entire categories of service providers will also continue to be treated as priority.  
A considerable amount of work and a variety of activities have al so been undertaken 
regarding the implementation of the 3
rd Postal Directive by the Commission and Member 
States.  
In order for the Internal Postal Market to become a reality, it is essential that initiatives 
directed towards full market opening are con tinued, and where necessary further developed 
and strengthen. In relation to the application of the postal acquis,  two main challenges have 
been identified: (i) ensuring c oherent implementation of the 3rd Postal Directive coupled with 
the establishment of a sound and efficient regulatory framework and (ii) ensuring that any remaining barriers to entry are tackled and removed.  
(2) Planned actions (2009 and beyond) 
The well established cooperation with Member States on the implementation of the Services 
Directive  will continue. Efforts to communicate with  stakeholders as to the benefits and 
opportunities created by the Services Direct ive, now that the implementation deadline 
approaches, will be stepped up. Several actions to  start for the preparations of the mutual 
evaluation exercise in 2010 will be taken (bot h internally in the Commission and vis à vis 
Member States and stake-holders).  
Infringement proceedings  and enquiries will be managed acco rding to set priorities, making 
use of alternative problem solutions mechanis ms such as SOLVIT or EU-PILOT. Given the 
vast variety of possible restrictions concerning the Internal Market, resources will have to be 
deployed efficiently.  
There is a full commitment to pursuing and safe guarding the objectives of EU postal reform 
in a proactive manner. The Commission servi ces will continue to deliver its broad and 
comprehensive assistance activities to Member States.  
A broad range of regulatory issues will be tack led in the framework of Working Groups of the 
Postal Directive  Committee and bilateral and/or multilateral meetings with stakeholders. 
In addition, the Commission services plan to or ganize a high level Postal "Mid-term Review 
Conference" which is planned for 24-25 Se ptember 2009 with Member States, national 
regulatory authorities, key stakeholde rs and consumer representatives. 
The Commission services will also continue to commission further sector studies (as in 2009, 
on the role of national regulatory authorities in  a liberalised postal market and on the effects 
of the EU postal reform in th e period 1997-2008), assist work on the studies in a series of 
interactive Workshops and even tually publish the results.  
EN 232   EN In parallel to the implementation assistance which will be provided to Member States, the 
services will continue with active and comprehensive market  monitoring, which will enable 
the Commission to act against any protectionism in the postal sector and to assess whether 
there is a need for further initiatives to strengthen the regulatory framework.  
10.2.2.  Financial Services 
10.2.2.1.  Current position 
(1) General introduction 
The financial services sector includes three ma jor areas for which similar European policies 
apply: banking291, insurance292 and securities293. The objective of the Community secondary 
legislation is to facilitate the establishment and the cross border provision of services for 
financial institutions on the basis of the home c ountry control principle. In addition to these 
main areas, financial services legislation covers occupational pensions294 and payment 
services295. 
(2) Report of work done in 2008 
In the banking sector , the Commission mainly dealt wi th non-communication cases. As 
regards the transposit ion of banking Directives 2006/48/EC  and 2006/49/EC (the so called 
'Capital Requirement Directive', CRD)296, 4 infringement cases against Hungary and Spain 
due to non-communication of the national trans position measures before the deadline of 31 
December 2006 were still pending at the beginning of 2008. In the course of 2008, it was possible to close one of these cas es, while three cases had to be referred to the ECJ. Out of the 
cases referred to the Court, the case agai nst Spain for non-transposition of Directive 
2006/48/EC was settled further to the complete implementation of the Directive; the case 
against Spain for non-transposit ion of Directive 2006/49/EC re sulted in a Court's judgment 
establishing Spain's failure to transpose th is Directive in Decem ber 2008. The case against 
Hungary for non-transposition of Directive 2006/48/ EC was still pending before the Court at 
the end of 2008.  
Infringement proceedings were pending agains t 8 Member States for non-communication of 
the implementing measures of Directive 2007/18 /EC which amended technical provisions of 
the CRD
297. All of these proceedings were terminat ed in 2008, following to the notification of 
the implementing measures by the Member States concerned.  
                                                 
291 http://ec.europa.eu/internal_market/bank/legislation/index_en.htm 
292 http://ec.europa.eu/internal_market/insurance/legis-inforce_en.htm 
293 http://ec.europa.eu/internal_market/securities/index_en.htm 
294 http://ec.europa.eu/internal_market/pensions/directive_en.htm 
295 http://ec.europa.eu/internal_market/payments/legislation_en.htm 
296 Directive 2006/48/EC relating to the taking up and pursuit of the business of credit institutions (OJ L 
177, 30.6.2006, p. 1)  and Directive 2006/49/EC on the capital adequacy of investment firms and credit 
institutions (OJ L 177, 30.6.2006, p. 201).  
297 OJ L 87, 28.3.2007, p. 9 
EN 233   EN A pending infringement case against France concerning the follow-up of the Court's 
preliminary ruling on the prohibition to pay interest on current accounts was closed in 
2008298. 
In 2008, the working group set up by the Commi ssion in order to ensure a consistent 
implementation of the CRD (CRDTG - Capital Requirements Directive Transposition Group), 
continued its work of interpretation and clarification of the CRD provisions299. The CRDTG 
found that certain provisions were unclear or did not achieve their objec tive in practice. This 
prompted the Commission to propose some te chnical amendments to the CRD through two 
comitology directives300. The adoption of these direc tives is envisaged in 2009.  
In addition, a more ex tensive revision of the CRD was proposed in 2008301 in order to refine 
and update certain provisions. Also this re vision is expected to  be adopted in 2009.  
Good progress has been made in 2008 in the report on the conformity of the national 
measures implementing the CRD.  
As far as the insurance  sector in 2008 is concerned, the Court of Justice ruled on a case 
referred in 2007 with regard to Irish legislat ion on compensation for victims of an accident 
caused by an uninsured motor vehicle 302. The Court of Justice followed the Commission’s 
line of reasoning entirely and found Ireland to be in breach of Article 1(4) of Directive 
84/5/EEC (the 2nd Motor Insurance Directive, OJ L 8/1984, p. 17). Ireland took the necessary 
measures to comply with this ruling by the end of 2008. 
Furthermore, a case against the Czech Republic for wrong transposition of Directive 
2003/41/EC of 3.6.2003 on pension funds (OJ L 235 of 23.9.2003) was referred to the Court 
of Justice during 2008 (case C-343/2008). 
As regards the transposition of Directives  by the Member States, non-communication cases 
had to be launched in the insura nce sector against several Member  States with regard to the 
failure to transpose Directive 2005/ 68/EC (the reinsurance Directive303) by 10 December 
2007. By the end of 2008 Belgium, Czech Re public, Greece, Poland and Portugal were 
referred to the Court of Justice. Some infri ngements were also launc hed concerning Directive 
2002/92/EC (the insurance mediation Directive304), namely against Austria (case filed in late 
2008), Greece and Italy, and as concerns  Directive 87/344/ EEC of 22.6.1987 on legal 
expenses insurance (OJ L 185, 4.7.1987), against France. 
In total 40 complaints and infr ingement cases were handled in 2008, a high number of them 
being for non-communication of the transpos ition measures concerning Directive 
2005/68/EC. 5 cases were referred to the new EU Pilot tool and no cases were referred to the 
                                                 
298 Judgment of 5 October 2004, Case C-442/02, Caixa-Bank France v Ministère de l'Économie, des 
Finances et de l'Industrie  
299 http://ec.europa.eu/internal_market/bank/regcapital/transposition_en.htm  
300 http://ec.europa.eu/internal_market/bank/do cs/regcapital/comitology_crd%202006-48_en.pdf  and 
http://ec.europa.eu/internal_market/bank/do cs/regcapital/comitology_crd%202006-49_en.pdf  
301 http://ec.europa.eu/internal_market/ban k/docs/regcapital/crd_proposal_en.pdf  
302 Judgment of 21 February 2008, Commission versus Ireland, Case C-2007/211 
303 Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on 
reinsurance and amending Council Directives 73/239/EEC, 92/49/EEC, 88/357/EEC as well as Directives 98/78/EC and 2002/83/EC (OJ L 323, 09.12.2005, p. 1) 
304 Directive 2002/92/EC of the Europ ean Parliament and of the Counc il of 9 December 2002 on insurance 
mediation (OJ L 9, 15.1.2003, p. 3) 
EN 234   EN SOLVIT tool. 14 cases were clos ed (around 35% of the total of  cases handled) and only 1 was 
referred to the ECJ (2.5% of the total approximately). Bilateral contacts were held with the 
Member either through package meetings or in the relevant sector committees. Package 
meetings sometimes led to the closing of the infr ingement case within 6 to 9 months of being 
held. 
As regards petitions a total of 16 petitions we re handled on insurance and pensions. They 
dealt inter alia with motor insurance, li fe assurance (the Equitable Life case and 
similar/parallel ones) and pension funds. Of cour se, petitions that show  a breach of EU law 
have their facts "converted" in to infringement s. About 160 queries of other nature concerned 
the insurance sector. 
The key change and challenge ahead is the proposal for a di rective called "Solvency II" 
Directive which was tabled in 2007 and re-tabled (amended proposal) in 2008305. The 
proposal is currently under discu ssion in Council and Parliament . Formal adoption is expected 
in 2009 and transposition by late 2012. The Directive will provide for a transposition period of about 3 and a half years so that implementing measures needed to make the new 
framework completely operati onal are adopted beforehand.  Intensive work intended to 
prepare its transposition and prope r application will start in 2009. . It is intended to modernise 
the evaluation and calculation of risks and therefore will provide for a new, prospective, economic and risk based approach putting much greater emphasis on sound risk management and robust internal controls by insurance unde rtakings. In addition it will also profoundly 
influence the way in which supervision is carried out by the competent supervisory authorities. It also contains a new approach as regards insurance groups. It  is far too early to 
anticipate what will be the effects and consequences of the new Directive.  
In addition to this work, conformity check of Directives transposed remains a key challenge. 
In the insurance sector, the non-communication phase affords the opportunity to press home 
the need for a comprehensive and updated c oncordance table and then to check the 
substantive conformity of the transposition. Th is has been the approach followed for all 
Directives adopted since 2000 and also the initial/1
st stage approach as regards the conformity 
assessment of Directive 2005/68/EC on reinsurance. 
The implementation of the Directive on Reinsurance  (2005/68/EEC) was due by 10.12.2007, 
but not all Member States had completed their transposition pr ocess by that date. In 2009 and 
2010 work will have to continue the focus on pursuing infringements for those countries 
which have not yet transposed at all (Belgium being now the sole case in this instance) or 
which have transposed in an inco rrect way the Directive in question. 
In the area of securities markets , the Commission services finalised in 2008 the completeness 
check for the transposition of the Markets in Financial Instruments Directive (MiFID)306 and 
its implementing Directive307 whose transposition had been de layed in most Member States. 
                                                 
305 Reference: COM (2007) 361 of 10.7.07, and COM (2008) 119 of 26.2.2008. 
306 Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in 
financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 
2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC 
(OJ L 145, 30.4.2004, p. 1 ) 
307 Commission Directive 2006/73/EC of 10 August 2006 implementing Directive 2004/39/EC of the 
European Parliament and of the Council as re gards organisational requirements and operating 
conditions for investment firms and defined terms for the purposes of that Directive (OJ L 241, 
2.9.2006, p. 26) 
EN 235   EN Out of 47 non-communication infringement cas es opened in 2007, 37 were closed between 
2007 and 2008. 5 cases were referred to the EC J in 2008, but 4 were closed in 2008 following 
notification to the Commission of transpositio n measures by relevant  Member States. One 
case (PL implementing Directive) is s till pending in front of the ECJ.  
The quality check for the transposition of MiFI D started in 2008 on a risk-based assessment. 
The Commission services organised in Novemb er 2008 a conference in  order to gather 
evidence from the market on the functioning of MiFID one year after its implementation. 
Furthermore, the Commission services launche d in 2008 two calls for evidence on the 
transposition of MiFID, one for Member Stat es, the other for industry. Problematic issues 
raised in the contributions to the calls for evidence were addressed by Commission services in bilateral contacts with the respective Member Stat es. For some Member States, the analysis is 
still underway in order to determine whether MiFID is correctly transposed and applied.  
Furthermore, the questions and answers da tabase on MiFID, launched by the Commission 
services in 2007, continued to be operated in 2008 to help provide all stakeholders with the 
possibility to clarify interp retational issues concerning MiFID. The quality check of 
transposition for MAD continue d. The check of 7 Member States was finalised in 2008. A 
conference was organised in November 2008 on th e review of the Market Abuse Directive 
(MAD). The outcomes of this conference allowed to  finalise a draft call for evidence, which is 
the first step concerning the review of the MAD directives. 
The Commission services have received many co mplaints in 2008 on the application of the 
Investor Compensation Scheme  Directive. Work continued in 2008 on a petition on the 
transposition of ICSD in Aust ria that had been addressed to the EP in 2007. As a result of 
these numerous complaints, and in the light of the changes to the Deposit Guarantee Schemes 
Directive, the Commission services have prepar ed a call for evidence on ICSD to be launched 
in 2009; its results will allow to determine th e scope of the review of the directive.  
An amendment to the Prospectus Regulati on was approved on 12 December 2008 through 
Commission Regulation 1289/2008
308.  
As one of the measures to address the financ ial crisis, the Commission adopted a proposal for 
a Regulation on Credit Rating Agencies  on 12 November 2008, which is now under the co-
decision legislative procedure in the Council and the EP. The proposal lays down conditions 
for the issuance of credit ratings which are need ed to restore market confidence and increase 
investor protection. It introduces a registration procedure for credit rating agencies to enable 
European supervisors to supervise the activitie s of rating agencies whose ratings are used 
within the Community.  
In the area of asset management  the Commission continued the verification of the 
transposition of th e Directive 2007/16/EC309 (Eligible Assets Directive) by Member States 
(MS). Despite the fact that responses from Me mber States to the questionnaire sent in 2007 
                                                 
308 Commission Regulation (EC) No 1289/2008 of 12  December 2008 amending  Commission Regulation 
(EC) No 809/2004 implementing Directive 2003/71/EC of the European Parliament and of the Council 
as regards elements related to prospectuses and advertisements ( OJ L 340, 19.12.2008, p. 17–19 ) 
309 Commission Directive 2007/16/EC of 19 March 2007 implementing Council Directive 85/611/EEC on 
the coordination of laws, regulations and administ rative provisions relating to undertakings for 
collective investment in transferable  securities (UCITS) as regards the cl arification of certain definitions 
(OJ L 79, 20.03.2007, p. 11) 
EN 236   EN did not indicate major problems that its tran sposition may cause only 12 MS implemented the 
Directive by the foreseen deadline (23 March 2008).  
On 23 May 2008 the Commission sent  letters of formal notice to 15 MS which failed to 
communicate their transposition measures. Vast majority of them subsequently notified the relevant legislative acts implementing the provis ions of the Eligible Assets Directive. In 4 
cases (the Czech Republic, Italy, Greece and Portuga l) where either there was no reply to the 
letter of formal notice or the reply was too vague and did not gi ve sufficient assurances that 
the measure would be adopted in the fores eeable future the Commission sent reasoned 
opinions.  
The desire to counter the negative effects of the financial crisis prompted certain MS to 
develop techniques or to introduce certain flex ibility into the UCITS'  national regulations 
which may raise doubts as to the compliance of  these measures with the UCITS Directive.
310 
The Commission services initiate d considerations, in cooperati on with CESR, on these issues 
in the late 2008. They w ill continue analysing them in the course of 2009 in a view of 
devising the effective response to  any practices resulting from the improper interpretation of 
the Directive. 
2008 was marked by the launching of the recast of  the UCITS Directive as the proposal was 
put forward on 16 July 2008. It had two objectives : one was to codify the successive changes 
introduced to the UCITS Direc tive since 1985. The other aimed at enhancing the working of 
existing provisions and introduc ing new Single Market freedoms by creating a framework for 
fund mergers and asset pooling.  
Ahead of the transposition deadline for the Payment Services  Directive (PSD)311 set on 
1 November 2009, a Payment Services Directive Transposition Group  (PSDTG) was set up 
end 2007 to discuss and prepare the transpos ition of the Payment Services Directive 
2007/64/EC (hereby referred to as "the PSD" ). The main action identified consisted in 
organising transposition workshops with Member States to discuss and solve all transposition 
issues, comparing approaches and choices made by Member States in order to ensure a better 
and consistent understanding of the PSD pr ovisions. The Group met seven times during 2008 
and national representatives di scussed various interpretati on issues. The Group collected 
around 300 questions from Member States c oncerning the 96 Articles of the PSD and 
provided written observations which served as a basis for reaching a common understanding. 15 bilateral meetings  with Member States were hold in 2008 in order to support their 
legislative efforts, to closely monitor the impl ementation process and to spread best practice 
among Member States. 
Furthermore, the Interactive Web-Page
312, operated through a question and answers 
approach and open to everyone interested in  the transposition process of the PSD, has 
received and answered 174 questions in 2008. This web-page also contains  the full text of the 
Directive and information on transposition-rela ted issues including up-dated information on 
                                                 
310 Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and 
administrative provisions relating to undertakings fo r collective investment in transferable securities 
(UCITS) (OJ L 375, 31.12.1985, P. 3), as amended 
311 Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment 
services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC 
and repealing Directive 97/5/EC (OJ L319, 5.12.2007, p. 1) 
312 http://ec.europa.eu/internal_market/payments/framework/transposition_en.htm  
EN 237   EN Member States' transposition plans with referen ces to the forecasts for adoption of national 
measures implementing the PSD and the expected dates for entry into fo rce of such measures. 
When necessary, political pressure was increa sed by preventive measures such as informal 
talks in the margins of the PSDTG meetings or  sending letters to Member States pointing out 
particular aspects of the draft le gislations which were considered not to be  in line with the 
provisions of the PSD. 
In the field of payments, the number of petitions, questions and complaints remained constant 
in comparison with previous years. Most  of the enquiries (a round 120) concerned 
cross-border payment services  and the application of the Regulation 2560/2001, probably due 
to the fact that knowledge of this Regulation an d of its scope is ofte n limited, incomplete or 
inaccurate. Only in a very low number of cases  the Commission services decided to raise the 
issue with the Member State concerned. Howe ver, no infringement proceeding was launched 
during this period. 
In parallel, the review process of two other main pieces of legislation in this area (the 
Regulation (EC) No 2560/2001 on cross-border  payments and the E-Money Directive 
2000/46/EC) led to the adoption in Oc tober 2008 of two Commission proposals313. 
10.2.2.2.  Evaluation based on the current position 
In the banking sector , the complete implementation of the CRD by practically all Member 
States was achieved in 2008. The CRDGT has proved to be a successful form for ensuring 
consistent implementation through cooperation with Member States. The GRDTG has also 
facilitated the preparation of an appropria te legislative response (through comitology 
measures) where it was considered necessary to  clarify or complete technical provisions.  
The finalization of the report on the implementation of the CRD was slightly delayed. This 
delay is due partially to the vol ume and complexity of the legislation to be examined (several 
thousands of pages) and partially to the belate d transposition of the Directives in certain 
Member States. In addition, certain Member St ates were late in providing the necessary 
information to the contractor performing the study. The report will be finalized in the first 
quarter of 2009.  
The impact of insurance cases is in general considerable in economic terms or in terms of 
functioning of the relevant market. The al ready mentioned ECJ case against the Czech 
Republic on occupational pension funds prevents such funds from being (internally) set-up in 
the Czech Republic and in Poland. In other coun tries the legislation has a significant impact 
on the level playing field because it either limits  the possibilities of co mpetitors to stay on the 
market or allows national companies to offe r services without fulf illing the obligations 
imposed by EC legislation. 
Workload on complaints and infringements is  likely to increase in 2009-2010. This does not 
derive, however, from any persistent or struct ural problem but rather from the ever greater 
awareness of citizens of their ri ghts, the increase in legislation and in the number of Member 
States. This implies a likely increase in flow of work and the corresponding need to define 
                                                 
313 COM(2008)627 of 9 October 2008, with regard to the revision of the E-Money Directive and 
COM(2008)640 of 14 October 2008 concerning the review of the Regulation on cross-border payments 
in the Community.. 
EN 238   EN and establish priorities. The current economic/ financial crisis is also likely to have 
repercussions on the work load which should not  be underestimated. Priority will be given 
infringements for non-communication of trans position measures, non-respect of an ECJ 
judgment and cases that show a breach of a f undamental freedom or principle of the EC 
Treaty or a breach of a Dir ective which is blatant.  
The main structural problems (apart from  the accession of new MS or political/economic 
crisis) are given by the complexity of the legislation adopted sometimes in several steps according to the Lamfalussy process. To ta ckle this problem seminars explaining the 
legislation have already been organised and regul ar contact with Member States is maintained 
via the relevant Committees (mainly the Europe an Insurance and Occupational Pensions one) 
and their working groups and also by using the package meetings. For the Solvency II proposed Directive a longer transposition period (of around 3 years) is planned (with the so 
called "level 2" measures under the Lamfalussy process adopted around 1 year before the final 
implementation date). The same complexity creates problems in transposition which may also be of substance (problems of interpretation, fo r instance, or of misa pplication, either in 
general or in specific individual cases).  
As already mentioned, the first pha se of the checking of the impl ementation of recently to be 
transposed Directives (2005/14/EC and 2005/68/ EC), which is the completeness of the 
communication of transposition measures, is near ing its completion and the situation can be 
deemed to be globally satisfactory. In overall terms the same can be said on the 
implementation of the acquis by the Member States.  
As for securities' legislation , MiFID transposition took place very late in most Member 
States. Twenty-five Member States had not tr ansposed by the deadline for transposition -31 
January 2007-, eleven had not transposed the Di rective by the deferred date of application -1
st 
November 2007- and thirteen had not transpos ed the implementing Directive by 13 November 
2007.  
One Member State (PL) has still not complete ly implemented MiFID and an infringement 
case for non communication of the implementing Dir ective is currently pending in front of the 
ECJ. The Committee of European Securities Regulators helped to  find a practical transitional 
solution in 2007 to ensure business continuity for firms from Member States that were late in 
transposing MiFID. However, late transpositio n could potentially cause problems for PL firms 
to adapt to the new provisions and to operate  in other Member States on the basis of the 
mechanisms of free provision of services and establishment of branches provided for under 
MiFID. In any case, firms pass porting into PL cannot be refuse d passports on the grounds that 
PL has not transposed MiFID. The Commission services are closely monitoring the situation 
in PL. There is also a possible economic impact of late transposition, mainly related to the 
postponement of the long term benefits of th e Directive, such as competition among various 
firms from different Member St ates and investor protection.  
CESR is constantly working in the perspe ctive of improving coor dination among securities 
regulators and promoting supervisory convergence in the day-to-day app lication of MiFID in 
the Member States. 
While the answers received from stakeholders on the call for evidence may indicate that the 
quality of transposition of MiFID is in ge neral good, the Commission services are further 
analysing the quality of transposition and of application for MiFID and will address any issues coming up through the prop er tools. Areas subject to in -depth analysis relate, among 
EN 239   EN others, to specific aspects of outsourcing and clearing and settlem ent. Particular attention has 
been and continues to be devoted to the obs ervation and analysis of MiFID on securities 
markets, with the aim of assessing, in the pers pective of the forthcomin g review, aspects such 
as availability of data, fragmentation, and regulatory framework app licable to different 
venues. 
Globally satisfactory is the situation concer ning other secondary le gislation; a call for 
evidence was launched to help determine possibl e loopholes in the directive leading in some 
Member States to problems in the functioni ng of their compensation mechanisms. On the 
Prospectus Directive, no big problems were identified in th e transposition check. However, 
some concerns were raised by plaintiffs rega rding the way in which certain Member States 
implement additional requirements outside the PD. The transposition of MAD proved 
globally satisfactory; however, it is still subjec t to further evaluation in about one third of 
Member States. Contacts with Member States have already been made on those issues where 
the Commission services considered that there was a problem of compatibility with the MAD and its implementing measures.  
In terms of the application of asset management  Community law the priorities set out for 
2008 were broadly reached. The infringement pr ocedure concerning non-t ransposition of the 
2007/16/EC Directive was initiated against all Member States who did not transpose the 
Directive on time. Only 4 reasoned opinions were send out of 15 letters of formal notice 
which is rather a positive result reflecti ng also good bilateral cooperation between the 
Commission services and c oncerned Member States. The end of 2008 brought few open 
questions with regard to the possible scope of interpretation of the UCITS Directive by 
Member States in the context of the financial cris is, e.g. introduction of  side pockets, the 
liability of depositaries, waivers of certain UC ITS obligations. The complexity of these issues 
necessitates careful and comprehensive anal ysis also in cooperation with CESR. 
The current financial crisis has highlighted the crucial importance of  an effective legal 
framework for retail financial services , both in ensuring a sustainable balance in the credit 
markets, and in restoring mutual confidence be tween consumers and financial institutions.  
In the coming years, citizens and small businesses will have to be reassured that financial 
institutions and intermediaries are adequately ca pitalised, properly supervised and will be fair 
in their treatment of their customers. Equa lly, the sound and proper functioning of the 
economy will require lenders to regain confid ence in the creditworth iness of their retail 
clients.  
The actions covered by the PSD Transposition Plan  have been praised by most of the Member 
States as being very helpful for ensuring a quic k and consistent implemen tation. At this stage, 
the majority of Member States (26 of 27) have indicated they expect to transpose the directive 
on time. Furthermore, all Member States have agreed on the 1
st November 2009 as a common 
date for the entry into force of their resp ective domestic laws implementing the PSD. This 
common date addresses concerns with regard to asymmetric transpos ition and should allow 
the payments industry to have sufficient time to adapt to the new legal rules.With regard to 
the 25 options contained in the PSD, Member States were generally willing to share the 
information available on the use of options w ith the members of the group, in some few cases, 
Member States have refused to provide any indi cation about the use of the options until a final 
bill is submitted before the national parliament 
One of the external risks which could delay a successful transposition is the impact of the 
current financial crisis on the setting-up of priorities at national level and allocation of 
EN 240   EN resources in accordance with these new priorities.  It is not yet clear wh ether this risk could 
lead to a delay for submitting draft legislati on to the national Parliament in accordance with 
the announced timetable. Late transposition of the PSD would be particularly problematic 
since it may jeopardize the timely launch of SE PA products and, in particular, SEPA Direct 
Debit. Moreover, delayed implementation might  create further difficulties for the banking 
sector in terms of costs related to different rule s in force in Member States. Last but not least, 
while most of the provisions on disclosure requ irements and right and obligations of payment 
service providers and payment service users co uld be invoked directly  by citizens before 
national courts, it is not the same for the prov isions regarding a positive action from Member 
States (e.g., setting of registers, designation of co mpetent authorities, etc.) so being late in the 
transposition of those provision s would expose Member States to the risk of actions for 
compensation of loses related to the Member State's failure to implement the Directive in time. 
10.2.2.3.  Evaluation results 
(1) Priorities 
The Commission response to the recent financial crisis represents a major priority in the 
financial services area.  
Work has already started, also under the frame work of the Commissi on Communication of 4 
March 2009 on "Driving European Recovery", on the review of the Mark et Abuse Directive, 
the review of the Prospectus Directive and of the Investor-Compensation Schemes Directive.  
Solvency II, which will revolutionise the way the insurance and reinsurance business is 
conducted in the EU, will also provide for a mu ch more effective and ex-ante response to 
financial crisis, thus being an important instru ment in the context of the current financial 
crisis. 
The Commission services will also  continue the examination of national measures enacted or 
administrative practice executed as  an aftermath of the financia l crisis and which may have 
impact on existing legislation. 
In the banking area  some legislative proposals are under preparation. In addition focus is 
maintained on co-operation with Member States to ensure a coherent implementation of the 
law, through Committee and wo rking groups discussions, incl uding further work of the 
CRDTG, Committee guidelines, and, if necessary, transposition workshops. 
In the insurance area  to efficient co-operation with the Me mber states is added to the need 
for an efficient management of infringement pr ocedures so as to ensure timely and effective 
problem solving. As for specific points, apar t from piloting the a pproval/adoption of the 
solvency II proposed directive as well as the ongoing work on th e "level 2" measures as 
regards the same Solvency II the main priority w ill be to keep assessing the conformity of the 
transposition of the Reinsurance Directiv e (item already mentioned previously). 
In the area of securities , priority will be given to a thor ough, risk-based assessment of the 
quality of transposition of relevant  directives (for MiFID and MAD).  
The MiFID report is due in 2010. It will cove r a broad range of issues coming from the 
application of transparency prov isions to non-equity markets to, as mentioned in the previous 
sections, the functioning of MiFID provisions in the dynamic evolution of regulated markets 
EN 241   EN and multilateral trading facilities. Further wo rk will cover aspects such as the telephone 
recording option, the applicatio n of the gold-plating rule (A rticle 4 of the Implementing 
Directive) and other issues. In its work th e Commission will involve CESR, ESC and ESME 
but will also consider stakeholders views coming from various sources.  
The Commission services will furthermore intensify enforcement action in 2009 with respect 
to the Prospectus Directive; notably in those cases where host Member States impose 
additional requirements.  
Priorities in the field of payment services  will not change substantially in 2009. The 
Commission services will endeavour to keep their efforts to follow-up the transposition 
process and support Member States' work with  the aim to ensure quick and consistent 
implementation. As from 1st November 2009, if need be, they will closely follow up 
non-communication cases and start conformity a ssessment of national transposition measures. 
(2) Planned actions (2009 and beyond) 
If the final report on th e transposition of the CRD  shows failures, the Commission will take 
the necessary actions. Priority will be given to areas in whic h a coherent implementation is 
critical to maintain a level-playing field between credit institutions across the EU.  
In addition, substantial legisla tive work is envisaged in 2009 in  the banking area as a response 
to the current financial crisis. This work, which is part of the wider re form of the European 
financial system outlined in the Commission communication of 4 March 2009314, will focus 
on improving the protection of bank depositors, getting the incentives right in securitisation 
markets and reinforcing the solid ity and supervision of banks. 
As for insurance legislation, a substantial and de tailed checking of th e substance of the 
transposition of Directive 2005/ 68/EC by the Member States will be carried out by the 
Commission services. 
The package meetings with Member States, as well as the referral of cases to the EU Pilot 
tool, will be continued. This is of the utmost importance even mo re so in the framework of the 
current financial crisis. 
Guidance on the transposition of Solvency II w ill be started in close co-operation with the 
Member States. Failure to implement the reinsura nce Directive prevents the creation of a level 
playing field and could conceivably affect re insurance undertakings  and the reinsurance 
market in a negative way, as wa s already previously stated.  
For securities t he Commission services are also working intensively on reports on the 
different directives already in place. The revisi on of the MAD will probably be finalised in 
2009. It will focus on simplification and on increas ing efficiency of the existing provisions. 
The MiFID report is due in 2010. Work has alre ady started, also under the framework of the 
Commission Communication of 4 March 2009 on "Driving European Recovery", on the 
review of the Market Abuse Directive, the re view of the Prospectus Directive and of the 
Investor-Compensation Schemes Directive.  
                                                 
314 http://ec.europa.eu/commission_barroso/president/pdf/press_20090304_en.pdf  
EN 242   EN The Commission services will furthermore intensify enforcement action in 2009 with respect 
to the Prospectus Directive; notably in those cases where host Member States impose 
additional requirements. A series of infringements will be launched in 2009 for the Prospectus Directive on issues that have emerged from the quality check. 
The EU-wide transposition of the 2007/16/EC Dir ective will be the priority for 2009 in the 
asset management  area. It means that the Commission w ill continue exer ting pressure on 
those Member States which failed to fully transpose the Directive by the end of 2008 including the referral to th e European Court of Justice, if considered necessary.  
The recast of the UCITS Directive contains de legations for over 20 level 2 measures. It is 
expected that most of them if not all will be ad opted in 2010. This will have to be translated 
into very intensive legislative work fo r the Commission services in 2009 and 2010.  
Most of the preventive actions included in the Transposition Plan of the PSD  have proved 
effective. Therefore, they will continue to be ap plied. Information on state of play will also be 
systematically asked also in written proced ure and before the expi ration of transposition 
deadline. Concerning the publicity of Member St ates' plans for transposition, the graphic in 
the web-page will be improved so the information is presented by month and not by quarter. If need be, non-communication cases will have to be launched. Bilateral meetings, press releases and political pressure via letters addressed to Member States will be used as well.  
To restore confidence of payment services be neficiaries, the Commission will reflect on how 
to ensure responsible lending and borrowing,  including a reliable framework on credit 
intermediation. A public hearing on responsible lending and borrowing w ill be organised in 
July 2009. Follow-up measures will be presente d by autumn 2009. It will also envisage a 
proposal on providing direct funding to faci litate the cap acity-building of investor 
stakeholders to represent their interests in fi nancial services policie s at EU level, through 
training, research and information. Thorough an alysis will finally concern foreclosure 
procedures, to prevent citizens fr om losing their homes. A report setting out best  practices in 
this area will be published by the end of 2009. 
10.2.2.4.  Summary by sector 
Secondary legislation is in permanent development in the financial services area , although 
the main pillars have been already establishe d following the Financial Services Action Plan 
launched in 1999.  
The new acquis  requires a continuous and close mon itoring of national measures to ensure 
timely and proper transposition. Further, some directives require the Commission to report on 
a number of key provisions that will allow to better evaluate their impact and to determine 
possible problems that need to be addressed. In this area the perman ent dialogue within the 
various sectoral committ ees – including the committees of the supervisors 
315– contributes to 
avoid significant deviations in the applicatio n of relevant EC law. Convergence in the 
supervisory practices is also one of  the key objectives in this area.  
The Commission response to the recent financial crisis represents a major priority in the 
financial services area. This will trigger substa ntial legislative and quasi  legislative measures. 
Work has already started, also under the frame work of the Commissi on Communication of 4 
                                                 
315 CEBS in the banking sector, CEIOPS in the insu rance sector and CESR in the securities sector 
EN 243   EN March 2009 on "Driving European Recovery", on the review of some directives. At the same 
time, a close monitoring of measur es taken by member States in the context of the crisis is 
needed in order to avoid that they jeopardise the objectives of Treaty principles and of the 
existing legislation.  
10.2.3.  Free movement of capital (Articles 56 et seq. EC) 
10.2.3.1.  Current position 
1. General Introduction 
The relevant Treaty provisions governing the fr eedom of capital moveme nts are enshrined in 
Articles 56 EC to 60 EC. In particular, Article 56 EC provides that 'all restrictions on the 
movement of capital between Member States sha ll be prohibited'. A list of transactions that 
are to be considered as capital movements can  be found in Annex I of Directive 
88/361/EEC.316 The legal framework governing this Treaty freedom can be found on the 
Internet.317 
2. Report of work done in 2008 
Work done in 2008 was fully based on the prioritie s set in 2007, namely a pro-active approach 
by way of reinforced and systematic monitoring permitting to concentrate on the most important infringement cases, to diversify the range of restric tions to the free movement of 
capital which are being dealt with and to address these restrictions  at an early stage. Strategic 
foreign investment control required further at tention in 2008. The ECJ delivered two rulings 
against Spain
318 on the issue of screening investment in  the energy sector and confirmed that 
the system of prior authorisation as establishe d by Spain is incompatible with the EC Treaty. 
A reasoned opinion has been sent to Greece relate d to legal restrictions on investment in 
companies of strategic importance.  
The majority of the other infringement cases rela ted to different kinds of special rights that 
governments maintain in private or privatised  companies on the basis of framework laws 
governing privatisation or other la ws applicable to particular co mpanies or sectors. As regards 
the electricity sector: Portugal has been referred  to Court for its speci al rights in the main 
electricity company; and several new cases ha ve been opened. Not related to the energy 
sector, a 228-reasoned opinion  has been sent to Germany for not taking all necessary 
measures to implement the Volkswagen-ruling. 319  
As regards the financial services sector, reas oned opinions were sent to Poland and Slovakia 
concerning their legislation that restricts foreign investment by pension funds. A first 
complaint has been registered regarding measures taken by governments as a response to the financial crisis. Two of the registered cases c oncern restrictions on acquisition of agricultural 
real estate.  
Following amendment or clarification by the MS of the incriminating provisions, closure has 
been possible for the Italian case s related to the right  of direct appointment to the board of 
privatised companies and to the renewal of moto rway concessions, as well as for the Austrian 
                                                
 
316 OJ No L178, 8.7.1988 
317 http://ec.europa.eu/internal_market/capital/framework/index_en.htm   
318 In cases C-274/06 and C-207/07, both Commission v Spain . 
319 In case C-112/05, Commission v Germany  
EN 244   EN case related to provisions in foreign exchange  law and the requirement that certain credit 
institutions maintain liquidity  reserves with a central body. 
In 2008, replies have been prepared for two pe titions related to the ac quisition of immovable 
property-permit required for EU citizens prior to buying a secondary re sidence in Malta and 
to the prohibition for EU citizens who own holid ay houses in Malta to rent their properties 
out. 
10.2.3.2.  Evaluation based on the current position 
Enforcement of EU rules on the free movement  of capital takes on a new dimension in the 
context of the current crisis. Unilateral reactions and policies resulting in repeated breaches of 
Internal Market rules and disruptions in the fu nctioning of the Internal Market could have a 
devastating impact on the EU. In this contex t, the necessary and continued monitoring 
activities related to strategic foreign investment control by MS as well as  to specific measures 
in the financial sector have taken a more poli tical dimension. Recent experience with cases, or 
potential cases related to restrict ions on foreign direct investment  learn that, in general, they 
require a more intensive dialogue with the Memb er State. Moreover, when solutions are found 
or modifications are proposed, they take often a lot of time to be enacted in national law and 
close follow up of the communicated agenda is needed. On specific measures taken in the 
financial sector, a forum for exchange of inform ation and dialogue could facilitate the task.  
As part of the enforcement action in the energy sector, the Commission has found that 
Member States introduce measures in order to protect the security of supply, measures which 
are often contrary to the free movement of capita l. The handling of these cases revealed that 
some Member States are rather reluctant to make a shift towards solutions which could secure their legitimate interest and that are compatible  with the Treaty. Or that such possible shift 
takes place only after delivery of an ECJ-judgmen t or additional steps made in the Art. 228 
proceedings. 
10.2.3.3.  Evaluation results 
1. Priorities 
The pro-active approach by way of reinforced and systematic monitoring will be continued as 
it permits to concentrate on the more important cases, to diversify the range of restrictions to the free movement of capital whic h are being dealt with and to a ddress these restrictions at an 
early stage. Priorities for 2009- 2010 are: close follow up of possible restrictions in the 
financial sector, including those related to crisis measures; fo llow up of measures taken by 
Member States on the basis of national security  and involving restrictio ns on foreign direct 
investment; follow up on enlargement and privatisation processes in EU-12; follow up on the significant restrictions in the energy sect or. Finally, activity related to the 3
rd country 
dimension of the free movement of capital is expected to increase following a ruling by the 
ECJ (2009) on three cases related to MS' bilateral investment treaties. 
2. Planned action (2009 and beyond) 
As regards foreign investment, the Commission will cooperate actively with Member States 
that have updated or are in the process of up dating their legislation to cater for perfectly 
legitimate objectives as foreseen in EU law.  
EN 245   EN Further follow up will be done on investment restri ctions in sensitive s ectors (energy, critical 
infrastructure, financial services) on the basis of national security issues and on investment 
restrictions in pension funds whic h appear not to enter into the scope of secondary legislation.  
For the two newest Member Stat es, investment questionnaires we re sent and several potential 
issues will be followed up actively, especially in the energy sector. In th e area of investment 
in agricultural real estate, a study will be carri ed out to prepare the report to the Council on a 
possible review of the transition pe riods for Bulgaria and Romania. 
To improve understanding of market trends an d developments, a study will be carried out 
focussing on the impact of the econo mic crisis on capital flows. 
10.2.3.4.  Summary by sector 
In the area of free movement of  capital the priorities will re main enforcement action in the 
energy sector, as well as close and permanent mon itoring activities related to strategic foreign 
investment control by MS and to the specific meas ures taken in the financial sector. Increased 
activity related to MS' bilateral investment treaties is also expected to be required. 
10.2.4.  Public procurement 
10.2.4.1.  Current position 
 (1) General introduction 
European public procurement provisions are base d on the fundamental principles of the EC-
Treaty, particularly the right of  establishment and the freedom to provide services stemming 
from Articles 43 and 49 EC-Treaty. The secondary legislation in this field is twofold:  
First, there are two Directives on the coordi nation of procedures for the award of public 
works, supply and service contracts, Direct ives 2004/17/EC and 2004/18/EC adopted in April 
2004 replacing the previous Directives 92/50/EEC, 93/36/EEC, 93/37/EEC and 93/38/EEC. 
Directive 2004/18/EC concerns  most major award procedur es carried out by public 
contracting authorities. Directiv e 2004/17/EC covers contract awards by entities operating in 
specific sectors (water, energy, transport, postal services). 
Secondly, there are two Directives  concerning the legal protection of bidders participating in 
public procurement procedures, Directives  89/665/EEC and 92/13/EEC. These Directives 
have been recently modified by Directive 2007/ 66/EC which has been adopted in December 
2007 and is currently in the proce ss of transposition until December 2009. 
Recently, the legislative process for the adoption of a new special Directive for Defence and 
Sensitive Security procurement was carried out  following the Commission proposal for such a 
Directive adopted in December 2007. The adoption an d entry into force of this Directive is 
scheduled for the first half of 2009. 
 (2) Report on the work done in 2008 
(a) Management of the acquis through committees and expert groups 
Exchange with the Member States on the p ublic procurement legal framework is well 
established. The Commission regularly conv enes two Committees. First, the Advisory 
Committee on Public Contracts (ACPC), which consists of representatives from the 
Governments of the Member States, met 3  times in 2008. Specialised working groups of the 
EN 246   EN ACPC also met in 2008, i.e. 2 meetings of  the Working Groups on E-Procurement and 2 
meetings of the Economic and Statistical Working Group. Second, the Commission also 
organises meetings of the Advisory Committee on the opening up of Public Procurement (CCO), a technical expert Committee which cons ists of public procurem ent experts and other 
technical experts. The CCO met  once in 2008.  
In the context of the described Committees, th e following topics were subject of specific 
discussions: 
- Transposition of the new 'Remedies' Dir ective 2007/66/EC (i.e. national time-schedules, 
problems met) and actions of the Commission in the transposition context (i.e. preparation of 
the standard forms, bilateral mee tings with Member States, etc). 
- Experiences and practices in the Member States intended to make the access by SMEs to 
public works contracts easier, and, implementation of the European Code of best practices in 
this area; 
- Implementation of Article 45 of Directive 2004/18/EC concerning the exclusion of bidders; 
- Public procurement and antitrust legislation. - National recovery plans to  overcome the economic crisis, following the demand of a 
Member State. The Commission subsequently pub lished a press release recognising that the 
exceptional nature of the current economic situ ation can justify the us e of the accelerated 
procedure throughout 2009 and 2010 for all major public projects. 
Bilaterally, package meetings are regularly held  with Member States to discuss the most 
pertinent issues of the applic ation of procurement law in the respective Member State. In 
2008, 73% could be solved. 
(b) Enquiries, problems and complaints management 
Enquiries and complaints in the field of public  procurement have been increasingly treated 
within the new EU-Pilot syst em since its introduction in  April 2008. In the public 
procurement sector, this new system has already b een used in its first year of existence in a 
very proactive way. So far, as we can measure at present, there is a significantly higher use of 
EU Pilot in the field of procurement than in  other areas. Public procurement EU-Pilot cases 
accounted for more than 50% of all the EU-Pilot cases in Internal mark et and services area. 
Commission-wide, a quarter of all EU-Pilot cases in five Member States (Austria, Germany, 
Italy, Netherlands and Lithuania) concerned public procurement, for one Member State 
(Slovenia) even 50% of all Commission EU-Pilot cases occu rred in the field of public 
procurement. 
(c) Management of infringements 
In 2008, 333 public procurement infringement  files have been handled in 2008 (-3% 
compared to 2007). Of these, 163 cases (49%) could be closed (+15% compared to the 142 
cases in 2007); only 8 (approx. 2.4% ) had to be referred to the EC J (-33% compared to the 12 
cases in 2007). Around 190 of those 333 files were  infringement cases (-5% compared to the 
200 cases in 2007). 
(d) Petitions 
EN 247   EN In 2008 the sector of public procurement acc ounted for around 45% of all the Commission's 
replies to petitions in the field of "Internal Ma rket and Services" as a whole. Again, most of 
them were about town planning issues in Spain. In particular, some of the questions raised by 
the petitioners are the subject of infringement pr oceedings in respect of the legislation of the 
Valencia region (Spain) that the Commission re gards as being in breach of the Community 
rules on public procurement (45 answers provid ed; see also C- 306/08 Commission vs Spain).  
(e) New legislation 
Following the presentation of the so-called "defen ce package", a proposal for a sector specific 
procurement Directive for defence and s ecurity, by the Commission in December 2007, the 
legislative procedure for this Directive was going on throughout the year 2008. The informal 
trilogue between the two legisl ative bodies and the Commission took place end of November 
and early December 2008 and achieved a co mpromise which was then approved by 
COREPER end of December 2008. 
(f) Preventive measures in relatio n to recently adopted new legislation 
Following the entry into force of Directive 2007/66/EC in December 2007, considerable time 
was dedicated to the transpos ition of this Directive in  2008. The Commission devised a 
transposition plan and held transposition work shops with individual Member States. Issues 
related to this transposition have been di scussed at the ACPC throughout the year 2008. 
Despite the fact that the transposition period only started in 2008 and will run until the end of 
2009, it was possible to address several important i ssues stemming from this new Directive, in 
particular: the introduction of a mandatory standstill period between the award decision and  
the conclusion of a public contract; the combating of illegal direct awards of public contracts; 
the ineffectiveness sanction and the imposition of altern ative penalties. 
10.2.4.2.  Evaluation based on the current position 
In 2008, the caseload of public procurement infr ingement cases could be reduced for two 
reasons. First, due to an effective system of prioritisation of cases and of speeding up the 
infringement procedures particularly for priori ty cases, such cases have been treated faster 
than in the past and thus have been solved quick er than in previous years. Secondly, due to the 
shift of new cases to the EU-Pilot rather than registering them as infringement cases, the number of registered cases  has also been reduced. 
As already announced in the la st report, the new EU-Pilot ha s been used in cases where 
clarification was needed or where it was co nsidered possible to close the case before 
launching an infringement procedure. So far as we can measure at present, there is a significantly higher use of EU Pilot in the field of procurement than in other areas.  
Political agreement on the text of the Directive for Defence and Sensitive Security 
procurement was achieved in December 2008. This will allow the smooth adoption and entry into force of the Directive and the start of  its transposition in the first half of 2009. 
Useful assistance and guidance has been offere d to Member States in the context of the 
transposition of the new remedies  directive for which the first ha lf of its transposition phase 
occurred in 2008. 
EN 248   EN 10.2.4.3.  Evaluation results 
1. Priorities 
• The transition of an increasing part of the caseload to the EU-Pilot will remain a priority in 
2009. In this context it will be n ecessary to ensure cooperation of the Member States and to 
improve the technical and administrative suppor t side of the EU-Pilot. The services are 
ready to share their experience with the EU-P ilot in order to contribute to such vital 
improvement of this new system. 
• Ensuring smooth transposition of Directiv e 2007/66/EC in all Me mber States until 
transposition deadline (December 2009). 
• Ensuring adoption of Defence Directive in ea rly 2009. Draw up transpos ition plan and start 
assisting Member States with the transposition of that Directive. 
• Assistance to Member States seeking to overcome the economic crisis in their economies 
by measures simplifying their public procurem ent legal systems. Such assistance will 
depend on the length of this crisis but is likely to continue throughout 2009.  
2. Planned actions (2009 and beyond) 
• Further prioritisation of cases and continue d reference of a considerable share of 
complaints to the EU-Pilot. This action de pends on the level of cooperation of Member 
States and on the technical and administra tive improvements of the EU-Pilot following its 
revision throughout the year 2009. Thus, no specific estimations can currently be made. 
• Continued execution of the transposition plan for the remedies directive: bilateral meetings 
with Member States, discussion at the level of ACPC, informal contacts with relevant 
business associations, nati onal judges and members of independent review bodies, 
assessment reports, etc. 
• Establishing and start of ex ecution of a transposition plan  for the defence directive: 
identify liaison contacts, provide Member States  with a "concordance ta ble" template, send 
questionnaires to Member Stat es about their planning and time frame for transposition, 
start organising bilateral meetings and ma ke use of ACPC meetings to discuss 
transposition matters, etc. 
10.2.4.4.  Summary by sector 
The two main areas of operation in the field of  control of application of public procurement 
law are the adaptation of enforcement and the tran sposition of new Direc tives. In the field of 
enforcement, the shift of part of the caseload to the EU-Pilot will continue in 2009 but largely 
depends on the central Commi ssion support measures and the Member State commitment. 
Transposition activities as regards the remedies  Directive should be finished by the end of 
2009 whereas the transposition activities relate d to the Directive for Defence and Sensitive 
Security procurement will continue until early 2011.  
10.2.4.5.  List of acts 
http://ec.europa.eu/internal_marke t/publicprocurement/legislation_en.htm  
EN 249   EN 10.2.5.  Regulated professions (qualifications) 
10.2.5.1.  Current position 
(1) General introduction 
This sector deals with Member States' requirements for professi onal qualifications which lead 
to barriers to the free moveme nt of qualified professionals in the Single market. To alleviate 
these barriers, Directive 2005/36/ EC of the European Parliame nt and of the Council on the 
recognition of profe ssional qualifications320 implements Articles 39, 43 and 49 of the EC 
Treaty for all regulated professi ons. Beneficiaries are all EU citizens holding a professional 
qualification. For lawyers, additional specific rules have been laid down at EU level (Directive 77/249/EC on the free provision of services of lawyers
321 and Directive 98/5/EC on 
the freedom of establishment of lawyers322). 
(2) Report of work done in 2008 
The work carried out in 2008 concentrated on the transposition, implementation and 
accompanying measures to Directive 2005/36/EC w ith a view to enabling citizens to make 
use of the new rights offered by th e legislation (in particular the free provision of services and 
the mutual recognition under the so-called general system for cases which were previously 
only covered by the Treaty). The Commission also dealt with all kind of difficulties reported by citizens when applying for recognition, such  as undue delays for decision taking, 
compensatory measures required by the host Me mber State, negative decisions and requests 
for supplementary documentation, using all availa ble means and in particular the network of 
national coordinators for Directive 2005/36/EC , the EU PILOT and SOLVIT according to the 
nature of the problem, to find appropr iate and EU law compliant solutions. 
(a) Management of the acquis through committees and expert groups 
The Commission held 7 meetings of its expert group composed of the national coordinators 
for the application of Direc tive 2005/36/EC. Its main tasks have been on the one hand to 
develop and to agree on best administrative practices that national competent authorities 
would then apply when processing applications. The other main task has been to examine the 
compliance with Directive 2005/36/EC of new di plomas in architecture notified by Member 
States with a view to their in sertion in the annex to the Di rective, granting the right to 
automatic recognition to the holde rs of these diplomas. In tota l, 28 diplomas were examined. 
This work has allowed the ach ievement of a good level of mutual trust between Member 
States avoiding subsequent pr oblems of bad application. 
In addition the regulatory committee of Dir ective 2005/36/EC met 3 times and voted on a 
Commission regulation amendi ng Annex II to the Directive which was adopted by the 
Commission on 31 July 2008. This is the second time an amendment to the Directive is 
introduced by a regulation avoiding transpositi on delays. These meetings also allowed for 
peer pressure to accelerate the transposit ion of Directive 2005/36/EC for which a large 
number of MS were late. 
                                                
 
320 OJ L 255, 30.9.2005, p. 22 
321 OJ L 78, 26.3.1977, p. 17 
322 OJ L 77, 14.3.1998, p. 36 
EN 250   EN In both instances questions of interpretation an d application were discussed and explanatory 
papers circulated by the Comm ission also available on the Commission's website in the form 
of frequently asked questions. This has been in  particular the case for the new rights offered 
by directive 2005/36/EC (see supra). 
(b) Enquiries, problems and complaints management: 
Due to the large number of beneficiaries (all EU citizens holding a professional qualification 
and who wish to work in another MS even te mporarily), a la rge number of enquiries is 
received which do not necessarily reveal a proble m of application of EU law. In those cases 
the Commission refers citizens who wish to enqu ire about the situation in MS to the national 
contact points under Directive 2005/36/EC whose task it is to give all information about 
regulated professions in their territory but also about procedural steps to be taken. In addition 
the Commission has set up a network of nationa l contact points to imp rove the flow of 
information to the benefit of citizens. 
When enquiries reveal a potential problem of application of EU law the Commission mostly 
refer citizens to the SOLVIT ne twork and/or insert their cases  into the system with the 
citizen's agreement. As a result the number of cases in SOLVIT has increased by 43% to 
reach a total of 206 cases. Out of these 206 cases, 173 were solved (84%) (see SOLVIT 2008 
report). A large number of SOLVIT cases are found in Spain, but fortunately the Spanish 
SOLVIT Center managed to solve 85% of them. It  remains that there is a particular problem 
with implementing EU law in this sector in particular undue delays for processing 
applications. 64 new complaints were regist ered in 2008 which represents a decrease 
compared to previous year (74 new cases in 2007). This is mainly to be attributed to the increased use of SOLVIT. 
In addition the new rights c onferred on citizens by directiv e 2005/36/EC raised difficulties 
either because the directive was still not transposed (cases in Spain and Greece when migrants 
wish to provide services temporarily and are being denied any right due to the lack of 
transposition measure), or because the transposition measures went beyond what was 
provided for in the Directive (cases in Italy).  
(c) Management of infringements 
The volume of complaints and infringements con cerning restrictions in  breach of Articles 39, 
43 and 49 of the EC Treaty and the directives on the mutual  recognition of professional 
qualifications which were dealt with, remain ed broadly stable in 2008. Approximately 100 
decisions (to proceed or to close a case) were taken. 
Concerning the infringement proceedings  opened  against Member States  for non-
communication of national implementing measures , the situation is the following:  
– For Directive 2006/100/EC providing for tec hnical adaptations to  the Directives 
on professional qualifications further to the accession of Bulgaria and Romania  to 
the European Union
323, the Commission decided to refer 9 Member States 
(Belgium, Cyprus, Greece, Spain, France,  Ireland, Luxembour g, Portugal and the 
United Kingdom) to the Court of Justice. The Court of Justice already held that 
                                                 
323 OJ L 363, 20.12.2006, p. 141 
EN 251   EN Belgium324 and Luxembourg325 had failed to fulfil th eir obligations  under this 
directive. The proceedings opened agains t 13 Member States (the Czech Republic, 
Germany, Denmark, Estonia, Hungary, It aly, Latvia, Malta, Austria, Poland, 
Romania, Slovakia and Sweden) have been closed. 
– For Directive 2005/36/EC on the recognition of profes sional qualifications326, the 
Commission decided to refer 17 Member States (Belgium, Cyprus, Germany, 
Greece, Estonia, Spain, France, Hungary, Ir eland, Latvia, Lithuania, Luxembourg, 
the Netherlands, Austria, Poland, Portuga l, Sweden and the United Kingdom) to 
the Court and to send a reasoned opini on to Denmark. The proceedings opened 
against 8 Member States (Bulgaria, th e Czech Republic, Malta, Romania, Italy, 
Slovakia, Slovenia and Finla nd) could be closed as th ey completed transposition. . 
The Commission decided to send to Germany a letter of formal notice under Article 228 of 
the EC Treaty, concerning the measures envisa ged to comply with the Court of Justice's 
judgment327 in case C-456/05 regarding transitional provisions al lowing psychotherapists  
who fulfilled certain conditions to obtain author isation to practise under the German statutory 
sickness insurance schemes.  
The Commission decided to send to Spain a lette r of formal notice unde r Article 228 of the 
EC Treaty, requesting information on the measur es taken to comply with the Court of 
Justice's judgment328 in case C-39/07 regard ing recognition of professi onal qualifications of 
hospital pharmacists329. 
The infringements cases opened against Bulg aria, the Czech Republic, Hungary, Latvia, 
Lithuania, Malta, Poland, Romania, Slovakia and Slovenia because of the nationality 
condition for notaries  did not progress in 2008. This is due to the fact that almost all the 
Member States concerned decided to support the Member States already referred to the Court 
of Justice (Germany, Austria,  Belgium, France, Greece and Luxembourg). In these 
circumstances, it was considered necessary to examine and take into account all new 
arguments which might be brought forward by th ese Member States before moving to the 
next step in the concerned infringement pro ceedings. Estonia has abolished the condition of 
nationality and the Netherlands are still in th e process of abolishing it. The Commission also 
decided to send Portugal a letter of formal notice on the same issue, because even though 
Portugal formally abolished the nationality cond ition previously in force for notaries, this 
condition thereafter appeared  to still be applied. 
                                                 
324 Judgment of 11.12.2008, Case C-239/08 Commission v. Belgium  
325 Judgment of 4.12.2008, Case C-224/08 Commission v. Luxembourg  
326 OJ L 255, 30.9.2005, p. 22 
327 Judgment of 6.12.2007, Case C-456/05 Commission v. Germany; The Court confirmed the 
Commission's position by holding  that the transitional provisions in question are not compatible with 
EU law, inasmuch as they take no account of immigrant psychotherapists’ similar professional 
experience with the social security  systems of other Member States. 
328 Judgment of 8 May 2008, Case C-39/07 Commission v. Spain  
329 The Court confirmed that, even though the basic diploma of pharmacist benefits from automatic 
recognition under Directive 85/433/EEC on the mutual recognition of diplomas in pharmacy, OJ L 253, 
24.9.1985, p. 37, the recognition of a pharmacist's specialist title falls under the general system of 
recognition of diplomas laid down by Directive 89/48/EEC329, which then needs to be transposed for the 
speciality concerned. It has to be noted that, in the meantime, this Directive has been replaced by 
Directive 2005/36/EC, which entered into force on 20 October 2007 and which confirms and takes over 
the legal framework appropriate to this issue under Directive 89/48/EEC) 
EN 252   EN Finally, the Commission d ecided to refer France to the Cour t of Justice for its breach of 
Articles 39, 43 and 49 of the EC Treaty and Dir ective 92/51/EEC on the general system for 
the recognition of diplomas by refusing to allow snowboard instructors  from other Member 
States to pursue their specifi c professional activities in France on the grounds that these 
activities can only be practised by other prof essionals in France (i.e. ski instructors)330.  
(d) Petitions 
In 2008, 24 petitions have been dealt with. These petitions did not reveal any new horizontal 
issue; they reflected the issues raised in  enquiries and complaints which the Commission 
receives. Most cases concern complex individua l situations for which the petitioners cannot 
benefit from the recognition. 
(e) Preventive measures being taken in rela tion to recently adopted new legislation-
conformity assessment of national trans position, transposition package meetings, 
development of guidelines, initiation of networki ng systems to manage the new legislation, etc 
In order to monitor the appropriate and smooth application of  this Directive, the work on the 
Code of Good Conduct which specifies the good national administrative practices competent 
authorities should follow when processing appl ications, was started an d progressed well with 
the Group of Coordinators of Directive 2005/36/EC. 
In addition, the database on regulated professions331 which provides useful information on 
each regulated profession (contact points, compet ent authorities, statistics, etc.) was totally 
reviewed and reorganized in or der to take into account Dir ective 2005/36/EC and to better 
guide competent authorities as we ll as citizens seeking information. 
To ensure legal certainty for professions benefiting from automatic recognition, whose 
corresponding national titles are listed in Annex V to Directive 2005/36/EC, the Commission 
published twice332 the new titles and changes to existing titles notified by Member States on 
the basis of Article 21 (7) of Directive 200 5/36/EC. These publications facilitate free 
movement as they give the right to the holders of the qualifications concerned to benefit from 
automatic recognition.  
10.2.5.2.  Evaluation based on the current position 
Contrary to the legal oblig ations which Member States  had to transpose by 20.10.2007, 
Directive 2005/36/EC had not been transposed  by a majority of Member States (only 9 
Member States had completed transpos ition on 31.12.2008). For Directive 2006/100/EC, by 
end 2008 it was implemented by the majority of Me mber States (all except 9). However, due 
to the fact that Directive 2005/36/EC replaced 15 directives while maintaining their basic 
mechanisms of recognition, the non-transposition in due time by all Member States did not 
                                                 
330 On the basis of the judgment of the Court of Justice in case C-330/03 Judgment of 19 January 2006, 
Colegio de Ingenieros de Caminos, Canales y Purt os v. Administraciòn del Estado and taking into 
account the fact that the differences  between the fields of activity ar e so great that in reality the 
compensatory measures required from the migrant amount to a full programme of education and 
training, the Commission considers that France has to allow partial taking-up of the professions 
concerned. 
331 http://ec.europa.eu/internal_mar ket/qualifications/regprof/index  
332 Communication of 4 June 2008, OJ C 137 of 4.6. 2008, p. 8 and Communication of 17 December 2008, 
OJ C 322 of 17.12.2008, p.3 
EN 253   EN have a major negative impact on free movement and free establishment. In the large majority 
of cases, recognition of qualifications st ill took place on the ba sis of the national 
implementing measures adopted on the ba sis of the now repe aled directives. 
The non-implementation of Directive 2005/36/EC has however revealed problems for citizens 
concerning precisely its new aspects, i.e. the fr ee provision of services for professions which 
do not benefit from automatic recognition (such as  engineers) and the subsidiary application 
of the general system of recognition of diplom as (mainly health professions such as nurses 
responsible for general care). The situation tends to improve as soon as transposition 
measures come into force. 
Due to the non-communication proceedings, the an alysis of the national measures transposing 
Directive 2005/36/EC in order to assess their conformity with Community law has not been 
started yet. As stressed in the pr evious report, the main challenge related to this directive is 
represented by the enormous numb er of national measures needed  to transpose it (hundreds of 
texts). By the end of 2008, around 700 m easures had already been notified. 
The absence of concordance tables for many Memb er States, despite repeated requests, will 
make the examination even more difficult. 
Issues raised by citizens differ according to the regime of recognition their professions enjoy. 
When the profession is under the automatic r ecognition regime (for 7 professions out of 
which 5 health professions) the difficulties enc ountered mostly relate to the situation of 
applicants from new member States (in part icular RO and BG) who were trained before 
Accession and do not necessarily enjoy so calle d acquired rights to automatic recognition or 
cannot demonstrate that they meet the necessary  number of years of professional experience. 
Host MS (mostly UK, DE, IE, FR) do not alwa ys apply the mutual recognition scheme when 
automatic recognition cannot be granted.  
For professions under the mutual recognition regi me (so called "general system") such as 
engineers, teachers, physiotherapists, accountants, sport instructors… the main difficulties 
relate to the compensatory measures required by the host MS. As it is particularly difficult for 
the Commission to judge whethe r there are effectively substa ntial differences between the 
migrants qualifications and the host MS requirements these cases are best dealt with, when 
home and host MS can discuss the issue th rough the SOLVIT network. Engineers have 
particular difficulties to be recognised in Greece,  Cyprus and Spain, tourist guides in Italy and 
Spain, sport instructors in France. 
A key role for a smooth implementation is the IMI System; it allows competent authorities 
from the host and home MS to exchange information linked with an application for recognition where doubts are raised in relation to  the professional. The pilot phase of the 
system for four professions (doctors, pharmacist s, physiotherapists, and accountants) revealed 
to be a success and hence it was extended by  the end of 2008 to seven other professions 
including the main health professions. In  2008, the system allowed 375 exchanges of 
information. 
10.2.5.3.  Evaluation results 
(1) Priorities  
As long as not all MS have achie ved transposition there still will  be the need to  put pressure 
on them to complete their work. For some Me mber States, due to th eir structure, around 100 
EN 254   EN texts need to be adopted. However, in parallel, the priority is shifted to the conformity check 
based on a risk based approach identifying key issues to be checked, as well as on individual 
cases lodged by plaintiffs.  
For the time being, the following are being iden tified as key issues: the new regime for 
providing services for professi ons falling under the general sy stem of recognition because 
there was no specific regime for the provision se rvices for all the professions falling under the 
previous Directives 89/48/EEC and 92/51/EEC  on the general system; the subsidiary 
application of the general regime, which did no t exist either (recogni tion then fell under the 
Treaty) as well as principle questions under the Treaty such as partial access to a given 
profession. 
(2) Planned action (2009 and beyond) 
Directive 2005/36/EC is expected to be trans posed by a majority of Member States by mid 
2009. 
The main priority in this area remains, after the closure of all non-communication 
infringement proceedings, the analysis of the national measures  transposing Directive 
2005/36/EC in order to assess thei r conformity with Community law. A complete translation 
of the notified texts is the first step, which may take some time in view of the enormous 
number of national measures needed to transpose (see above). A first evaluation of the 
transposition should be available by end 2009. 
The following issues will be targeted for priority action in 2009-2010: the new regime for 
providing services  and the subsidiary applic ation of the general regime as well as principle 
questions under the Treaty such as partial ac cess, and significant issues such as a same 
profession affected in several Me mber States such as tourist gui des, or several professions in 
one Member State (in Spain and Greece in particular). 
After the adoption of the Code of Conduct  (early 2009), a "user's guide" will be established in 
order to allow a better understanding by the citizens of their rights under Directive 
2005/36/EC. The IMI system will be exte nded to all regulated professions. 
In addition the emphasis will be put on making th e regime on provision of services working, 
in particular with regard to the docume ntation which may be requested. The group of 
coordinators for Directive 2005/36/EC will be the forum for such an agre ement. This will be 
of particular help to professions such as tourists' guides who do encounter difficulties to 
provide services due to the fact that the docum ents they currently provide are not accepted in 
certain Member States.  
Work will also be continued in order to overc ome difficulties encountered by a significant 
number of nurses from Bulgaria and Romani a in particular, who should be recognised under 
the general system as they do not fulfil the co nditions to enjoy automa tic recognition (see 
above, "subsidiary application of the general system"). Howe ver these nurses cannot undergo 
the compensatory measures (i.e. adaptation peri od) which are being required, as no posts is 
offered in the host Member State, who should or ganize for it. This seems to be the case in 
Spain and the United Kingdom. 
EN 255   EN 10.2.5.4.  Summary by sector 
The transposition of Directive 2005/36/EC has pr ogressed, in particular further to several 
infringement proceedings for non-communication. This allows for starting the control of 
conformity. Implementation was enhanced by the cooperation with Member States in the 
coordinators group and by the IM I system of electronic cooper ation between Member States. 
10.2.6.  The business environment 
10.2.6.1.  Current position 
(1) General introduction 
The rules governing the four freedoms of movement – for goods , services, people and capital 
– are not, by themselves, sufficient to create a favourable climate for business to grow across 
borders. Firms need to be confident that they  can compete on a level playing field and that 
appropriate legal structures ex ist to allow all businesses, wh atever their size, to operate 
effectively across the EU. 
Harmonisation of the rules relating to company law and corporate governance , as well as to 
accounting  and auditing , is a key element of this policy. This harmonisation aims at reducing 
red tape by helping companies to operate throughout the EU on the basis of a single set of 
rules and a unified management and reporting sy stem. This system, in its turn, aims to 
increase transparency and confidence in corp orate governance, enhancing the protection of 
investors, employees and the public against corporate cheating, fraud and mismanagement. 
(2) Report of work done in 2008 
In the field of company law and anti-money laundering the transposition deadline has passed 
in case of seven Directives  in 2007-2008: Directives 2004/109/EC, 2005/56/EC, 2005/60/EC, 
2006/70/EC, 2007/14/EC, 2006/68/EC and 2007/63/EC.  
In the absence of national tran sposition measures more than 110333 infringement procedures 
were handled in 2008, but monitoring the transpos ition measures requires pa rticular efforts as 
well. A high volume of national transposition measures will ha ve to be checked in 2009 and 
2010, which will have significant implications in  terms of resources as many times complex 
legal instruments (for example Commercial  Codes) are communicated as national 
transposition measures. The absence of concor dance tables is another issue as regards 
conformity checks as they are essential to facilitat e the check of comple teness, but Member 
States are often reluctant to communicate concordance tables.  
In order to overcome difficulties related to  the high number of non-communication cases, 
conformity checks and the need for translation of thousands of pages of national transposition 
measures an Action Plan has been established in 2008. A wide range of preventive measures 
has been put in place:  The Commission kept up pressure on Member States through experts' 
meetings334 by asking details on transposition from Member States not having transposed 
directives, bilateral discussion in the margins of these meetings, strengthening cooperation 
                                                 
333 in the field of company law and anti-money laundering only 0.7% of the cases were non-conformity 
cases 
334 (Company Law Expert Group and Committee on the Prevention of Money Laundering and Terrorist 
Financing) 
EN 256   EN with national authorities and efficient mana gement of infringement cases. Scoreboards on 
state of play of transposition are publis hed every month since January 2008. Package 
meetings were used to raise th e issue of transposition, and, when  necessary, political pressure 
was increased by sending letters to Member Stat es urging transposition. Without prejudice to 
the assessments driven by specific complaints, at  a first stage, the conformity checks are done 
on the basis of a risk-based a pproach. The risk is assessed taking into account both the nature 
of the directives, and, within ea ch directive, of the provisions concerned. Also in the context 
of anti-money laundering , the implementation of Regulation 1781/2006 leaves to Member 
States the introduction of an a ppropriate regime of sanctions. In the absence of notified 
measures, 15 infringements procedures were ope ned at the beginning of 2008 out of which 13 
have already been closed.  
As regards external enquiries in the filed of company law and anti-money laundering there 
was a relatively low number of petitions, questions, complaints, the majority of which fell outside of the scope of Community law or  did not constitute an infringement.  
The transposition deadline in case of direc tive 2007/36/EC will expire on 3 August 2009. The 
Commission has already organise d a transposition workshop and is ready to provide further 
assistance in case it is necessary in relati on to Directive 2007/36/EC . Member States are 
always reminded to the importance of timely tr ansposition at the relevant committee meetings 
and systematically asked to provide information on state of play. 
The proposal for the Statute of European Private Company was adopted on 25 June 2008
335, 
and Simplification of existing Company Law Directives (Third –Sixth, First-Eleventh) will be continued in 2009. 
In the field of auditing , the Commission worked on preparing a correct and timely 
implementation of the Directive 2006/43/EC
336 on statutory audits of annual accounts and 
consolidated accounts, whose transposition deadline was 29 June 2008. Potential problems have been discussed at the meetings of th e Audit Regulatory Committ ee and, on an individual 
basis, during bilateral meetings organized with  Member States. Nineteen bilateral meetings 
were held with Member States in order to discuss specific individual issues faced by the 
Member States and to provide them with the information needed to avoid bad transposition of the Directive 2006/43/EC. Moreover, one transposition workshop was organized in 2008 to assist Member States. A transposition scoreboa rd was drafted and has been updated regularly 
and published on the Commission's website since 1 July 2008. 
Reasoned opinions were sent to Austria,  Belgium, Cyprus, Czech Republic, Germany, 
Estonia, France, Ireland, Italy, Latvia, L uxemburg, Malta, Poland, Spain, Sweden and the 
United Kingdom (regarding the te rritory of Gibraltar) for non-co mmunication of their national 
transposition measures. Since then, it was proposed to close the infringement cases against Belgium and France which have communicated their national transposition measures.  
To facilitate the establishment of auditor public oversight bodies in  Member States, as 
required by the Statutory Audit Directive and to help the existing ones become operational, 
                                                
 
335 Currently discussed in the Council and the Parliament. Simplification of existing Company Law 
Directives (Third –Sixth, First-Eleventh) 
336 OJ L 157, 9.6.2006, p.87. 
EN 257   EN the expert group "European Group of Auditors ' Oversight Bodies" (EGAOB) continued its 
work on exchanging good practice concerni ng the establishment of those systems337.  
In the area of statutory audit,  several legislative instruments were adopted in 2008 to allow a 
good implementation of the provisio ns of the Directive 2006/43/EC. 
The comitology powers of the Commission under Directive 2006/43/ EC have changed 
following the adoption by the European Parlia ment and the Council of  Directive 2008/30/EC 
of 11 March 2008 amending Directive 2006/43/EC on statutory audits of annual accounts and 
consolidated accounts, as re gards the implementing powers conferred on the Commission338. 
New powers might be used by the Commission in 2009/2010 to adopt international auditing 
standards and common standards for audit repor ts for annual or consolidated accounts. The 
regulatory procedure with scrutiny will apply to  the cases in which the Commission will make 
use of these powers. 
The Commission adopted the Decision 2008/627/EC concerning a transitional period for audit 
activities of certain third count ry auditors and audit firms339 on 29 July 2008. On 6 May 2008, 
the Commission adopted the Recommendation 2008/ 362/EC on external quality assurance for 
statutory auditors and audit firm s auditing public interest entities340. The Member States were 
invited to implement the provisions of the Recommendation and to inform the Commission 
about the measures taken on its basis by 6 May 2009. On 5 June 2008, the Commission 
adopted the Recommendation 2008/4 73/EC concerning the limitation of the civil liability of 
statutory auditors and audit firms341 pursuant to Article 31 of  Directive 2006/43/EC.  
In the field of accounting,  the transposition deadline of Directive 2006/46/EC amending in 
particular some provisions of the 4th and the 7th Company Law Directives expired on 5 
September 2008. The Commission services contro lled the application of the relevant 
Community law by the means of in fringement procedures and di scussions in meetings with 
the Member States.  
The majority of infringement cases st ems from the non-communication of national 
transposing measures. In December 2008, the Comm ission sent Letters of Formal Notice to 
15 Member States on the basis of not having communicated the transposition of Directive 
2006/46/EC. The Commission services  keep the pressure on Memb er States for encouraging 
the swift transposition mainly  via the Accounting Regulatory Committee. As a result, by 
March 2009, 3 cases could be closed. Thus, it is e xpected that the transposition deficit will be 
considerably reduced by the end of 2009. 
                                                 
337 Four meetings were organized in 2008. A sub-group held five meetings in 2008 at which it discussed 
issues related to the transposition of Articles 45, 46 and 47 of the Directive 2006/43/EC in Member 
States 
338 OJ L 81, 20.3.2008, p.53. 
339 OJ L 202, 31.7.2009, p. 70. The transitory period a llows to certain third country auditors and audit firms 
to continue their audit ac tivities in the EU without being register ed, provided that certain conditions are 
met. To implement the provisions of Article 46 (2) of the Directive 2006/43/EC which requires the 
Commission to assess the equivalence of third coun try auditor oversight, quality assurance and 
investigation and penalties systems in cooperation with Member States and make a determination on it. 
340 OJ L 120, 7.5.2008, p. 20. 
341 OJ L 162, 21.6.2008, p. 39. The goal of this Recommendation is to ensure a good functioning of a 
competitive market for audit services in which there is a sufficient choice of audit firms capable of 
conducting and willing to conduct statutory audits of companies the securities of which are admitted to 
trading on a regulated market of a Member St ate. The implementation is foreseen in 2010. 
EN 258   EN In April 2008 the Commission adopted a fa st-track proposal to amend the 4th and 7th 
Company Law Directives in order to simplify fi nancial reporting for small and medium-sized 
companies; in February 2009 the Commission a dopted another simplification proposal to 
amend the 4th Company Law Directive establishing a Member State opti on to relieve so-
called micro entities from the obligation to prepare annual accounts. Currently, the 
Commission services are working on a larger s implification and modernisation proposal to 
amend the 4th and 7th Company Law Directives. 
10.2.6.2.  Evaluation based on the current position 
In the field of company law and anti-money laundering  the deadlines for transposition of 
Directives 2004/109/EC, 2005/56/EC, 2005/ 60/EC, 2006/70/EC, 2007/14/EC, 2006/68/EC 
and 2007/63/EC have recently passed. The deadline for the transposition of Directives 2007/36/EC will expire on 3 August 2009. 
Although transposition was late in several member  states and for many of these directives, the 
complementary initiatives covered by the Action Pl an had very positive re sults: by February 
2009, 82 cases (75%) were closed due to notif ications of complete transposition from 
Member States and 25 cases ( 22%) were referred to the Cour t. The situation has clearly 
improved but given the importance of the different directives in the fiel ds of company law and 
anti-money laundering, pressure should be kept up on Member States until full transposition 
is ensured.  
There seems to be a more systematic problem in some Member States who are consistently 
late with implementation. It is not clear whet her this is due primar y to difficulties with 
Parliamentary procedures or that draft legislation is not submitted in a timely manner. This needs to be explored further wi th those Member States who have the greatest problems. Better 
involvement of national Parliaments during th e negotiations of directives may possibly 
accelerate the process of transposition.  
The highest transposition deficit can be identified in case of anti-money laundering directives 
(7 Member States are late) and the directive on  cross-border mergers (6 Member States are 
late). It should, however, be noted that thanks to the efforts of the Commission the 
transposition deficit has been  reduced by more than 50% in  case of anti-money laundering 
and by more than 40% as regards the cr oss-border mergers directive in 2008.  
Late transposition of anti-money laundering  directives is particularly problematic since it 
may jeopardize fight against money laundering and terrorist financing as well as stability and 
reputation of the financial sector and the si ngle market. Moreover, delayed implementation 
might create difficulties for the banking sector in terms of costs related to different rules in 
force in Member States.  
In the field of company law  the cross-border mergers directive
 aims at facilitating mergers of 
limited-liability companies on a cross-border basis, without winding up of the acquired 
company. However, late transposition might ha ve direct effect on companies of Member 
States which transposed the directive on time, but  wish to merge with companies of a Member 
State in delay. In the absence of national rule s providing for compliance with the directive, 
cross-border mergers might have significant cost  implications and administrative burden for 
companies concerned. Delay in transpositi on in relation to transparency directives  could 
jeopardize investor protection, we aken investor confidence and cr eate barriers to cross-border 
investment. Similarly, inconsistency between na tional legislation as regards transposition of 
EN 259   EN simplification directives  could result in additional costs for companies operating in Member 
States not having reduced admini strative burdens. Moreover, in the context of the financial 
crisis full transposition of the second company la w directive is crucial in term of facilitating 
the raising of capital, the restructuring of capital ownership in public limited liability 
companies, but it also provides for harmonise d safeguards for protection of creditors and 
minority shareholders. 
There have been serious concerns in 2008 fo r 6 Member States in particular. Spain342 has 
been late with the transposition of 5 directives the transposition deadline of which has already 
expired, but also Belgium343 was due to transpose 4, France344, Luxembourg345, Portugal346 
and Sweden347 3 directives each in 2008. The situation can be potentially problematic in case 
of the Czech Republic348, Greece349, Ireland350 and Italy351 which Member States have been 
each late with the transpos ition of 2 directives. Cyprus352, Hungary353 and Poland354 have not 
transposed 1 directive. By April 2009, Spain has notified national transposition measures 
implementing 3 Directives and the Czech Republic and Portugal also have transposed a Directive. 
Concerning auditing,  the obligation for Member States to establish independent competent 
authorities to ensure a public oversight, exte rnal quality assurance, investigations and 
penalties of statutory auditors and audit firms ra ised a high number of issues in many Member 
States and slowed down th e transposition process. 
In the field of accounting, the Commission Services  were able to close the majority of the 
non-communication cases regarding the Directiv e 2006/46/EC, but still have to pursue some 
cases, including the non-transposi tion of the measures in the UK - territory of Gibraltar. 
Furthermore, the fast-track proposal to amend the 4
th and 7th Company Law Directives in 
order to simplify financial reporting for sma ll and medium-sized companies adopted by the 
Commission in April 2008 was successfully ad opted by the EP and the Council in 2009 and 
published in the Official Journal (Directive 2009 /49/EC). The Member States shall transpose 
the provisions of this di rective before 1 January 2011. 
In the auditing sector, the work carried out by the Commission to prepare a timely and 
correct transposition of the Directive gave result s, as more than half of the Member States 
                                                 
342 Cross-border merger, anti-money laundering and simplification directives (Directives 2005/56/EC, 
2005/60/EC, 2006/70/EC, 2006/68/EC and 2007/63/EC 
343 Cross-border merger, anti-money laundering and simplification directive (Directives 2005/56/EC, 
2005/60/EC, 2006/70/EC and 2007/63/EC) 
344 Transparency directive and anti-money launde ring (Directives 2007/14/EC, 2005/60/EC and 
2006/70/EC) 
345 Cross-border merger and simplification directives (Directives 2005/56/EC, 2006/68/EC and 
2007/63/EC) 
346 Cross-border merger and simplification directives (Directives 2005/56/EC, 2006/68/EC and 
2007/63/EC) 
347 Cross-border merger and anti-money laundering (Directives 2005/56/EC, 2005/60/EC and 2006/70/EC) 
348 Transparency directiv es (Directives 2004/109/EC and 2007/14/EC) 
349 Cross-border merger and simplification directives (Directives 2005/56/EC and 2007/63/EC 
350 Anti-money laundering Directives 2005/60/EC and 2006/70/EC 
351 Transparency and simplification directive (Directives 2007/14/EC and 2007/63/EC) 
352 Simplification Directive 2007/63/EC 
353 Simplification Directive 2007/63/EC 
354 Anti-money laundering Directive 2005/60/EC 
EN 260   EN which did not transpose the Directive in 2008  committed to do so in 2009. It is therefore 
expected that more Member States will have established public oversight bodies and that the 
public oversight bodies that were already established will become operational in 2009. 
10.2.6.3.  Evaluation results 
(1) Priorities Priorities in the field of company law and money laundering  will not change substantially 
in 2009. The commission will endeavour to reduce further transposition deficit, follow up closely non-communication cases and comple te conformity assessment of national 
transposition measures. 
Timely transposition and effi cient cooperation with member States in the transposition 
process as well as in the implementation and ap plication phase are also  the key objectives in 
auditing and accounting areas. Anothe r priority for the audit sector  is to ensure that auditor 
public oversight bodies pursuant to the Direc tive 2006/43/EC are set up and are operational in 
the Member States.  
(2) Planned actions In the field of company law and anti-money laundering  risk based conformity checks will 
be continued and first phase conformity asse ssment will most probably be outsourced under a 
framework contract in order to overcome problems of resources related to conformity checks.  
As complementary instruments included in the Action Plan resulted to be effective in 
reducing transposition deficit in  the fields of company law and anti-money laundering they 
will continue to be applied. Concerning non- communication cases Member States will be 
requested to provide detailed information on st ate of play of transposition at relevant 
committee meetings. A scoreboard in the fi eld of company law a nd anti-money laundering 
will be published in each month and in case of the need package meetings, press releases and 
political pressure via letter s addressed to Member States will be used as well.  
Non communication and eventual partial communication cases will be followed up closely 
and in the absence of national transposition measures will be referred to the Court as soon as 
possible. The Commission has already organise d a transposition workshop and is ready to 
provide further assistance in case it is n ecessary in relation to  Directive 2007/36/EC. 
In auditing area the Commission will examine measures transposing directive 2006/43/EC. 
Where necessary, package and bilateral meetings will continue with the Member States concerned to discuss the transposition process and the quality of the transposition. Also, it will be examined whether Member States had set up auditor public oversight bodies according to the Directive and that these bodies are op erational. The transposition scoreboard will 
continue to be updated regularly and to  be published on the Commission website. 
The expert group "European Group of Auditors ' Oversight Bodies" (EGAOB) and the existing 
subgroups will also continue their work on fac ilitating co-operation between public oversight 
bodies established by the Member Stat es pursuant to Directive 2006/43/EC.  
Finally, it is intended to launch a study on the evaluation of the functio ning of the Directive 
by the end of 2009.  
EN 261   EN In the case of the accounting,  the Commission Services will vi gorously pursue infringement 
cases regarding Directive 2006/46/EC whose tran sposition deadline expi red. In the case of 
newly adopted Directives, the Commission serv ices will increasingly use complementary 
measures such as possible transposition workshop s, bilateral meetings and discussions within 
the Accounting Regulatory Committee. 
As regards the planned overhaul of the 4th and 7th Company Law Directives, the Commission 
services are pursuing public consultation, meetin gs with stakeholders, study on administrative 
costs stemming from the requirements of the 4th and 7th Company Law Directives and 
targeted questionnaires in order to be able to  present the amending pr oposal accompanied by a 
corresponding Impact Assessment. 
10.2.6.4.  Summary by sector 
In the field of company law and anti-money laundering due to the high number of 
Directives the transposition deadline of which has passed recently the main issues remains 
unchanged in 2009: reducing further transpositi on deficit and complete conformity checks. 
Due to the Action Plan established in 2008, 97 % of the infringements were either closed 
(75%) or referred to the Court ( 22%). Consequently, actions and instruments identified in the 
Action Plan will be applied in 2009 as well and the Commission expects to reduce further transposition deficit. In order to  overcome difficulties related to  conformity checks, risk-based 
assessments will be continued and first phase  conformity checks will most probably be 
outsourced. Infringements will be followed up stric tly and political pressure will be kept up 
on Member States which are late with transposition. 
10.2.7.  Protection of rights 
10.2.7.1.  General introduction 
Intellectual property encompasse s two specific areas where Community legislation provides 
for common rules: industrial property
, which includes inventions, trademarks, industrial 
design, and geographical indications of source; and copyright , which includes literary and 
artistic works such as novels, films, musical  works, paintings, photographs, and architectural 
designs. Rights related to copyrig ht include those of performing artists in thei r performances, 
producers of phonograms in their recordings, and those of broadcasters  in their radio and 
television programs. Community law in this area also contributes to fight against piracy and 
counterfeiting . 
10.2.7.2.  Report of work done in 2008 
In the area of industrial property , further monitoring on Memb er States' obligation to 
designate Community design courts pursuant to  Art. 80 of the Regulation (EC) 6/2002 on 
Community  designs  was carried out. Following the referral to the European Court of Justice 
under Art. 226 EC over failure to  do so, France brought its legi slation in compliance with the 
court judgment. 
In the trade mark  area, further work on alleged infringments by Member States was done 
based on private complaints. Moreover, the Commission started ev aluating the overall 
functioning of the EU trade mark  system as a whole, by carrying out an EPTB survey on trade 
marks. 
EN 262   EN The Communication " An Industrial Property Rights Strategy for Europe " was adopted in July 
2008. It reflects the need expressed by European ri ght holders to obtain an effective industrial 
property protection through a cross-cutting policy for industrial property rights . This 
Communication represents a useful tool for de veloping in the upcoming years a clear legal 
framework in this field in orde r to further improve the level of protecti on. It sets out to 
support inventors in making informed choices on the protection of th eir industrial property 
rights and calls for robust enforcemen t against counterfeiting and piracy.. 
In relation to compulsory licensing of patents  relating to pharmaceutical products (Regulation 
816/2006 of 17 May 2006) Member States notifie d the Commission the designated competent 
authority.  
In the field of de sign protection of spare parts , no agreement has been yet reached by 
Member States on the Proposal fo r a Directive of the European Parliament and of the Council 
amending Directive 98/71/EC on the legal prot ection of designs. The Parliament already 
adopted the proposal with compromise amendmen ts end of 2008. Further work needs to be 
done at Council level in order to overcome th e problems that lead to fragmentation of the 
internal market for design protection of spare parts.  
End of 2008 the Commission worked to amend Regulation (EC) No 2869/95 on the fees 
payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) 
and Regulation (EC) No 2868/95 implementi ng Council Regulation (EC) No 40/94 on the 
Community trademark . The proposal also aims at reducin g fees and administrative burdens 
on both the OHIM and its users by simplifying th e existing fee structure. The Commission 
will adopt on 31 March 2009 the draft Regulati on. Publication will take place on 30 April 
2009 to have the new fees applicable as from 1 May 2009.  
Following requests from some EU Member Stat es to better substantiate the compelling 
reasons for the creation of the Community patent  and a Unified Patent Litigation System 
(UPLS) , Commission contracted in 2008 two studies on the economic cost-benefits of (i) the 
Community patent and (ii) the Unified Patent Litigation System. For the first time, all 
available sources and data on these topics have  been brought together and analysed in a 
systematic way, and Member States and stakehol ders now have a much better picture not only 
of the shortcomings of the present patent syst em but also of the expected benefits from a 
Community patent and a unified court system.  
In the area of the enforcement, the Commission monitored the tra nsposition of Directive 
2004/48/EC355. The Directive had to be implemente d by Member States by 29 April 2006. 
The ECJ took three decisions against German y, Luxembourg and Sweden for failure of 
transposition of the Direc tive according to Art. 226 EC. Germany notified its national 
measures in July. At the end of 2008, infringe ment procedures against 2 Member States 
(Sweden and Luxembourg) were still open.  
The Commission in July 2008 a dopted a Communication on an Industrial Property Rights 
Strategy for Europe  where a specific chapter was dedicate d to the enforcement of intellectual 
property rights. Subsequently the Council in September adopted a Resolution on a comprehensive European anti-counterfeiting and anti-piracy plan. 
                                                
 
355 Add reference 
EN 263   EN 10.2.7.3.  Evaluation based on the current position 
Within the framework of assessing the trade mark system  and further to the EBTP survey the 
Commission intends to further study the overa ll functioning of the Co mmunity and national 
trademark systems. The aim of this assessment is to identify potential areas for improvement, 
strengthening and future development of this overall system to the benefit of users. The 
results shall serve as a basis for the future re view of the Community trade mark system and 
enhanced cooperation between the OHIM and nationa l offices. On their basis, a proposal for a 
review of the Community Trademark Regulation is planned right away. 
In the patents area, the absence of a protection at Community level has an impact on the 
single market and hampers the free movement of knowledge to be a reality. This issue has 
been raised several times by the users and recent  developments in the area are revitalising the 
debate on the patent system in Europe and se t out a way forward to a Community patent and 
improved patent jurisdiction system for the EU . Moreover, the fragmentation of the patent 
system within the EU has also an imp act on the application of the regulation on 
Supplementary Protection Certificates (SPCs).  
In the field of geographical indications , EU right holders stressed the lack of protection at 
Community level for non-agricult ural products. This issue has been raised as well in the 
context of multilateral negotiations within the World Trade organisation (WTO) and bilateral 
negotiations with third countri es (Free Trade Agreements: FTAs). For this reason, the 
Commission is reflecting on, so as to bring benefits to European and third countries' 
procedure. In this framework, the Commission w ill carry out an assessment on the feasibility 
of geographical indication protec tion to non-agricultural products. 
In the context of a highly polit ical area and due to the complex nature of the Directive 
2004/48/EC, the main problem encountered by th e Commission was the late transposition in  
by some Member States. The monitoring was done through a constant dialogue with the 
Member States not having transposed the Dire ctive yet. Two Member States adopted the 
transposition measures during this year. Subs equent proceedings according to Art. 228 EC 
continued against the two last Member States. 
10.2.7.4.  Evaluation results 
Planned actions 
In 2009, Member States shall submit to the Commission a report on the implementation of 
Intellectual property rights  Directive 2004/48/EC. On the basi s of national reports, the 
Commission will prepare a report on the conformity of the national measures with the provisions of the Directive. It is also expected  that the last two member States (LU and SE) 
will notify their nationa l measures during 2009. 
Following the Council Resolution of September 2008, the Commission will create a European 
Counterfeiting and Piracy Obse rvatory. Its launch is expected  to be announced on 02/04/2009 
during the High Level Conference on Counter feiting and Piracy organised by the 
Commission.  
In addition the Commission is planning to prom ote administrative cooperation, including the 
exchange of information on the enforcement of intellectual propert y rights, among Member 
States and between Member States and the Commission through an Expert Group made of 
national correspondents. The Commission will also  study how to set up an information system 
EN 264   EN for the rapid exchange of information on counterfeiting and piracy. Those and other measures 
will be presented by the Commission in a Comm unication that will be adopted during the first 
half of 2009. 
11. REGIONAL  POLICY 
11.1. Current situation 
11.1.1.  General introduction 
Based on Article 158 of the Treaty, European regional policy aims to reduce disparities 
between the levels of development of the vari ous regions and the back wardness of the least 
favoured regions by actions s upported by the Structural Funds356 (the European Regional 
Development Fund357, ERDF, and the European Social Fund358, ESF) and the Cohesion 
Fund359 (CF). ERDF and CF are under the respons ibility of the Commission services in 
charge of "Regional Policy", ESF is under the responsibility of the Commission services in 
charge of "Employment, Social Affairs and Equal Opportunities". Th ese Funds are managed 
by means of operational programmes (ERDF and ESF) or projects (CF) by the Commission 
and the Member States under shared manageme nt arrangements, as are similar programmes 
under the European Agricultural Fund for Rural Development360 and the fisheries sector361. 
New rules covering the programming period 2007 to 2013 were adopted in 2006; most of the 
316 operational programmes finan ced by the ERDF and CF were  negotiated in partnership 
and (with few exceptions) adopted by the Co mmission in 2007. The new programmes overlap 
with those of the period 2000-2006 for which the final date for expenditures was the end of 2008 (in February 2009, 385 of the 555 Cohesion Po licy programmes were extended in order 
to add another six months to cope with delays due to the international financial crisis). In 
addition, certain programmes under the 1994 to 1999 programming period still required final 
closure or the settlement of post-closure audits. 
In accordance with Community law
362, assistance under the Funds is provided according to an 
approach of complementarity  and partnership between th e Commission and the Member 
States, with due regard to their respective pow ers. In this context, implementation on the 
ground is the responsibility of the Member States , meaning in particular that the Commission 
is normally not responsible for the selection of individual projects (exceptions being the 
approval of CF projects and of major projects within ERDF programmes), as this comes under 
the competence of the national authorities. 
                                                 
356 Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the 
European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing 
Regulation (EC) No 1260/1999 (OJ L 210, 31.7.2006, p. 25). 
357 Regulation (EC) No 1080/2006 of the European Parliament and of the Council of 5 July 2006 laying on 
the European Regional Development Fund and repealing Regulation (EC) No 1783/1999 (OJ L 210, 
31.7.2006, p. 1). 
358 Regulation (EC) No 1081/2006 of the European Parliament and of the Council of 5 July 2006 laying on 
the European Social Fund and repealing Regulation (EC) No 1784/1999 (OJ L 210, 31.7.2006, p. 12). 
359 Regulation (EC) No 1082/2006 of the European Parliament and of the Council of 5 July 2006 laying on 
the Cohesion Fund and repealing Regulation (EC) No 1164/94 (OJ L 210, 31.7.2006, p. 79). 
360 Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the 
European Agricultural Fund for Rural Development (OJ L 277, 21.10.2005, p. 1). 
361 Council Regulation (EC) No 1198/2006 of 27 July 2006 on the European Fisheries Fund; (OJ L 223, 
15.8.2006, p. 1). 
362 Article 9 of Regulation (EC) No 1083/2006. 
EN 265   EN To be eligible for co-financing from the EU budget projects must be selected and 
implemented in accordance with the principles  laid down in the programming documents 
adopted by the Commission, and must comply with the specific legislation governing 
Cohesion Policy expenditure and generally appli cable rules on public procurement, state aid, 
the environment, etc, and also with relevant na tional rules. The control system put in place by 
the Member States seeks to ensure the re gularity of all expenditure and the Commission 
supervises its effective functioning. When the rules are found to have been breached making 
expenditure ineligible, the irre gular expenditure has to be ex cluded by means of "financial 
corrections". If the Member States fail to correct irregular expe nditure or to remedy 
deficiencies in the management and cont rol system, the Commission itself may impose 
financial corrections or require improvements in  the control system. In the event of serious 
deficiencies, the Commission can suspend its interim payments to a programme until the 
weaknesses are corrected. 
Most complaints tend to arise when an operator or member of the public considers that 
individual projects do not (f ully) respect relevant Community and/or national rules and 
prefers to address the complaint to the Commission rather than to his/her national authorities. Such complaints can only be resolved with cons iderable support from th e national authorities. 
From one year to another, the number of compla ints dealt with by the Commission services in 
this area is relatively stab le (below 50) and does not nor mally lead to infringement 
procedures, but the complaints are resolved by application of the norma l control and financial 
correction provisions proper to Cohesion Po licy by the national authorities or by the 
Commission. 
11.1.2.  Report of work done in 2008 
11.1.2.1.  Complaints and infringements 
In 2008, one infringement procedure was opened against Germany
363 for failure to respect its 
obligation to submit to the Commission the annual summary due under the Financial 
Regulation364(letter of formal notice sent on 23 September 2008). 
Two complaints were officially opened duri ng 2008 in the NIF system, whereas two cases 
could be closed after the parallel financial correction procedure had been closed. Adding two 
other complaints already opened before 2008, as  of 31 December 2008, five complaints in the 
NIF system concern the Regional Policy area. 
Seven complaints were introduced into the EU PILOT system. The great majority of 
complaints concerning Regional Policy do not  lead to an infringement procedure. 
A first category of complaints concerns the sele ction process of individual projects under the 
different programmes. The principal motivation for complaints was the rejection of the complainant's application for financial support. As indicated above, under shared management 
such complaints are examined by the competent na tional administrative or judicial authorities. 
A second category of complaints concerns alle ged non-compliance of individual projects with 
Community law, mostly relating to environmen t or public procurement policies and rules. A 
third category of complaints concerns the alleged defects in selected projects (examples 
                                                
 
363 NIF 2008/2127. 
364 Article 53b(3) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial 
Regulation applicable to the general budget of the European Communities (OJ L 248, 16.9.2002, p. 1). 
EN 266   EN include allegations that a particular infrastructure  project is not in the right place (e.g. roads), 
does not work properly (water sewage treatment  plants) or constitu tes poor value for the 
European tax-payer's money). In such cases, th ere is generally no spec ific allegation of a 
breach of Community law. 
For all categories, the Commi ssion services in the sector of Regional Policy use the EU-
PILOT System, as the Commission in most ca ses can only react in substance after having 
consulted the national authorities primarily responsible for the programme implementation. 
Where the examination of the allegations lead s to the conclusion that Community law has 
been breached, this may lead to the open ing of a financial correction procedure. 
As indicated in the 2007 report365, concerning the new Council Regulation on a European 
Grouping of Territorial Cooperation (EGTC)366, which entered into force on 1 August 2006, 
Member States have been required to make provi sions to ensure the effective application of 
the Regulation and to inform the Commission of  these provisions. By the beginning of 2008, 
only six Member States had adopted national ru les, against a regulatory deadline of 1 August 
2007. By the end of 2008 the Commission was offici ally informed of national rules adopted in 
another nine Member States. By the end of 2008, national rules and rules in all or most of the 
federal entities were adopted in Germany and Be lgium, leaving nine Member States still to 
adopt them. These results were achieved through  political dialogue a nd cooperation with the 
national authorities without recour se to infringement procedures. 
11.1.2.2.  Financial corrections 
Financial corrections by the Member States themselves367 and by the Commission368 are 
applied where expenditure for a project is irregul ar or where there are se rious deficiencies in 
the management and control system of the ope rational programme (under  the Member States' 
responsibility) which has put at  risk the Community contributi on paid to the programme at 
stake. In 2008 total financ ial corrections (ERDF and CF; periods 1994-1999 and 2000-2006) 
amounted to EUR 1 billion (plus EUR 518 milli on for the ESF). This amount is a marked 
increase on the EUR 288 million corrected in 2007369 due to the completion of the follow-up 
of previous audit work and an acceleration of financial correction procedures under the 
"Action plan to strengthen the Commission's s upervisory role under shared management of 
structural actions"370 (hereinafter referred to as "Action Plan"). 
11.1.2.3.  Compliance assessment 
In order to improve the management and co ntrol of the 316 progr ammes for the 2007-2013 
period, the Member State authoritie s have to undertake an assessment of the description of the 
                                                 
365 Section 10.2.2 on p. 191 of the Commission Staff Working Document (SEC(2008)2854 of 
18 November 2008). 
366 Regulation (EC) No 1082/2006 of the European Parliament and of the Council on a European Grouping 
of territorial cooperation (OJ L 210, 31.7.2006, p. 19). 
367 Article 23 of Regulation (EEC) No 4253/88 for the 1994-1999 period; Article 39(1) of Regulation (EC) 
No 1260/1999 for the 2000-2006 period; Article 98 of Regulation (EC) No 1083/2006 for the 2007-
2013 period. 
368 Article 24 of Regulation (EEC) No 4253/88 for the 1994-1999 period; Article 39(3) of Regulation (EC) 
No 1260/1999 for the 2000-2006 period; Articles 99 to 100 of Regulation (EC) No 1083/2006 for the 2007-2013 period. 
369 See Report on the implementation of the action plan; COM(2009)42 of 3 February 2009. 
370 COM(2008)97 of 19 February 2008. 
EN 267   EN national management and control system pe r programme accompanied by an independent 
report giving an opinion on their compliance with the regulatory requirements, submitted before the first intermediate payment can be made. This compliance assessment is a new element
371 seeking to ensure that the set up of management and control systems is in 
conformity with applicable rules. By end of 2008, 210 co mpliance assessment reports 
regarding national systems had been received (66% of the total due) by the Commission, of 
which 77 (37% of those received) were judged acceptable as of 31 December 2008. 
11.1.2.4.  Audits 
In 2008 the Commission carried out 64 on-the-spot au dits concerning ERDF and Cohesion 
Fund in 24 Member States focusing on management  authorities not yet audited and the review 
of bodies responsible for the closure of the 2000-2006 programmes. Deficiencies uncovered 
typically concerned organisational problems in th e systems themselves or breaches in public 
procurement or eligibility rules. The outcome of these audits may take the form of action 
plans to improve performance, and possibly al so suspension of payments or the launch of 
financial corrections procedures. 
11.1.2.5.  Simplification 
Simplification of existing legislation is in itsel f an additional means to promote a reduction in 
errors and irregularities while reducing admi nistrative burdens. In 2008, a simplification was 
introduced for certain revenue-generating projects372 waiving, on grounds of de minimis , the 
obligation to apply the detailed  provisions to all ESF projects and to those ERDF projects the 
total cost of which st ays below EUR 1 million. 
11.1.2.6.  Comitology and cooperation with Member States 
In 2008, twelve documents provi ding technical guidance in order to facilitate the 
implementation of operational programmes and to  encourage good practice( s) were prepared 
by the Commission and then presented, discusse d and finalised during the monthly meetings 
of the Committee for the Coordi nation of the Funds (COCOF)373, although this Committee 
was formally only informed about these documents. 
In addition, the Commission took the initiative to organise a seminar entitled "Control of 
structural actions – meeting the challenge" in Brussels in June 2008374, where 500 experts 
from the Member States participated. 
11.2. Evaluation based on the current situation 
11.2.1.  Satisfactory or problem atic nature of th e current situation 
In January 2005, the Commission made it a stra tegic objective to strive for a positive 
statement of assurance (DAS) from  the European Court of Auditors375. To make progress 
                                                 
371 Articles 71 and 72 of Regulation (EC) No 1083/2006. 
372 Council Regulation (EC) No 1341/2008 of 18 December 2008 amending Regulation (EC) No 
1083/2006 (…), in respect of certain revenue-generating projects (OJ L 348, 24.12.2008, p. 19). 
373 Article 103 of Regulation (EC) No 1083/2006. 
374 Organised together with Director ate General Employment, Social A ffairs and Equal Opportunities; see 
section 5.1 of the "Report on the implementation of the action plan" (COM(2009)42 of 3 February 
2009). 
EN 268   EN towards this goal it introduced an Action Plan towards an Integrated Internal Control 
Framework376 and in 2008 adopted a specific Action Plan  to strengthen its supervision in the 
structural actions area. The structural acti ons Action Plan addresse s both the causes and 
effects of the high rate of error found by the Eur opean Court of Auditors in structural actions 
expenditure. The Commission's fo cus is on increasing the effectiveness of the controls 
undertaken by the Member States and the audits of the Commission, in order to ensure that by 
the time the 2000 to 2006 programmes and projects ar e closed, the residual risk of error is as 
low as possible. For the 2007 to 2013 period, th e preventive actions will ensure that the 
Member States' systems function effectivel y from the beginning of the programme 
implementation or, failing this, that deficien cies are detected as early as possible. 
Against the background of a budget of EUR 38 b illion p.a. for the period 2000 to 2006 (ca. 
33% of the EU budget) and currently EUR 50 b illion p.a. (ca. 36% of the EU budget), the 
amount of financial corrections that have  had to be made is relatively limited. 
On the other hand, concerning the EGTC Regulation, the fact that national rules we re still not 
adopted in nine Member States at 31 D ecember 2008, is regarded as unsatisfactory. 
11.2.2.  Importance of the impact of the identified problems on th e objectives of the acquis 
Achieving the aims of cohesion policy in reducing ge ographical disparities of the programmes 
depends on effective implementation and requires that projects are selected and implemented 
correctly. Moreover, the image of this policy is negatively affected by high error rates, 
especially when the public's attention is dr awn to such errors when the yearly DAS is 
published and discussed in the media. Reduction of error rates is para mount and the planned 
actions set out below contribute to this overall priority. 
11.2.3.  Responsibility for the problems and their correction 
Under shared management, the Commission is responsible for the execution of the 
Community budget, but the Member States are responsible for the implementation of the 
individual projects. Errors a nd irregularities (which in pract ice contain very few cases of 
fraudulent behaviour) concerning th e projects are matters outside  the direct control of the 
Commission. Member States are re sponsible at first in stance to correct thes e errors (mainly by 
financial corrections on project level). The Commission makes sure, through its supervisory 
role, that the systems set up by the Member Stat es function correctly an d, in cases where the 
systems are dysfunctional or where the correc tions undertaken by Member States are not 
sufficient, applies financial corrections on progra mme or - in the case of CF – project level. 
11.2.4.  Nature, urgency and scale of th e corrective action required 
From the different actions realis ed in 2008, it is evident that th e respect of the regional policy 
acquis  requires actions of differ ent nature: corrective (financial corrections, action plans, 
infringement and complaints procedures), preventive (simplification of the acquis , 
compliance assessment, audits and controls, gu idance notes, seminars) and informal/political 
(comitology, direct dialogue). 
                                                                                                                                                         
375 See section 1 of the "Action Plan" (COM(2008)97 of 19 February 2008). 
376 COM(2006) 9 and SEC(2006) 49. 
EN 269   EN The implementation of the Action Plan focussing on measures to strengthen the supervision of 
the correct implementation of the programmes and projects, further simplification and the 
finalizing of the compliance assessment are the key elements in order to reduce as far as 
possible errors linked to the closure of the 2000 to 2006 programmes and to avoid as far as 
possible errors under the new programming exercise. 
Key actors linked to the Action Plan  are the some 90 staff (out of a total of 800) in the service 
for Audit which is part of Commission servic es for Regional Policy (i.e more than 10%). 
Financial corrections and infringement/complai nts proceedings involve of course a lot of 
other staff in the Resources Directorate, th e "Legal advice, procedures" unit and in the 
operational units. Consequently, an important part  of Regional Policy's staff is involved in the 
respect of the Regional Policy acquis in a broad sense compared to the few number of staff 
dealing with infringement and complaints procedures strictu senso . 
11.3. Evaluation results 
11.3.1.  Priorities 
The first two priorities identified377 is to ensure that the Community cohesion policy is 
efficiently and effectively implemented on the ground and to provide support for the Member 
States in their efforts to deal with the impact of the financial and economic crisis. To this end, 
the Commission in the area of Regional Policy w ill seek to ensure th rough regular monitoring 
that Member States and regions have establis hed the appropriate structures for management 
and control and will advise on measures to tackle weaknesses in administrative capacity for delivery, as well as provide appr opriate support for setting up a sufficient stock of projects. 
11.3.2.  Planned action (2009 and beyond) 
11.3.2.1.  Complaints and infringements 
The Commission services in the area of Regional  Policy will continue to apply the EU PILOT 
system and to follow similar procedures with those Member States not participating in EU 
PILOT. Involving national authorit ies in a very early stage of a complaint is important in this 
respect in a system of shared management of Community Funds. 
11.3.2.2.  Financial corrections 
The current estimate of potential financial corrections likely to result from the financial 
correction procedures underway at the e nd of 2008 is approximately EUR 2.2 billion. 
11.3.2.3.  Compliance assessment 
Concerning the 2007-2013 period, the compliance a ssessment exercise will be completed as 
fast as possible, provided the Member States submit the first documents and revised documents in due time. 
11.3.2.4.  Audits 
In terms of audit and control activities, the Commission services will ensure the full 
implementation of the actions carried over from the Action Plan to strengthen the 
                                                
 
377 See section 3.2. 
EN 270   EN Commission's supervisory role und er shared management of st ructural actions, adopted in 
February 2008, including any updated actions decided in Ja nuary 2009. Overall, it will 
continue to seek to make progress towards a positive declaration of assurance (DAS) on expenditure under Cohe sion policy through preventive and corrective measures focused on 
the closure of the programmes for 2000-2006, a nd the start up of the programmes for the 
2007-2013 period. Concerning the 2000-2006 peri od, the follow-up of action plans and 
financial corrections as well as  the completion of the review of bodies responsible for the 
closure of the 2000-2006 programmes will be th e priorities of the audit Directorate. 
Concerning the 2007-2013 period, audits will be fo cused on the work of the audit authorities 
to obtain assurance on the reliability of their wo rk, and a representative  sample of projects 
will be audited to verify the functioning of the systems. 
11.3.2.5.  Simplification 
The Commission services in the area of Regiona l Policy will also follow-up and contribute to 
the "European Action Programme on the reduction of administrative burdens"  adopted in 
January 2007  as part of the Better Regul ation programme. The global ta rget is to cut red tape 
for businesses by 25% by 2012 in the different policy areas. The Commission intends to make 
a number of concrete proposals before the summer of 2009. Further possibilities for 
simplification were examined with Member States during the second semester of 2008 
introducing further simplifica tion concerning the financia l management of the Funds
378, in the 
context of efforts to provide more support in fa ce of the international fi nancial crisis and to 
improve the effectiveness of the delivery syst em of cohesion policy.  One example is the 
simplification of eligibility rules to allow flat-rate reimbursements for overheads, an area where in the past there have been an important number of e rrors. Further simplification is 
planned later on in 2009. 
11.3.2.6.  Comitology and cooperation with Member States 
In order to help the national and regional au thorities with implementation a number of 
guidance notes were presented in 2007 and 2008. A small number, less than ten, will be 
presented to the Committee for the Coordinati on of the Funds (COCOF) in 2009. Due to the 
amendments to the legislation adopted in 2008 and early 2009, four gui dance notes will have 
to be revised accordingly. 
Concerning the national rules on the EGTC Regulation, political  dialogue and cooperation 
with the national authorities will be continued as  this approach has lead up to now to positive 
results. 
                                                
 
378 Council Regulation (EC) No 284/2009 of 7 April 2009 amending Regulation (EC) No 1083/2006 (…) 
concerning certain provisions relating to financial management (OJ L 94, 8.4.2009, p. 10). 
EN 271   EN 12. TAXATION  AND  CUSTOMS  SERVICES 
12.1. Situation in the sector of CUSTOMS 
12.1.1.  Current position  
12.1.1.1.  General introduction 
In the area of customs , in line with the Communication379 on a strategic review of better 
regulation in the European Uni on, and obviously of Communication380 on a better monitoring 
of the application of Community law, the attention is devoted to a better and simplified legal environment. As the Commission of the European  Communities is responsible for ensuring 
that Community law is correctly applied, measur es have been taken aiming at enhancing the 
correct and uniform application of the customs community legislation.  
Considering that a clear commitment from Memb er States to apply Community rules in this 
way, as well as a closer cooperation between th e Commission and the Member States are key 
elements of the process, the pr iority has been put on a preventive approach  in order make all 
parties concerned working together. The result c onsisted in the set up of a new tool enabling a 
better monitoring of a correct and uniform app lication of Community Customs law, namely 
the multi-annual programme of monitoring the comp liance of Customs legislation in different 
Member States. 
Existing measures in force: see Annex I  
12.1.1.2.  Report of work done in 2008 
In 2008 the Court of Justice deli vered 13 judgments related to customs , which represents a 
small increase from 2007 (9).  
Most of the Court's judgmen ts in this area concerned references for preliminary rulings .  
The following cases were of particular relevance: In Case Staatssecretaris van Financ iën v Heuschen & Schrouff Oriëntal Foods Trading BV 
381 
the Court ruled that where an application for remission of import duties has been submitted to 
the Commission and the Commission has alread y adopted a decision containing assessments 
of fact and law in a particular case concerni ng import transactions, such assessments bind all 
the authorities of the Member State to which that decision was addressed, in accordance with 
Article 249 EC, including the courts which have to  assess that case und er Article 220 of the 
Code. The Court also held that, if the importer has, within the period prescribed in the fifth 
paragraph of Article 230 EC, brought an ac tion for annulment of a decision of the 
Commission in respect of an application for remission of import dutie s pursuant to Article 
239 of the Code, it is for the national court to decide whether to stay the proceedings until a 
definitive decision has been given in the action for annulment or to re fer itself a question to 
the Court for a preliminar y ruling as to validity. 
                                                 
379 COM(2006)689 of 14.11.2006 
380 COM(2002)725 of 16.05.2003 
381 Judgment of 20.11.2008, case C-375/07 
EN 272   EN In Case Militzer & Münch GmbH v Ministero delle Finanze382 the Court ruled that it is not 
contrary to the principle of proportionality to hold a customs clearance agent, in his capacity 
as principal, liable for a customs debt. 
In the case KIP383 on tariff classification of multifunction apparatus combining the functions 
of laser printer and a digital electronic scanne r module, with a copier function. This case is 
relevant because of the possible impact of the judgment by the European  Court of Justice on 
the EC's defence before the WTO in the contex t of the Dispute Settlement case launched by 
the US, Japan and Taiwan against the European Communities. 
Volume of enquiries, complaints, infringeme nts work and petitions, and prioritization among 
them 
Regarding the petitions treated in the customs area, none has been registered. 
As regards customs , the Commission services opened it s own investigations regarding 
presumed infringements. This resulted in a number of 8 presumed infringements and 9 
identified ones. Two reasoned opinion (art 226) have been sent. Thus, the total number of 
infringement cases (17) is a little bit less than  in 2007 and is less for reasoned opinions (11 in 
2007). 
During 2008, 12  opened infringement cases were filed after the Member States concerned 
modified their legislation or administrativ e practice to comply with Community Law. 
Most of enquiries and complaints in this area re late to the application of Customs legislation 
in general. Priority has been given to those cases wh ich reveal clear and serious infringements 
of Community legislation. In pa rticular, emphasis was put on cases in which Member States 
had allegedly created taxes havi ng equivalent effect to Cust oms duties, such taxes being 
prohibited by Article 23 of the EC Treaty. 
12.1.2.  Evaluation based on the current situation 
• The Modernised Community Customs C ode (MCCC) was adopted on 23 April 2008.  
Regulation (EC) No 450/2008  of 23 April 2008 laying down the Community Customs 
Code (Modernised Customs Code) and entered into force on 24 June 2008. 
However, it should be noticed that its appli cation is linked to the adoption of the related 
Implementing provisions, foreseen to be enacted no later than 24 June 2013 .  
Implementing the MCCC constitutes a compre hensive exercise, going beyond the drafting 
and adoption of implementing provisions, and in cludes in particular the development of 
the necessary IT applications within the framework of the e-Customs Decision. 
• Decision No 70/2008/EEC  of 15 January 2008 on a paperless environment for customs and 
trade (the so-called 'e-Customs Decision'). The e–Customs Decision entered into force on 
15 February 2008. It covers electronic custom s systems to be set up and operated by the 
Commission and the Member Stat es, in particular but not only with a view to supporting 
                                                 
382 Judgment of 03.04.2008, cases C-230/06 
383 Judgment of 11.12.2008, cases C-362/07 and C-363/07 
EN 273   EN the implementation of both the current Comm unity Customs Code and the Modernised 
Customs Code. 
• Commission Regulation (EC)  No 1192/2008 of 17 November 2008 amending Regulation 
(EEC) No 2454/93 laying down provisions for the implementation of Council Regulation 
(EEC) No 2913/92 establishing the Community Customs Code.  
This regulation reinforces the harmonization of Simplified procedur es in setting up a 
system of single authorisations for the simplified procedures. 
12.1.3.  Evaluation results 
12.1.3.1.  Priorities 
As far as Customs are concerned, the situat ion has not significant ly changed regarding 
infringements and references to the Court, ther efore, priorities set for 2008 remain unchanged 
for 2009. Considering that the global volume of infringements and complaints remains relatively stable with previous years, and that  this trend is likely to  be stable in 2009, no 
specific action regarding priori tization should be envisaged.  
12.1.3.2.  Planned action (2009 and beyond) 
Given the evaluation of the current situation, a specific planning is not required. Nevertheless, 
it should be considered that the fact that vol ume has not increased doe s not necessarily mean 
that the situation is satisfactory and that legislation is evenly correctly applied. For instance, 
Economic operators or citizens might face problems when measures are implemented at the last moment, but, for various reasons, they do not  report to our services . In this view, a pro-
active and horizontal approach has been adopted. 
In order to be in line with the Commission' s Communication. A strate gic review of Better 
Regulation in the European Union
384, the focus is put on ensuring that Member States 
orientate their efforts towards a correct an d uniform application of Community customs 
legislation. The adopted strategy is based on a closer cooperati on with Member States and the 
outlook is oriented towards the set up of ne w tools enabling a better monitoring of the 
application of Community Customs law. With this end in view, a multi-annual programme of 
monitoring the compliance of Cust oms legislations in the whole community territory has been 
set up and developed in 2008.  
Another way of improving the corr ect application of the customs legislation is the increased 
use of  IT. Thus, in the recent years, customs ha ve developed electronic tools referred to 
usually as 'e-Customs'. The impact of th e computerisation requires indeed both a 
harmonisation and a standardisation of procedures that could ultimately contribute to a better application.  
                                                
 
384 COM(2006) 689 of 14.11.2006 
EN 274   EN 12.2. Situation in the sector of INDIRECT TAXATION 
12.2.1.  Current position 
12.2.1.1.  General introduction 
Establishing an internal market  supposes the application in Me mber States of legislation on 
indirect taxation that does not distort comp etition neither free movement of goods and 
services. 
Therefore it is necessary to achieve harmonisati on of legislation in line with the changes in 
our economy by means of proposals for new dire ctives although that achievement is often 
compromised by the rule of unanimity.  
Main existing measures in force  (situation on 31/12/2008) : see Annex I for a complete 
overview 
12.2.1.2.  Report of the work done in 2008  
Management of the acquis through committees and expert groups 
- The VAT Committee, an advisory committee set up by Article 398 of the VAT Directive 
2006/112/EC of 28 November 2006, has competence  to examine questi ons raised by the 
Commission or the representatives of the Memb er States, which concern the application of 
Community provisions on VAT. At least tw ice a year, the VAT Committee examines 
questions raised on the interpretation of the ex isting VAT legislation. When an agreement can 
be reached on a common interpretation of a provision concerning VAT , the Council can adopt 
unanimously, on a proposal from the Commis sion, the necessary implementing measures 
which are required. 
- In the field of administrati ve cooperation in the field of VAT, several expert groups, funded 
through the Fiscalis 2013 budget, discussed speci fic problems that are either related to 
specific fraud problems or targeted at excha nging best practises or enhancing cross border 
administrative cooperation. These groups dealt w ith multilateral controls, e-auditing, second 
hand cars, importation fraud, risk management, etc. 
- In addition, the anti tax fraud strategy (A TFS) expert group, created in 2007, discussed 
possible solutions to fight VAT fraud more efficiently. These di scussions have paved the way 
for legislative initiativ es from the Commission presented in 2008 as well as for those planned 
for 2009. 
Enquiries, problems and complaints management, management of infringements, petitions  
- Within the area of indirect taxation , the criteria of prioritisation were fixed in line with the 
Communication of the Commissi on of 2002 on the improvement of the control of the 
application of the Community le gislation. The Commissi on has increased its efforts to ensure 
alignment of Member States' indirect tax legi slation with the requirements of primary and 
secondary Community law, by intensifying its infringement action following the adoption of 
new Directives and by pursuing a more targeted infringement  approach in support of ongoing 
policy initiatives such as the Commission's in itiative on tax policy coordination. Infringement 
procedures affecting the Comm unity own resources and specifi c infringement procedures 
related to VAT on postal services, travel agents and reduced VAT rates were launched in this context. 
EN 275   EN In the Commission Communication 'A Eur ope of results-Applying Community law'385, the 
Commission decided on the introduction of a arrangement for monthly decision-taking to 
allow for the quicker progress of infringement  cases. The results of this new decisional 
method were particularly significant within this domain where considerable efforts were made 
in order to carry out the object ive laid down by the Commission. 
Another important element of the Commission Communication was the st arting up of a pilot 
project to test and improve  working methods between Co mmission services and Member 
States on information exchange and problem solving. Although the management of cases within this  area might not be as representative and 
relevant for the overall functioning of the EU PILOT, we already noticed that so far some 
Member States seemed to be complying/ res ponding quickly, others needed to be stimulated 
several times before undertaking any action, a lthough it has to be stressed that (factual) 
indirect taxation issues are often very complex and in many factual cases we have to refer the 
applicant to the national Court.  
Factual cross-frontier disputes on the other hand were in most cases successfully referred to 
the SOLVIT system as value added network for problem solving. 
Within the area of indirect taxation, 2008 was another successive year with an increasing 
number of infringement cases, closed after br inging their legislation into conformity with 
Community Law by the Member States during the different steps of the 226-procedure, and a 
considerable input related to  new Court cases. The following cases merit extra attention : 
In the judgments in the cases Commission v. Italy
386, the Court censures as unlawful the 
general and indiscriminate waiver of verificat ion of transactions taxable for VAT purposes 
effected in a series of tax years, by which th e Italian Republic has fail ed its obligations under 
the Sixth VAT Directive and the general principle of cooperation in good faith.  
In the case Commission v. Portugal387, the Court considered that  in the context of 
infringement proceedings against a Member State, that State cannot  validly plead 'res judicata' 
in the light of an earlier judgm ent where the subject-matter of cas e in question and that of the 
earlier case are different. In this particular case it cannot be authorised to reintroduce a 
reduced rate of value added tax appl icable to road tolls for a crossing. 
In the case Isle of Wight Council a.o.388, the Court declared that regarding the harmonisation 
of the laws of the Member St ates relating to turnover taxe s (VAT), the uniform basis of 
assessment is to be interpreted as meaning th at the significant distorsions of competition, to 
which treatment as non-taxable persons of bodies governed by private law acting as public 
authorities would lead, must be  evaluated by reference to the activity in question, as such, 
without such evaluation relating to any local market in particular. 
Finally some cases Koninklijke Ahold NV and Royal Bank of Scotland Group plc 389 regard  the 
rules and methods of rounding amounts of value adde d tax, to be in line with the principles of 
fiscal neutality and proportionality .  
                                                 
385 COM(2007)502 
386 Judgments of 17.07.2008 and 11.12.2008, cases C-132/06 and C-174/07 
387 Judgment of 12.06.2008, case C-462/05 
388 Judgment of 16.09.2008, case C-288/07 
389 Judgments of 10.07.2008 and 18.12.2008, cases C-484/06 and C-488/07 
EN 276   EN - Regarding the petitions treated in the area of indirect taxation,  the most recurrent issues 
concerned various aspects of taxation of cars. 
New legislation in preparation or already proposed and in the course of being adopted, 
impact assessments and implem entation plans being develope d in connection with new 
proposals, etc. 
Value added tax (VAT)  
The Commission adopted in 2008 a proposal for a directive amending Directive 2006/112/EC 
as regards reduced rates of va lue added tax, so as to provi de Member States with the 
flexibility to apply reduced VAT rates for some  specific services on a permanent basis. The 
Commission proposal covers areas where there is sufficient evid ence that reduced rates do not 
create problems for the proper functioning of th e Internal Market. The sectors concerned are 
mainly so called labour-intensive services and locally supplied services , including restaurant 
services. A political agreement was reached in the Council on 10 March 2009 and the final 
text of the directive will soon enter into force.  
A new Council Directive 2008/117/EC amen ding Directive 2006/112/EC on the common 
system of value added tax to combat ta x evasion connected w ith intra-Community 
transactions and Council and a Council Regul ation 37/2009 amending Regulation (EC) No 
1798/2003 on administrative cooperation in the fiel d of value added tax, in order to combat 
tax evasion connected with intra-Community  transactions were adopted on 16 December 
2008. As a consequence both the reporting period for the recapitulative statement and the 
period for the exchange of the information between Member States are shortened from 3 months to 1 month. 
On 1 December 2008 the Commission also a dopted a proposal for a Council Directive 
amending Directive 2006/112/EC on the common system of value added tax as regards tax evasion linked to import and other cross-border transactions, proposing to introduce new rules 
on cross border joint and several liability (COM(2008)805 final).  
Excise duties  
In the area of excise duties, Council Direct ive 2008/118/EC of 16 D ecember 2008 concerning 
the general arrangements for excise duty and repealing Directive 92/ 12/EEC was adopted. Its 
Article 48 provides that Member States shall adopt and publish, not later than 1 January 2010, 
the laws, regulations and administrative provisions  necessary to comply with this Directive 
with effect from 1 April 2010. As a consequen ce, the control of the transposition of the 
Directive into national legislation will have to take place in 2010. 
The Commission has presented on 16 July 2008 a report and a proposal for a new Council's 
Directive amending Council directive 95/59/EC , 92/79/EEC and 92/80/EEC on the structure 
and the rates of excise duty applied to ma nufactured tobacco (COM(2008) 459 final - 
2008/0150 (CNS)). The objectives of the proposal are to improve the functioning of the 
Internal Market, contribute to a high level of health protection and modernise the current 
arrangements.  
Energy taxation 
EN 277   EN In line with its 2008 Legisl ative and Work Programme390 and with the in vitation by the 2008 
Spring European Council391, the Commission has been prep aring a revision of Directive 
2003/96/EC ("the Energy Taxation Directive") to  better combine fiscal and environmental 
goals. The Commission will present the proposal in 2009. In the course of 2008, the negotiations continued on the 2007 proposal revisi ng certain elements of Article 7 of Council 
Directive 2003/96/EC (the so cal led "commercial diesel proposal")
392, both in the Council 
working group393 and in the European Parliament.  
The European Parliament delivered pos itive opinion on the Proposal on 13 March 2008394. 
Tax exemption to permanent introduction of the personal property of individuals 
A proposal for a Council Directive on tax exem ption applicable to permanent introduction 
from a Member State of the personal property of individuals (Codified  version of Directive 
83/183/EEC) has been adopted by the Commissi on (COM(2008) 376), and has been discussed 
in the Council 's Working Part y on codification of legislation. The text  was finalised in 
October 2008 and was sent to all Member Stat e Delegations for final approval. After its 
approval by Member States the text needed to  be finalised by lawyer-linguists and this was 
not possible to be completed by end of 2008. Therefore, the codifi ed version of the Directive 
is to be adopted by COREPER and the Council in the course of 2009. 
Recovery of taxes  
In 2008, the Commission prepared a proposal for a new Directive concerning mutual 
assistance for the recovery of taxes and other duties. (The proposal was not yet adopted in 
2008). 
Preventive measures being taken in relation to recently adopted new legislation – conformity 
assessment of national transposition, transpos ition package meetings, development of 
guidelines, initiation of networking system s to manage the new legislation, etc. 
Value added tax (VAT)  
- Directive 2008/8/EC amending Directive 2006/112/EC as rega rds the place of supply of 
services, adopted on 12 February 2008, has been discussed in the VAT Committee which is 
chaired by the Commission. The Commission also  organised a seminar under the Fiscalis 
Programme to examine together with participants  from all Member States certain aspects of 
the new rules.  
- Council Directive 2008/9/EC of 12 February 2008 laying down de tailed rules for the refund 
of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established 
in the Member State of ref und but established in another Member State has also been 
discussed in the VAT Committee. Furthermor e, a Fiscalis seminar was organised in 
Stockholm to prepare the implementation of the Directive from a legal, organisational and IT 
                                                 
390 COM (2007) 640 of 23 October 2007 
391 European Council 13/14 March 2008, Presidency conclusions (7652/08) 
392 COM (2007) 52 
393 The last meeting of the Council working group was during the French Presidency on 16 June 2008 
394 The rapporteur was Mr. Schmidt (ALDE-SE) 
EN 278   EN point of view. The functional and technical specifications of this, entirely electronic, system 
have been discussed and agreed via the or ganisation of several Fiscalis workshops. 
Traveller allowances  
Council Directive 2007/74/EC of 20 December 2007 on the exemption from value added tax 
and excise duty of goods imported by persons tr avelling from third c ountries entered into 
force on 29 December 2007. Member States brought  into force the laws, regulations and 
administrative provisions necessary to comply w ith Articles 1 to 15 of this Directive with 
effect from 1 December 2008.  
Excise duties  
In the area of excise duties, it is fores een to present the main changes brought about by 
Council Directive 2008/118/EC of  16 December 2008 concerning the general arrangements 
for excise duty and repealing Directive 92/12/EEC  to the Committee on Excise Duties at its 
next meeting in May 2009. Furthermore, Member States will be asked at that meeting to 
inform the Commission of the use they intend to  make of optional prov isions relating to the 
EMCS (Excise Movement and Control System),  for which the Directive provides a legal 
basis. Further discussions in the Committee or in a Working Group on the transposition of the 
Directive can be envisaged, prior to the entry into application of  the Directive, if required by 
the Member States. 
12.2.2.  Evaluation based on the current situation 
It is important to recall that unanimity is and will remain the rule for the adoption (and thus 
the adjustment) of the te xts towards harmonization in the field of taxation . This situation 
undeniable makes harmonization by the legislativ e way more complex and often leads to the 
granting of options to Member St ates that are badly defined. 
In this respect, the proposal for a Directive of 5 July 2005395 which, inter alia, includes the 
abolition of registration taxes and would consequently bring to an end the current obligation, 
for the European citizens, to pay again a registration tax for their vehicle when they change 
residence, could not be adopted. 
Hence, the infringement policy constitutes a major instrument to contribute in a non-
negligible way to uniform application a nd thus towards harmonization simplifying the 
situation for taxpayers. 
The overall situation in the area of indirect taxation  is changing as infringement action and 
references to the Court have steadily increased in recent years – partly due to the enlargement 
of the EU - and this trend is still likely to continue. The key challenges will be to manage this increase in activity with the available res ources and to achieve correct application of 
Community law in this area with in acceptable deadlines. The position needs to be monitored 
continuously.  
A number of measures have already been take n to improve the situa tion and to rationalize 
action. This includes a more strategic approach to infringement action by focusing on specific 
priorities and adopting a more horizontal approach to simila r infringements in different 
Member States. In addition, a lo t of emphasis is put on preventi on by better co-ordinating the 
preparation of national legisl ation translating Community legislation into national law. 
                                                
 
395 COM (2005) 2641 final 
EN 279   EN Finally, it is welcomed that during 2008, 51 infr ingement cases have been closed because the 
Member States concerned decided to bring thei r legislation into conformity with Community 
Law without any referral to the Court of Just ice. These figures reve al clearly that the 
alignment of Member States' legislation with  Community law is being achieved through the 
work done by the Commission and Member States in the context of infringement proceedings 
following the adoption of new directives. As stated in its 2007 Communication, the 
Commission has started to work wi th Member States to try to ensure quicker results without 
recourse to infringement proceedings always being necessary. 
12.2.3.  Evaluation results 
12.2.3.1.  Priorities  
Although the good figures for notification rega rding the transposition of the existing 
secondary Community Law, our existing pro-acti ve infringement policy and prioritisation of 
specific issues should be maintain ed and further developed as a strategy in order to persuade 
Member States to approve ongoing legislative pr oposals and mostly to try to push back the 
increasing number of complaints year after year. 
On the control of the implementation of Direc tives, the implementing na tional provisions have 
been checked routinely by the officials respons ible for the follow-up of national legislation. 
However, the introduction of an obligation for th e Member States to pr ovide systematically, 
for each directive, correlation tables to the Commission services would increase transparency 
and user-friendliness of national legislatio n, would facilitate the dialogue with the 
Commission on transposition of single market dir ectives and could represent a useful tool for 
both administrations and stakeholders.  
A second priority concerns the Community own re sources. Those resources within the area of 
indirect taxation are to include those acr uing from VAT and are obtained through the 
application of a uniform rate of tax to bases of assessment determined in a uniform manner 
and in accordance with Community rules. In fringements with a possible impact on own 
resources are mostly initiated by cases detected  through own investigatio n. Their purpose is to 
take care of the equal treatment  of the Member States vis-a- vis their contribution to the 
Community own resources.  
A third pillar regarding the priori tisation policy within the domain of indirect taxation, is that 
the Commission has increased its efforts to ensu re alignment of Member States' indirect tax 
legislation with the requirements of primary and secondary Community law, by intensifying 
its infringement action following the adoption of new Directives and by pursuing a more targeted infringement approach in support of ongoing policy initiatives. 
Lastly, in the field of car taxation, object of many complaints and petitions, the Commission 
uses article 90 of the EC Treaty as interpreted by the Jurispruden ce of the Court of justice, to 
take care that the Member States do not ta x in a discriminatory way, at the time of 
registration, the second-hand vehicles  bought in the other Member States. 
For indirect taxation  issues, the Commission opened 211 new infringement cases 134 of 
which related to VAT, 35 related to exci se duties and 42 regarding car, energy and 
environmental taxation. 
EN 280   EN During 2008, 51 opened infringement cases were cl osed after Member States modified their 
legislation and therefore complied with Community Law; most of the time we had to refer the case to the Court of Justice before compliance was achieved. 
Both the enlargement and the st rategic objectives adopted by the Commission for the period 
2005-2009, were thus for another successive year re flected both in a considerable number of 
infringement cases and a consid erable input related to new C ourt cases. During the year 2008, 
the Court of justice has delivered 29 judgments related to indirect taxation (26 in the domain 
of VAT and 3 regarding other in direct tax issues), mostly j udgments in consequence of a 
preliminary question in pursuance of whic h the Commission has given its advice. 
The volume of petitions in the different sect ors falling within the competences of the 
Commission services in this area is relatively  moderate and stable (28 new petitions have 
been introduced in 2008). 
12.2.3.2.  Planned action (2009 and beyond)  
One of the specific objectives planned for the mi d-term is to create a simpler and transparent 
tax environment for individuals, SME's and ot her businesses in cross-border transactions 
through the control of the app lication of Community law, m odernisation, better coordination 
and harmonisation of tax systems in the Internal Market. 
Since VAT has been identified as causing a high  level of administrative burden for business, 
the Commission is seeking to book result s in simplifying and rationalising the VAT 
legislation. The 'production' of legislative prop osals are likely to reduce the administrative 
burden. 
In order to ensure Member States' compliance with EU law, and as a result of targeted 
monitoring, the number of infri ngement procedures that could be closed in 2008, should be 
kept as a reference for the year 2009 and be yond. If the number of infringements remains 
stable, an increase in the number of closed cases is envisaged. 
12.3. Situation in the sector of DIRECT TAXATION 
12.3.1.  Current position  
12.3.1.1.  Existing measures in force 
 See Annex I 
12.3.1.2.  Report of work done in 2008 
Volume of enquiries, complaints, infringeme nts work and petitions, and prioritization among 
them 
In the area of direct taxation , the objectives adopted by the Commission for the period 2005 - 
2009, were yet again reflected in an increasing number of infringement cases (almost 35% 
more than in 2007) and increased input into new Court cases. As in previous years, the main 
focus in 2008 was on breaches of Community  law, in particular  those concerning the 
application of the Treaty freedoms in respect of  differential treatment of domestic and cross-
border situations. In addition, infringement action was targeted at those areas where the 
Commission sees scope for co-ordin ation of Member States' direct  tax systems, as highlighted 
in the 2006 Communication on Co-ordinating Me mber States' direct tax systems in the 
EN 281   EN Internal Market. In this respect, priority was in particular given to infringement cases in 
respect of exit tax rules on individuals and companies (7 new cases opened in 2008) and discriminatory tax treatment of fore ign charities (12 new cases in 2008). 
In 2008 the Court of Justice deliv ered 25 judgments related to direct taxation. Most of the 
Court's judgments in this area (21) concer ned references for preliminary rulings. The 
following cases were of particular relevance: 
In Lidl Belgium GmbH &Co KG
396, the Court held that the non-deductibility of losses 
incurred by a permanent establishment in anothe r Member State constitutes a restriction on 
the freedom of establishment, but that such a restriction may be justified by the need to 
prevent a double deduction of losses. With reference to its judgment in Marks & Spencer (C-
446/03), the Court stressed that a measure whic h restricts the freedom of establishment goes 
beyond what is necessary to attain the objectives  pursued where a non-resident subsidiary has 
exhausted all possibilities to offset, carry fo rward or carry back th e losses incurred in the 
Member State where it is situated. 
In Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt397 the Court ruled that a Member 
State which grants relief for losses incurred by a permanent establishment in another Member 
State may provide for a rule to recapture such  relief when that permanent establishment 
generates profits in subsequent years. The C ourt held that the German rule in issue was 
justified by the need to ensure the coherence of the German tax system, since there was a 
direct and personal link between the deduction of the losses and the recapture in subsequent 
tax years.  
In Eckelkamp398 and Arens-Sikken399 the Court held that inherita nce tax rules which provided 
for a less favourable treatment of  cross-border inheritances, as a result of the non-deductibility 
of related debts for the purpose of determini ng the assessment base for taxation, constituted a 
restriction on the free movement of capital.  
In Société Papillon400 the Court held that the French ru les, under which a resident company 
could not consolidate with its French lower- tier subsidiaries held through a non-resident 
intermediary company, resulted in a different treatment of cross-border and purely domestic 
situations. The Court held that this constitute d a restriction on the freedom of establishment 
which could not justified by the need to ensure a b alanced allocation of taxing powers, as the 
case concerned the taking into acco unt of losses within a single Member State, or by the need 
to safeguard the coherence of the French tax system  . 
Regarding the petitions in the direct tax area, most petitio ns relate to possible infringements 
of Treaty freedoms and instances of double taxa tion due to the simultaneous application of 
different Member State tax laws.  
As regards direct taxation , 143 new infringement cases have been opened in 2008, a marked 
increase from 2007 (almost 35%). 
                                                 
396 Judgment of 15.05.2008, case C-414/06 
397 Judgment of 23.10.2008, case C-157/07 
398 Judgment of 11.09.2008, case C-11/07 
399 Judgment of 11.09.2008, case C-43/07 
400 Judgment of 27.11.2008, case C-418/07 
EN 282   EN During 2008, 34  opened infringement cases were closed  after the Member States concerned 
modified their legislation to comply with Community Law. 
• In view of the lack of seconda ry Community legisla tion in the direct ta x area, the majority 
of enquiries and complaints in this area (a total volume of 303 in 2008) relate to the 
application of the fundamental Treaty freedom s in respect of differential treatment of 
domestic and cross-border situations. They th erefore fall mainly into  the second priority 
category of the Communication COM(2007) 502 concerning 'breaches of Community 
law, raising issues of principle or having particularly far-reaching negative impact for 
citizens, such as those concerning the a pplication of Treaty pr inciples (..)'.  
• Judging from the ever increasing number of enquiries, complaints and references for 
preliminary rulings in the direct tax area, the external interest in this area is substantial and 
growing. Given the lack of progress toward positive integration, which is at least partly 
due to the unanimity requirement in tax matters, this trend is likely to continue and intensify over the coming years. 
• Priority is given to those cases which re veal clear and serious infringements of 
Community law that prevent EU citizens and enterprises from maki ng use of their rights 
to establish themselves or invest in other Member States. Moreover, particular attention is paid to those areas where the Commission sees  scope for co-ordination of MS' direct tax 
systems, as highlighted in the 2006 Comm unication on Co-ordinating Member States' 
direct tax systems in the Internal Market (COM(2006)823 of 19.12.2006) and the subsequent specific communica tions on cross-border losses, exit taxes and anti-abuse 
rules. In addition, work on the current prior ity areas (including taxa tion of cross-border 
dividend payments and cross-border pensions) will continue.  
The volume of petitions in the direct tax area is re latively moderate and stable (19 petitions in 
2008).  
Recently adopted measures requiring additional work 
There are no recently adopted measures in the direct tax area which require additional work. 
New measures requiring transposition work 
Regarding direct taxation, no ne w measures are envisaged for 2009. 
12.3.2.  Evaluation based on current situation 
The situation in the direct tax area is changing  as the infringement ac tion and the number of 
references to the Court has increased in recent y ears and this trend is likely to continue. The 
key challenges are to manage this increase in activity and to achieve correct application of 
Community law in this largely unharmonised area.  
A number of measures have already been taken to try and improve the situation. This includes 
a more strategic approach to in fringement action in this area by focusing on specific priorities 
and adopting a more horizontal approach to simi lar infringements in different Member States.  
Moreover, the Commission is encouraging Member States to take a more  pro-active approach 
to removing existing tax obstacles by examining the scope for co-ordination of MS' direct tax 
systems. As outlined in the 2006 Communication on Co-ordinating Member States' direct tax 
systems in the Internal Market  (COM(2006)823 of 19.12.2006), the aim of this initiative is to 
ensure that national tax systems comply with Community law and interact coherently with 
each other. The initiative seek s to remove discrimination and double taxation for the benefit 
EN 283   EN of individuals and business while preventing  tax abuse and erosion of the tax base. 
Coordinated solutions could help to remove  discrimination and eliminate remaining tax 
obstacles to cross-border activity and thus help  to reverse the trend of increased litigation by 
taxpayers in national courts and the ECJ.  
12.3.3.  Evaluation results 
12.3.3.1.  Priorities 
As far as direct taxation is concerned, the priorities set for 2008 remain unchanged for 2009. 
12.3.3.2.  Planned action (2009 and beyond) 
Given the evaluation of the current situation, co ntinued and intensified infringement action is 
envisaged in the direct tax area. 
Common Consolidated Cor porate Tax Base (CCCTB) 
In the medium term, adoption by the Council of the planned legislative proposal for a 
Common Consolidated Corporate Tax Base  (CCCTB) would require substantial 
implementation/ transposition by Member States and conformity assessment by the 
Commission possibly combined with expert group/ committee meetings to manage the 
application of the measure. Once adopted and implemented, CCCTB would reduce the scope 
for cross-border restrictions and thus result in a decrease in infringements in the corporate tax 
area.  
Amendment Savings Directive401 
The European Commission on 13 November 2008 adopted an amending proposal to the 
Savings Taxation Directive, with a view to closing existing loopholes and better preventing 
tax evasion. The Commission proposal seeks to improve the Directive, so as to better ensure the taxation of interest payments which are channelled through intermediate tax-exempted 
structures. It is also proposed to extend the sc ope of the Directive to income equivalent to 
interest obtained through invest ments in some innovative financ ial products as well as in 
certain life insurance products. Adoption by the Council would require substantial 
implementation by Member States and confor mity assessment by the Commission possibly 
combined with committee meetings to manage the application of the measure.  
13. EDUCATION
 AND  CULTURE 
13.1. Current position 
13.1.1.  General introduction 
13.1.1.1.  Education and vocational training 
The main legal provision applicable is article 12 of the Treaty, establishing the principle of 
prohibition of any discrimination on grounds of nationality within the scope of application of 
                                                 
401 Directive 2003/48/EC on taxation of income from savings (OJ L 157 p 38 of 26.06.2003) 
EN 284   EN the Treaty402. Taken together, the Court’s case law, based on Articles 12, 17, 18, 149 and 150 
EC can be considered to underpin the free move ment of students as a self-standing area of 
Community law. On that basis,  a student who moves from his Member State of origin to 
another to carry out all or part of his/her st udies, is protected not only against discrimination 
on grounds of nationality in the second Member Stat e, but also against pr ejudicial treatment in 
his/her Member State of origin on grounds (directly or indirectly) related to  the fact that s/he 
has studied abroad. This new standard finds its  application, e.g., when a student asks his/her 
own Member State for the portabili ty of a grant or scholarship in  order to continue studying in 
another Member State403. 
In secondary legislation, there are no specif ic binding Community acts in the field of 
education, in the light of Article  149, paragraph 4, of the Treaty: 
«In order to contribute to the achievement of the objectives referred to in this Article, the 
Council, acting in accordance with the procedure referred to in Article 251, after consulting 
the Economic and Social Committee and the Co mmittee of the Regions, shall adopt incentive 
measures, excluding any harmonisation of the la ws and regulations of the Member States.» 
Article 150, paragraph 4, of the Treaty, related to vocational training contains a similar 
provision. 
Nevertheless, secondary legisla tion adopted on the basis of ot her articles of the Treaty 
includes provisions concerning students. An important exampl e is Directive 2004/38/EC of 
the European Parliament and of the Council on the right of citizens of the Union and their 
family members to move and reside freely within  the territory of the Member States. Students 
are an important category of citizens movi ng between Member States and the Directive 
contains key provisions related to students on, for example, rights of residence for students 
legally enrolled for education or  vocational training, and on equa l treatment of EU citizens 
with specific rules on social assistance and ma intenance grants. Directive 2005/36/EC of the 
European Parliament and of the Council on the recognition of professi onal qualifications is 
also important for the recognition of aca demic qualifications, given that academic 
qualifications are very often used directly for professional purposes. 
13.1.1.2.  Sport 
In the area of amateur sport, the Commission c onsiders amateur sport to be a social advantage 
in the context of the free movement of worker s. According to Article  7(2) of Regulation 
(EEC) 1612/68404, migrant workers have to be treate d equally with nationals of the host 
country concerning access to employment, as well as working conditions and social advantages. The Court has held that these cove r non financial advantages , in particular those 
which would facilitate their integr ation into the host Member State. 
                                                
 
402 The Court of Justice has held that the field of education is among those included in the scope of the 
Treaty under Article 12. Inter alia, see the judgment of 11 July 2002 in the case C-224/98, D'Hoop , 
grounds 29 to 32; judgment of 15 March 2005 in the case C-209/03, Bidar , operative part. Article 12 
must be read in conjunction with the provisions of th e Treaty on citizenship of the Union, i.e. articles 17 
and 18. 
403 Judgment of the Court of 23 October 2007 in the joint cases C-11/06 and C-12/06, Morgan  and Bucher.  
404 Regulation (EEC) 1612/68 of the Council of 15 October 1968 on freedom of movement for workers 
within the Community. 
EN 285   EN Additionally, the Commission takes into account the recent ECJ case law405 which considers 
that Union citizenship is destined to be the fundamental status of nationals of the Member 
States. In that regard, the Commission considers that the exercise of the right to move and 
reside freely in another Member State is enha nced if the citizens of the Union are able to 
practice sport as amateurs in principle on the sa me footing as its natio nals. Consequently, in 
exercising that right in another Member State, persons are in principle entitled, pursuant to 
Article 12 of the Treaty, to treatment no less favourable than that accorded to nationals of the host State. 
The exceptions to this principl e of equal treatment may only be accepted in duly justified 
cases, in particular where they result from the sp ecific characteristics of sport, as explained in 
the White Paper on sport
406. 
13.2. Report of work done in 2008 
The Commission based its work for the applic ation of Community law in 2008 on the above 
legal provisions and case law. 
In the area of education and trai ning, activities can be divided in to four specific categories:  
Access to educational institutions in a Member State for students from other Member States. 
The principle of non discrimination (12 CE) is  the main rule there. Among seven cases 
handled by Commission services in this sector  in 2008, the cases against Austria and Belgium 
concerning access to their universities, prin cipally for medical and related studies, by 
candidates from Germany and France respective ly, remain suspended for five years. The 
Commission is closely monitoring the impact of the conditions imposed by those Member 
States, requiring them to submit to the Commission statistical data407 which will enable a 
judgment to be drawn on whether the measures  are necessary and proportionate. Moreover, 
the preliminary case C-73/08, Bressol, submitted to the Court of Justice in 2008, deals with 
the same issues and may impact on the handling of these cases.  
The conditions for awarding grants, either to c over tuition and registration fees, or to cover 
living expenses. This issue is examined both in  connection with the hos t country, concerning 
students from other Member States, and in rela tion to the country of departure, which, under 
certain conditions (Case C-11-06, Mo rgan), is obliged to award gr ants to students who decide 
to go to another country for all or part of their studies.  
Other rights of students in  the host country during their studie s, in order to ensure an equal 
treatment with domestic students. To this category belongs the issue of reductions on 
transport tariffs, for all regular students in a Member State, to the same extent as for the national students. This issue,  with four cases in 2008, has been taken up with the three 
Member States concerned.  
The academic recognition of diplomas. The Co mmission receives a lot of correspondence on 
this issue, relating particularly to excessive delays in recognising diplomas or periods of 
study, exceeding a reasonable cost for such recognition, not permitting appeals against 
negative decisions or not presenting ju stifications for such decisions.  
                                                
 
405 See Cases C-184/99 Grzelczyk , paragraphs 31 to 33; C-85/96, Martinez Sala , paragraph 63; C-158/07 
Förster , paragraphs 37 to 43. 
406 White paper on sport, 11 July 2007, COM (2007) 391 final. 
407 The first set of statistics was provided by Austria on December 2008. Belgium is  expected to provide its 
first statistics by spring 2009. 
EN 286   EN In dealing with this issue, the role of "sof t law", consisting princi pally of Recommendations 
of the European Parliament and of the Counc il, is particularly im portant in providing a 
framework in which the difficulties encountered by citizens can be resolved408. In this context, 
the European Qualifications Framework will have a significant impact. Valuable services are also offered in this area by the NARIC networ k (National Academic Recognition Information 
Centre)
409. The Commission has contributed to the establishment of this network and our 
services often advice the inte rested persons to address their demands to NARIC.  
As regards the tools for the application of Co mmunity law, the Commission has also started 
using the EUPilot scheme with those Member Stat es that participate and has the intention to 
use it more systematically. 
As for Member States which have not joined  the EUPilot system, the Commission uses the 
traditional means of correspondence with na tional authorities th rough the Permanent 
Representation. The results of such communicati ons are satisfactory. To cite one example, 
after contacts with the French au thorities in a matter of conditi ons of access to further medical 
studies for French nationals w ho had completed their initial st udies abroad, the authorities 
have indicated their intention to amend their legislation accordingly. 
In the area of sport, the Commission received  in 2008 an increasing number of complaints 
concerning cases of discrimina tion on grounds of nationality. Th ese cases mainly concerned 
access to both individual and collective competit ions in various sports such as football, 
baseball, volleyball, squash and shooting. At the same time, the Commission continued to 
monitor infringement procedure n° 2007/41 26 related to access to individual judo 
competitions for non nationals in Belgium. The Commission also continued its dialogue with sport associations as foreseen in the White Paper on sport. In this framework, the Commission 
analysed the UEFA "Home-grown players" rule  and its compliance with Community law and 
disapproved the FIFA "6+5" rule which const itutes direct discrimination on grounds of 
nationality forbidden by ar ticle 39 of the Treaty. 
13.3. Evaluation results 
13.3.1.  Priorities 
An area requiring attention is th e mobility of students within th e European Union. We wish to 
strengthen the confiden ce of students in the European Un ion, with faster and more dynamic 
handling of cases involving their m obility, in order to ensure that the posi tive results obtained 
by mobility will not be contradicted by negative treatment either by the host Member State or 
Member State of origin. 
                                                
 
408 We mention some recent and important reco mmendations: Recommendation of the European 
Parliament and of the Council of 10 July 2001 on  mobility within the Community for students, persons 
undergoing training, volunteers, teachers and trainers (Official Journal L 215 , 09/08/2001 P. 0030 – 
0037); Recommendation of the European Parliament and of the Council on the establishment of the 
European Qualifications Framework (EQF) for lifelong learning; Recommendation on the 
establishment of the European Credit system for Vocational Education and Training (ECVET); European Quality Assurance Register (EQAR); Eu ropean Quality Assuran ce Reference Framework 
(EQARF). The list is not exhaustive. 
409 Website http://www.enic-naric.net/  
EN 287   EN 13.3.2.  Planned action 
Noting that the area of educati on is a separate chap ter of the acquis communautaire, it is 
intended to support its implementation by:  
• Opening formal proceedings in cases which, in the Commission’s view, represent 
clear infringements of Community law part icularly where other potentially more 
efficient methods of resolving th e issues do not seem feasible; 
• Participation in significant preliminary references to the Court, when matters 
relating to education and sport are involved. 
• Increasing use of the EUPilot tool in  cases which appear  to involve one-off 
misapplications of principles which ar e otherwise accepted by the Member State 
concerned;  
• The provision of guidance, in a form to be determined, to support Member State 
administrations, students and other stakeh olders, with a clear description of the 
implications of the state of the law, ju risprudence and practice in the field of 
education and amateur sport. 
14. HEALTH  AND  CONSUMERS 
14.1. Introduction 
The activity of the Commission in this area con cern three main sector - consumer affairs, 
public health, and food and feed safety includi ng veterinary and phytosanitory matters. This 
sector has one of the largest volumes of legi slation. That requires c onsiderable effort to 
monitor, manage and up-date given its inherent  technical complexity (see Annex I paragraph 
VI for a comprehensive listing of the legislat ive acquis for each policy area). The Commission 
services pay considerable attention to enforci ng the application of Community acquis in this 
area. The policies and laws for which the Commissi on is responsible in this sector affect the 
daily lives of most European citizens. This acqui s must be applied and enforced in a way that 
benefits citizens, empowers consumers and rende rs the advantages of the internal market a 
reality.  
This part describes how the Commission has ev aluated its acquis in this area to ensure 
coherence and stability in achieving the polic y goals. While much work has been done to 
ensure that citizens fully benefit from the safe ty requirements of our le gislation, we continue 
to explore how to strengthen remedies and enforcement measures to achieve effective 
implementation. We address late transpos ition of Directives by swiftly launching 
infringement proceedings against Member States that have failed to transpose.We do so at a 
more rapid speed (12 months) than the average processing speed in other departments of the 
Commission (14 months). In ci rcumstances of inadequate application of legislation, the 
Commission exploits a combinati on of methods through its "tool- box" to achieve compliance.  
We know that despite efforts to accelerate pr ocessing, infringements continue to achieve 
results in a gradual way. Prevention of infr ingements through strong partnerships with 
Member States may often resolve an enforcement issue more effectively. Often Member States are not fully aware of the scope and nature of their legal obligations. Guidance 
documents on complex pieces of legislation have  been particularly conducive to enhancing 
EN 288   EN better application of the acquis on the ground. Other times, Member States fail to put in place 
adequate human and instituti onal capacity (e.g. Greece's vete rinary control system) to 
properly apply legislation in  key food safety sectors. 
As regards in particular the f ood safety acquis (including animal health and plant health), in 
addition to the efforts made on the legisla tive front, 2008 was also  characterised by an 
increased attention to improving the efficien cy of the Commission services' enforcement 
action in relation to the existing acquis. The Co mmission services have re-focused their work 
to ensure sustained and coordina ted attention to all issues related to the implementation of the 
Community acquis in those areas. There is a par ticular focus on ensuring that the legislative 
framework established by Regulation (EC) No 882/2004 of the European Parliament and of 
the Council on official controls performed to en sure the verification of  compliance with feed 
and food law, animal health and animal welfare rules is correctly enforce d. Official controls 
(e.g. inspection activities, audits, sampling and analysis) are a key tool to ensure correct 
enforcement of Community legislation in the areas in question. 
14.1.1.  Prevention 
Laws cannot be properly applie d unless they are fully underst ood by those that enforce them 
or apply them to specific circumstancesit in order to comply with its provisions. 
The Commission has issued implementation guidelin es on the correct application of their food 
safety legislation. In this c ontext, a guidance document on the implementation of specific 
provisions of the General Food Law under Re gulation (EC) No 178/2002 was published. In 
addition, in the interest of transparency, the Commission has encouraged  all parties concerned 
to openly discuss the implementation and app lication of the Regulation in forums where 
Member States can be consulted and where different socio-economic interests can be 
adequately expressed. 
Another example of proactive prevention by the Commission is the publication of a guidance 
document in relation to Regulation (EC) No  882/2004 concerning microbiological sampling 
and testing of foodstuffs. This document, which is directed at compet ent authori ties carrying 
out official controls, aims to a dvise on how to engage in official sampling, the requirements of 
official laboratories, analysis methods to be  used for official samples and microbiological 
criteria applied to official samples. 
Moreover, since the adoption of the new rules on  the hygiene of foodstuffs (Regulations (EC) 
Nos 852/2004, 853/2004 and 854/2004) and of the rule s on officials controls (Regulation 
(EC) No 882/2004), the Co mmission held a series of meetings  with experts from the Member 
States in order to examine and reach a consensus on a number of implementation issues concerning the new Regulations. As  a result a guidance documen t was issued for the benefit 
of competent authorities and food businesses in the Member States and in third countries on 
certain key questions with regard to the implementation of the new food hygiene import requirements and on related subjects. 
Also for the implementation and consistent ap plication of Directiv e 91/414/EEC concerning 
the placing of plant protect ion products on the market, the Commission has adopted 38 
guidelines. Three additional guidelines were adopted in 2007 and one existing guideline was 
revised. 
The Commission launched in 2006 a training programme "Better Training for Safer Food" 
aimed at organising a Community training strategy in the areas of food law, feed law, animal 
EN 289   EN health and animal welfare rules, as well as plan t health rules. Training is designed for all staff 
of competent authorities of Member  States involved in official c ontrol activities so  as to keep 
them up-to-date with all aspects of Community law in the areas specified above and to ensure 
that controls are carried out in a more uniform , objective and adequate manner in all Member 
States. 
The initiative comprises training progr ammes on subjects where needs for improved 
application of Community law have been id entified. The number of  programmes and the 
number of people trained have increased each year since the initiative's launch. Programmes 
in areas such as food hygiene and controls, plant health and prevention of TSE ran for the first 
time in 2008 and programmes covering subjects including feed law are to begin in 2009. 
Around 4,000 people have been trained in the programmes starting in 2008. The number of 
participants should in time reach an annual av erage of 6,000. This should further contribute to 
increased awareness and appli cation of Community norms and standards on the part of 
national authorities. 
To prevent non-compliance to EU standards of products originating from Africa, the Better 
Training for Safer Food in Africa programme  is planned to begin during 2009-2010. This 
activity is aimed at better enabli ng African countries to ensure that their food and agricultural 
products comply with EU and international SPS standards. 
Another type of prevention is provided for in Directive 98/34/EC laying down a procedure for 
the provision of information in the field of technical standards and regulations. This Directive 
obliges Member States to notify to the Co mmission, before they are adopted, draft acts 
containing technical standards and regulat ions. During 2008 the Commission services 
responsible for health and consumers examined 1 80 notifications of draft legislations in order 
to avoid that Member States adopt legislati on which would be incompatible with Community 
law. 
Furthermore, the rapid alert system for food and feed (RASFF) is an effective tool to 
exchange information about national measures ta ken responding to serious  risks detected in 
relation to food or feed410. This is a concrete and visibl e result of a succe ssful European 
integrated approach to ensure f ood safety. It helps Member States  to act more rapidly and in a 
coordinated manner in response to a health thre at caused by food or fee d. Its effectiveness is 
ensured by keeping its structure simple: it consis ts essentially of clearly identified contact 
points in the Commission and at national leve l in member countries, exchanging information 
in a clear and structured way by means of templates. 
The Commission together with Member States con tinues to work hard in further shaping this 
essential tool that is contri buting to high food safety st andards in the EU, preventing 
dangerous food or feed from reaching the consum er and allowing swift action to be taken to 
remove such products from the market. In 200 8, a total of 3099 original  notifications were 
transmitted through the RASFF; 1710 market no tifications and 1389 border rejections. 549 
market notifications were classified as alerts, and 1161 as info rmation notifications. 
                                                 
410 The legal basis of RASFF is Article 50 of Regula tion (EC) No 178/2002 of the European Parliament 
and of the Council laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety, OJ L 31, 
1.2.2002, p. 1. Regulation as last amended by Commission Regulation (EC) No 202/2008, OJ L 60, 
5.3.2008, p. 17. 
EN 290   EN Discussions with Member States either bi-later ally or multilaterally often identify areas of 
difficulty in fully appreciating the nature of sp ecific legislative instruments. The Commission 
services often provide detailed interpretations of specific provis ions in order to achieve broad 
but uniform understanding of specific provisions. 
14.1.2.  Audits and Inspections 
Another aspect of prevention is the ability of the Commission services to see for themselves 
the realities of enforcement on the ground. Enfor cement of the food safety legislation would 
be weak if the FVO was not ab le to examine whether Member States properly apply food and 
feed safety controls. 
Each year the FVO develops an audit and insp ection programme identifying priority areas and 
countries. It carries out around 250 audits and inspections, incl uding both general and specific 
audits, annually. Following each, a report is issued which sets the actions needed to improve 
compliance. The large majority of weaknesses in control systems identified by the FVO are 
normally addressed through specific action plans drawn up by national authorities in response 
to its recommendations. 
In recent years, the FVO has developed overall country profiles for each Member State and 
for the EU's main trading partners. These profil es bring together and summarise the results of 
general and specific audits and inspections over ti me and across all relevant sectors. They can 
thus help to identify systemic weaknesses in the overall design and application of national 
control systems. As these results are progressi vely refined and validat ed, remedial action can 
be proposed that addresses the underlying cause of  weaknesses that are common to a number 
of specific sectors, for example, the absence of a system of documentary records of controls or the absence of an effective syst em of sanctions for non-compliance. 
14.1.3.  Prioritisation of Infringements 
In the field of Health and Consumer the Commission launched 298 ne w cases (including the 
243 cases for non communication; 50 new complaints, 5 cases on our own initiative). 350 
letters of formal notice were sent (333 for non communication, 17 for substantive cases). In 
total the Commission closed 377 cases (311 for non communication, 66 for substantive cases). 
2008 saw the development of a deci sion tree for purposes of usi ng infringement resources to 
resolve a problem. This decision tree now help s staff members increase efficiency and 
accelerate the rate of processing of infringeme nts. The Commission services in the field of 
Health and Consumer continue s to deliver one of the highe st numbers of proposals for 
Commission decisions on infringements. 
This can mainly be attributed to the fact that the Commission services in  this field have been 
taking internal measures to improve its pro cessing speed, without recourse to additional 
resources, through prevention, pr oblem-solving (e.g. EU Pilot proj ect) and priori tisation (e.g. 
strategy paper and implementation planning). 
Although SANCO infringement cases are invari ably technical and complex in nature 
requiring considerable efforts in  satisfying the burden of pr oof on non-compliance, we have 
referred Member States to the C ourt of Justice on 13 occasions. 
The processing speed for infringements in this domain will always be challenging given that  
the Commission bears the burden of proof to s how systematic and pers istent non-compliance 
EN 291   EN to our acquis by Member States. Delays caused by the necessity to gather the necessary body 
of evidence to achieve successful results befo re the Court of Justice have been steadily 
addressed so that by the end of 2008 the numbe r of cases in SANCO's portfolio has been 
reduced significantly. 
The Commission services co ntinue to treat non-communi cation of national measures 
transposing Directives or other notification requirements as a top priority. Late notifications in 
the field of food and feed safety, especially by Portugal and Italy, account for the bulk of the 
shortfall. 
Compliance of transpositions by Me mber States is facilitated by insisting on the obligation to 
have a concordance tables to facilitate such  verification. The programme of positive action to 
facilitate the exchange of experience between Member States between the adoption of the new 
legislation and its transposition will be extended beyond consumer and health policies, to the 
food safety sector. 
Special attention will be given to verifying the transposition of provision s which are crucial to 
the effectiveness of food safety, animal health and animal welfare, which are in the remit of 
Member States. Infringements will be launched where appropriate and according to prioritisation. 
Finally, for low priority cases, attempts will be made in the first instance to find solutions 
with the Member State concerne d through partnership channels (e.g. increased use of the EU 
Pilot project). 
14.1.4.  Future Challenges 
The Commission is at the forefront of evolving cha llenges inherent in this  sector that is prone 
to changes in technology and innovation in pr oduction methods. One challenge is to use the 
array of our tool-box for better a pplication of EC law in a more results-orientated way so that 
EU citizens see the real benefits in our efforts to better apply our acquis. 
Another challenge is to simultaneously re duce the body of Direc tives through using 
Regulations and carefully plan to escort Memb er States through the tr ansposition process of 
any new Directives. 
As indicated above, one of the di fficult challenges for the applica tion of EU law is to keep up 
with developments in innovati on and new technology. Current dossi ers in the fields of the 
genetic modification, cloning, na notechnologies, novel foods and emerging issues of the 
consumer's right to privacy in a digital market  place considerable pressure on us as regulators 
to strike the balance between evidence and science and public con cerns and perceptions. 
14.2. Public Health 
14.2.1.  General Introduction 
Health is an important priority for Europeans who expect to be protected against illness and 
disease. Most competence for action in the field of health is held by Member States, but the 
EU has the responsibility, se t out in the Treaty, to undert ake certain actions which 
complement the work done by Member States (f or example in relation to cross border health 
threats, patient mobility, the reduction of heal th inequalities) and to develop harmonised 
legislation in the areas of blood, tissues and cells, and organs. 
EN 292   EN Article 152(4) constitutes the legal basis for th e adoption of legislation in the area of public 
health. However, some health-related legislation has also been adopted using other legal bases 
such as Article 95. 
The main pieces of legislation in the area of public health concern tobacco control (Directive 
2001/37/EC concerning the manufacture, presen tation and sale of tobacco products and 
Directive 2003/33/EC relating to the advertising and sponsorship  of tobacco products), blood 
(Directive 2002/98/EC setting st andards of quality and safety  for the collection, testing, 
processing, storage and distribut ion of human blood and blood co mponents), tissues and cells 
(Directive 2004/23/EC on setting standards of quality and safety for the donation, 
procurement, testing, processing, preservation, st orage and distribution of human tissues and 
cells), the communicable diseases (Decisi on 2119/98/EC setting up a network for the 
epidemiological surveillance and control of communicable diseases in the Community, and 
Regulation (EC) No 851/2004 es tablishing a European Centre for Disease Prevention and 
Control). 
With regards to tissues and cells, two implem enting Directives complete the legislative 
framework: Directive 2006/17/EC as regard s technical requirements for the donation, 
procurement and testing of human tissues a nd cells, and Directive 2006/86/EC as regards 
traceability requirements for th e coding, processing, preservation, storage and distribution of 
human tissues and cells. 
14.2.2.  Report of Work Done in 2008 
2008 saw significant developments in relation to the transposition of the EU health acquis. 
The transposition of the Community legal fram ework for blood safety was completed by all 
Member States and thus all cases for non-comm unication of transpositio n measures in this 
sector could be closed. Follo wing contacts between the Co mmission and Member States 
Health Attachés, the rate of transposition of the Directives in the tissues and cells sector was 
significantly advanced. However, by the end of 2008, a few Member States were still lacking 
transposition measures for Directiv es 2004/23/EC, 2006/17/EC and 2006/86/EC. 
Consequently, towards the end of 2008, the Co mmission decided to take to the European 
Court of Justice Belgium for failure to transpose Directive 2004/23/EC; Belgium, Italy, and 
Portugal for failure to transpose Directive 2006 /17/EC; as well as Belgium; Italy, Portugal 
and Sweden for failure to transpose Direct ive 2006/86/EC. In December 2008, Sweden took 
the necessary measures to comply with its  obligation to transp ose Directive 2006/86/EC. 
Regarding the implementation in the blood, tissu es and cells sectors (Directives 2002/98/EC 
and 2004/23/EC), the Commission regularly coll ects information through questionnaires and 
follow-up meetings with competent authorities of Member States. The main implementation challenges are linked to the vigilance, trace ability and inspections systems. A common 
approach concerning inspections and on traceability  systems for tissues and cells is currently 
being developed. Moreover, in bo th sectors inconsistencies have  been detected concerning 
how Member States apply the principle of voluntary unpaid donation. These issues will be further addressed in the upcoming reports on the implementation of the two Directives. 
Finally, following the completion of transposi tion, a concordance table addressing the most 
important aspects of the four Directives was sent to the Member States for completion. The 
returned tables will allow the Commission to adequately monitor the transposition process. 
EN 293   EN In the tobacco sector the two existing Dir ectives (Directives 2001/ 37/EC and 2003/33/EC) are 
well implemented in Member States. The re port on the implementation of the Tobacco 
Advertising Directive 2003/33/EC, adopted  on 28 May 2008 COM (2008) 330 final, 
concludes that the laws to transpose the Di rective are in place and are well implemented. 
Following the judgment of the European Cour t of Justice in case C-343/05, condemning 
Finland for allowing the Åland Islands not to transpose the obligation to prohibit the placing 
on the market of oral tobacco as provided fo r in Article 8 of Directive 2001/37/EC, Finland 
took the necessary measures to comply with the judgment and the case was subsequently 
closed by the Commission in 2008. 
Following the introduction of the EU-wide ban, traditional tobacco brand advertising and 
direct sponsorship of a cross-border nature has ceased within the European Union. Virtual 
environment, corporate promotion and the lack  of cross-border enforcement co-operation are 
the biggest challenges. In the above-mentioned report, the Commission invited Member States 
to designate liaison offices, exchange information,  take all necessary enforcement measures to 
bring about the cessation of any infringement  and respond without delay to enforcement 
requests of other Member States. 
Regarding the communicable diseases area, the implementing measures lay down the list of 
diseases and special health issues together w ith the criteria for thei r selection (Commission 
Decision 2000/96/EC), case defi nitions (Commission Decision 2002/ 253/EC), events to be 
reported within the early warning and response system (EWRS), as well as procedures for 
information, consultation and cooperation under this system (Commission Decision 
2000/57/EC). Substantial revisions which o ccurred recently (Commission Decisions 
2007/875/EC, 2008/351/EC and 2008/426/EC) aimed to up-date the existing EU legislation to 
scientific developments (in clinical, laborat ory and epidemiological investigations), new 
international commitments (entry into force of the International Health Regulations), and the 
current epidemiological situation (SARS, Av ian Influenza in humans, West Nile virus 
infection). New categories of communicable diseas es have been also a dded to the basic act 
(Decision 2119/98/EC), namely vector born di seases, zoonotic diseases, other communicable 
diseases of public health importance, includin g diseases caused by deliberate release and 
communicable diseases which may lead to pot ential emergencies of international concern. 
14.2.3.  Evaluation, Priorities & Perspectives 
The framework of public health legislation put in place in this decade has shown that 
meticulous planning and proactiv e prevention initiatives are nece ssary to avoid significantly 
late transposition of the adopted  Directives. This part of the acquis can achieve enforcement 
through infringement proceedings, if used strate gically, to obtain Member State compliance to 
key public health sectors. 
The Commission will continue its priority e fforts to avoid implementation problems through 
collaborative partnerships with Member States in order to ensure that policy objectives are 
fully achieved. The volume of issues brough t to the attention of the Commission for 
inadequate application of the public health  legislation is, however, very small. The 
Commission's work in partnership with Member  States will seek to provide a clear and 
efficient basis for application of  the public health legislation. 
EN 294   EN 14.2.4.  Summary of Sector 
The challenge in this sector in the near future  is to achieve effective transposition of public 
health legislation through clos er partnerships with Member States and to guarantee that 
harmonised rules are uniformly enforced by competent national authorities. 
14.3. Consumer Affairs 
14.3.1.  General Introduction 
There are now more than 490 million consumers in  Europe and their expenditure represents 
over half of the EU’s gross domestic product (GDP). Consumers are essential to economic 
growth and job creation in a large market of products and services. 
The Commission's Consumer Policy supports the aims laid out in Articles 153 and 95 of the 
Treaty establishing the European Community, whic h promote the interests, health and safety 
of European consumers. It is designed to ensu re that the internal market is open, fair and 
transparent, allowing consumers to exercise re al choice, excluding rogue traders and helping 
consumers and businesses take full a dvantage of the market’s potential. 
With so many new products and brands and in creasingly sophisticated  financial services, 
European consumers are having a hard time getting their bearings. They are not comfortable with the idea of buying something in another count ry of the European Union: only one out of 
five people have done so over the past twelve m onths. Yet, the EU single market offers many 
possibilities for competition a nd for buying at a lower price. 
14.3.2.  Report of Work Done in 2008 
Several important steps were made with regard  to the further devel opment of the consumer 
acquis. The year of 2008 saw, in particular, the adoption by the legislator of two Directives 
which replace the existing rules in relation to ti meshare and consumer credit. As a result of 
the review of the consumer acquis, ongoing since 2004, the Commission adopted in October 
2008 a proposal for a new Directive on consumer rights, which would replace four existing 
Directives related to consumer contract law. 
The Commission's proposal for a new Directive on consumer ri ghts brings together and 
updates the Distance Selling Directive 97/7/EC, the Doorstep Selling Directive 85/577/EC, 
the Consumer Sale of Goods Directive 99/44/E C and the Unfair Contract Terms Directive 
93/13/EC. The impact assessment preceding this proposal evaluated the existing consumer rights Directives and identified the fragmentatio n of national consumer protection laws as a 
significant regulatory barrier preventing consumers and businesses from reaping the full 
benefits of the internal market. The main cause of the fragmentation is the minimum harmonisation clauses contained in  the Directives. Businesses ar e therefore reluctant to sell 
cross-border or pass the additi onal costs incurred to consum ers. By harmonising the most 
important aspects of consumer rights legislatio n consumers and businesses will be able to 
benefit from the same rules all over the EU. As a consequence consumers will have more opportunities to buy from traders who were previous ly reluctant to sell cross-border. The new 
Directive will upgrade existing cons umer protection in key areas where there have been large 
numbers of complaints in recent years, such as doorstep selling. It also adapts the legislation 
to new technology and sales methods, for exam ple m-commerce (purchase by mobile phone). 
EN 295   EN Furthermore, the Council and Parliament reached  agreement on the new Timeshare Directive, 
(Directive 2008/122/EC  of the European Parliament and of the Council of 14 January 2009 on 
the protection of consumers in respect of cer tain aspects of timeshare, long-term holiday 
product, resale and exchange contracts), which will have to be transposed by February 2011. 
The purpose of the revision of this Directive is  to boost consumer confidence in industry and 
to eliminate the rogue traders who cause pr oblems for consumers and bring legitimate 
operators into disrepute. Many consumers had experienced problems with new products that 
had emerged on the market, in particular, with  the so-called discount holiday clubs. These 
products often require the consumer to pay ini tial membership fees of several thousand euros 
in order to get access to discounted holidays. Since no EU legislation applied to these 
products, consumers who had been pressed to sign up for membership were not able to 
change their mind and withdraw. With the new legislation, consumers purchasing these 
products will benefit from extensive pre-contra ctual information, a right of withdrawal and a 
ban on advance payments during the withdrawal  period. The consumer will also enjoy these 
rights if he wants resell his time share through a resale agent or  if he wishes to join an 
exchange system allowing him to benefit from ot her holiday destinations in exchange of his 
timeshare. 
In 2008 the Commission adopted a report on the impact of Dir ective 98/27/EC on injunctions 
for the protection of consumers' interests. Th e report describes how th e Directive has been 
transposed by the Member States into their na tional laws and points out  the difficulties (such 
as the cost and complexity of court proc eedings) faced by consumer organisations and 
consumer public authorities when seeking an injunction for breaches of consumer-protection laws, in particular in cro ss-border cases. The report conc ludes that the new consumer 
enforcement network set up by the Consumer Pr otection Regulation and the new EU rules on 
the laws applicable to non-cont ractual obligations should, at leas t partially, help to overcome 
these difficulties. Consequently, it was concl uded that the Commission would not propose any 
changes to the Directive and would c ontinue to monitor its application. 
The new Directive 2008/48/EC on consumer credit was adopted on 23 April 2008 and will 
have to be transposed by June 2010. The Dire ctive represents full harmonisation and has two 
main objectives: creating an internal market in consumer credit while ensuring a high level of consumer protection. The Direc tive concentrates on transparen cy and consumer rights and 
provides for a comprehensible set of pre-contract ual information to be given to consumers in 
good time before the contract is concluded. In order to enhance the comparability of different 
offers and to make the information better unde rstandable, this pre-contractual information 
needs to be supplied in a standardised form (Standard European Consumer Credit Information). 
Moreover, by virtue of the Directive, cons umers will also receive a harmonised set of 
contractual information and an Annual Percenta ge Rate of Charge (APR) harmonised at EU 
level, representing the cost of the credit. Th e Directive foresees in  addition two essential 
rights for consumers: the right to withdraw from the credit agreement without giving any 
reason within a period of 14 days after the conclu sion of the contract and the right to repay the 
credit early at any time, while the creditor can ask for a fair and objectively justified 
compensation. 
The Commission is actively supporting the Member  States in the transposition process and a 
first transposition workshop was held in 2008. 
Transposition and application of Directive 2005/29/EC 
EN 296   EN 2008 was the first year of enfo rcement of Directive 2005/29/EC of the European Parliament 
and of the Council concerning un fair business-to-consumer commercial practices in the 
internal market. While many Member States were late in transposing the Directive, which led 
to infringement proceedings for non-commun ication initiated by the Commission, most 
Member States notified their transposition measur es in 2008. By the end of that year only two 
Member States, Spain and Luxembourg, had not yet notified transposition measures and, in 
the case of Luxembourg, the Cour t of Justice confirmed the infringement on 5 February 2009. 
However, it seems that several Member Stat es have either transposed the Directive 
inadequately or maintained legal measures which deviate from the Directive. With regards to the latter problem, national courts submitted a number of references for preliminary rulings to the Court of Justice. In one of these cases , Case C-261/07 VTB-VAB v Total, the Advocate 
General delivered an opinion in which she cons idered the Belgian provisions which prohibit 
joint offers (i.e. tying the acquisi tion of one product or service to another, even if the latter is 
free) to be incompatible with Directive 2005/65/EC. Further references for preliminary 
rulings are expected in 2009. In addition to this, the Commission will launch infringement 
proceedings against some Member States in 2009. 
In 2008 the Commission decided th at in order to ensure a hi gh level of convergence in the 
interpretation of the Directive it would be appropriate to issue guidelines aimed at helping national authorities and other stakeholde rs. These guidelines, which will be updated 
periodically, will be published in the second half  of 2009. In order to obtain information on 
the Directive's operation and implementation, th e Commission sent out a questionnaire to all 
Member States, European Consumer Centres an d other stakeholders asking respondents to 
identify practices which they have encount ered. The feedback will inform the Commission 
about the most problematic practices. When drafting the guidelines the Commission will 
suggest a common approach to widespread, pan-European unfair commercial practices. 
On 24 February 2009, the Commission organi sed a conference entitled "The Unfair 
Commercial Practices Directiv e - One Year After", which brought together members of 
national enforcement authorities, stakeholders  and academics to discuss national experiences 
with the application of the Directive. The conference allowed participants to exchange best practices in relation to its implementation an d enforcement and to discuss interpretation 
problems, in particular in rela tion to emerging unfair practices. 
Transposition and application of other consumer protection Directives  
In 2008 the Commission stepped up its efforts in carrying out systematic checks on the quality 
of transposition in the Member States in relati on to several consumer pr otection Directives. In 
addition, a number of complaints which identi fied certain potential transposition problems 
were dealt with. 
This led to the opening of infringement proceed ings based on the inadequate transposition of 
Directive 93/13/EEC on Unfair Terms against a nu mber of Member States. In a few instances 
Member States provided satisfact ory responses and the cases were closed. In some cases the 
Member States concerned changed their legislation. In several cases infringement proceedings will be continued in 2009. 
Transposition checks carried out in relation to Directive 99/44/EC on Sale of Consumer 
Goods and Guarantees and Directive 2002/6 5/EC on Distance Marketing of Financial 
Services can be expected to give rise to th e opening of infringement proceedings against a 
EN 297   EN number of Member States in 2009. In addition, se veral complaints were received in relation to 
Directive 99/44/EC. 
At the end of 2008, Germany amended its transposition of Dir ective 99/44/EC as a 
consequence of the Court's judgment in Case  C-404/06 Quelle and parallel infringement 
proceedings. According to the new German rule s, sellers may no longer require consumers to 
pay compensation for the use of defective goods until their replacement with new goods. 
Transposition checks in relation to other Dire ctives, including Directiv e 97/7/EC on Distance 
Contracts and Directive 98/27/EC on injunctions for the protection of consumers' interest will 
continue in 2009. 
In relation to Directive 90/314/EEC on Pack age Travel, at the beginning of 2008, Italy 
submitted a draft amendment to its legislation transposing the Directive. The amendment would finally remove a provision under which c onsumers lose their entitlement to receive 
refunds from the guarantee fund for the money paid  over and for repatria tion in the event of 
insolvency of the organiser if the request has no t been made within thr ee months after the end 
of the journey. However, since the Commission had not been no tified of the adoption of the 
amendment before the end of 2008, it is likely that the matter will  be referred to the Court of 
Justice in 2009. 
Finally, there were a number of new requests fo r preliminary rulings under Article 234 EC in 
relation to different consumer protection Dir ectives, including Direc tive 93/13/EEC on Unfair 
Terms and Directive 85/577/EEC on Doorstep Selling. The cases on 93/13/EEC relate, in 
particular, to the power and possibly the obliga tion of national courts to consider the unfair 
nature of relevant te rms of their own motion
411. One case relates to Directive 85/577/EEC and 
concerns the question of whether a national co urt may, of its motion, declare a contract void 
where the consumer was not informed of his ri ght of withdrawal and did not invoke it before 
the court. 
Apart from Case C-404/06, which concerns Dir ective 99/44/EC mentione d above, it is worth 
mentioning the Court's ruling in Case C-205/07  Gysbrechts. This case concerns a Belgian 
provision which prohibits supp liers engaging in distance se lling from requiring advance 
payments or any payment from consumers befo re expiry of the withdrawal period and, 
thereby, goes beyond the minimum protection level of Directive 97/7/EC on Distance 
Contracts. The Court found that Article 29 EC does not preclude such a rule in cross-border 
distance selling, but does precl ude a prohibition on requesti ng, before expiry of the 
withdrawal period, the number of  the consumer’s payment card. 
Implementation of Decision 2006/502/EC on lighters 
On 17 October 2008 the Commission sent a letter of formal notice to Germany. This followed 
Germany's failure to fulfil its obligati ons under Decision 2006/502/EC as amended by 
Decision 2008/322/EC. Decision  2006/502/EC is based on Arti cle 13(4) of Directive 
2001/95/EC on general product safety and requires Me mber States to take measures to ensure 
that until 11 May 2009 only lighters which are child-resistant are placed on the market and to prohibit the placing on the market of novelty lighters. On 19 December 2008 the Commission 
                                                
 
411 E.g. Cases C-40/08 Asturcom Telecomunicaciones , C-137/08 VB Pénzügyi Lízing , C-243/08  Pannon 
GSM, all pending. 
EN 298   EN was informed that Germany had adopted le gislation complying w ith the Commission 
Decisions on lighters, which will allow the Commission to close the case in 2009. 
EU-Sweeps 
In 2008 the second EU "Sweep" was carried out, involving systematic and simultaneous 
checks in different Member States to inves tigate potential breaches of consumer protection 
rules in a specific sector. This  second EU-wide investigation l ooked into websites offering 
mobile phone services such as ring-tones and wallpapers. The enquiry, which was carried out 
on more than 500 websites across the 27 Member  States, Norway and Iceland, found that 80% 
of the sites checked needed to be further invest igated for suspected breaches of EU consumer 
rules. Many of the websites targeted ch ildren and young people. Problems found included 
unclear price information, e.g. prices were incomp lete or did not include taxes, or related to 
the fact that customers were not made aware that they were signing a subscription. Large 
numbers of websites did not provi de some of the required cont act information on the trader. 
Other problems related to misleading informa tion where key information was hidden in very 
small print, was hard to find on a website, or the word "free" was used in a misleading manner 
so as to entice consumers into long-term contracts. 
An intermediate report on the follow-up of the 2007 Sweep related to websites selling air 
tickets was published in Februa ry 2008. The results of the report showed that 40% of the 
websites with irregularities were corrected as a result of enforcement measures taken by the 
Member States. Enforcement procedures were initiated and were still ongoing for the remaining cases. Member States will report on the final results of the enforcement phase in the spring of 2009. All ongoing cases are expected  to have come to a conclusion by then. 
Consumer empowerment 
Through the European Consumer Consultativ e Group (ECCG), SANCO pursued its dialogue 
with consumer organisations and consulted them  on initiatives having an effect on consumers. 
ECCG members also shared their views as well as their experiences with consumers regarding 
the application of EU legislation. We have star ted a process to improve the work and structure 
of the ECCG. 
In 2008 information campaigns raising awarenes s of EU-wide consumer rights were executed 
in Malta, Hungary and Cyprus, launched in Estonia and were under development in Latvia 
and Lithuania. The campaigns contribute to the better enforcement of consumer law by 
informing consumers about specific rights they have at home and in other EU countries, and 
by increasing awareness of associations and inst itutions that provide further information and 
advice, such as consumer associations, gove rnment institutions and European Consumer 
Centres. 
The campaign messages reached (according to da ta from the Eurobarometer Flash surveys 
undertaken to verify campaign impact) at least three quarters of the Ma ltese citizens, 83 % of 
Hungarian citizens and 97% of the Cypriot population. In add ition, materials from equally 
successful campaigns conducted in previous years in Slovenia, the Czech Republic and 
Poland were updated, reproduced and redistributed in 2008. 
Training 
EN 299   EN In 2008 the Commission services carried out a se ries of training courses designed to help 
build the capacity of European consumer organisations, aiming at providing a better 
understanding of the consumer acquis a nd thereby preventing infringements. 
Consumer Protection Cooperation (CPC) 
The Enforcement Network, also referred to as the CPC Network, which was set up in 
December 2006 to stop intra-community infringeme nts of EU consumer laws in cross-border 
situations, further developed its activities in 2008. 
265 new requests for mutual assistance were regi stered in the database (compared to 256 in 
2007) in 2008, a third of which were closed w ithin one year. Some 95 alerts (71 in 2007) 
concerning suspected or confirmed intra-community infringements were circulated within the Network. In addition, a second joint market surveillance and enforcement exercise was 
carried out in the form of a sweep on sites selling ring tones for mobile phones (see above) 
and the network engaged in a series of common activities co-funded by the Commission. 
Whilst the Network's development so far has been  positive, the practical experience gathered 
in this second year of operations  and, in particular in the cont ext of the joint sweep exercises, 
also revealed that the Networ k has not yet reached its full potential. The pressure on the 
Network is growing as the averag e time required to handle cases is increasing. Statistical data 
extracted from the IT-tool used by the Networ k also shows that some authorities do not 
connect to the tool as often as a sm ooth running of the system would require. 
In 2008 the Commission services th erefore initiated discussion w ith the Member States on the 
above described issues with th e objective to identify the underl ying factors and elements. The 
issue was further raised in the Comp etitiveness Council of 2 December 2008. 
As a further step, in 2009, the Commission will carry out the first biennial assessment of the 
Network's operation as provided for in Regulation (EC) No 2006/2004 on Consumer 
Protection Cooperation, building on reports fro m Member States and its own experience. A 
central element of this report will be to identify the shortcomings that need to be addressed so 
that the Network reaches its full potential . Other activities planned for 2009 include a 
workshop with Member States dedicated to ma king the Network's operation more effective. 
Lastly, in the broader contex t of the Consumer Policy Strategy, which emphasizes the 
importance of enforcement as one of its p illars, the Commission will adopt a Communication 
on the Enforcement of the Consumer Acquis. It will take stock on what  actions have been 
taken in the field of consumer enforcement, aim to identify the main challenges that need to 
be overcome and, where appropriate, address a ny shortcomings through instruments already 
available to ensure a more effectiv e enforcement of EU consumer law. 
RAPEX 
RAPEX is a Community rapid alert system for dangerous non-food consumer products. It 
ensures that information about dangerous prod ucts withdrawn from th e EU market and/or 
recalled from consumers is quickly circulated  between Member States and the European 
Commission, with the aim of preventing or rest ricting the selling of these products on the 
market. The system was established by and operates under the General Product Safety 
Directive (2001/95/EC, the "GPSD"). 
EN 300   EN The total number of notifications sent through the RAPEX system by Member States has risen 
gradually since 2004 (when the GPSD was trans posed into the national laws by Member 
States). In the fifth year the number of RA PEX notifications quadr upled from 468 (in 2004) to 
1866 (2008). In 2008 the number of notifications rose by 16% co mpared to 2007. The growth 
in the number of notifications can be ascribed to increasing awareness and attention given to 
product safety by national author ities and the business sector , more frequent and more 
effective controls of consumer products on the market, joint market surveillance actions 
carried out by national authori ties, the EU enlarg ements in 2004 and 2007 and, finally, several 
training actions and seminars provided by  the European Commission for different 
stakeholders. As in previous years, toys, elec trical appliances and motor vehicles were the 
most frequently notified products. 
Revision of the RAPEX guidelines 
In 2008, the Commission launched the revision of the “Guidelines for the management of the 
Community Rapid Information System (RAP EX) and for notifications presented in 
accordance with Article 11 of Directive 2001/95/E C” (the “RAPEX Guidelines”), which were 
adopted in 2004 in the form of a Commission Decision (2004/418/EC). 
The decision to revise the RAPEX Guidelines resu lted mainly from the n eed to (i) adjust the 
operation of the system to best  practices that will ensure more efficient and effective 
functioning of the system and (ii)  to take into account the most  important developments in the 
product safety area. The new RAPEX Guidelines will clarify the applicat ion of many existing 
provisions, such as those that regulate the not ification criteria and th e scope of the system. 
The new Guidelines will also introduce new pr ovisions which over the years have proved to 
be necessary for the consistent application of RAPEX notification obligations by all Member States, for example, provisions on confidentialit y, the permanent withdrawal of a notification 
from the system and the temporary removal of a notification from the RAPEX website. The new RAPEX Guidelines will also include the new improved Risk Assessment Method that is 
being prepared by a team of experts from the Member States. The Commission Decision 
introducing the new RAPEX Guidelines is  expected to be adopted in 2009. 
RAPEX seminars 
In 2008, as in previous years, the Commission services organised RAPEX seminars in the 
Member States. The training sessions took pla ce in Bulgaria, Malta and Portugal. Since the 
beginning of 2006, a total of 23 Member St ates hosted RAPEX seminars and over 1000 
inspectors have been trained. The seminars are organised for the benefit of the national market 
surveillance and customs authorit ies where they can discuss vari ous aspects of product safety, 
such as: the application of RAPEX, the Eur opean legal framework for consumer products, 
obligations for national authorities and bus inesses under the product safety law, risk 
assessment of consumer products and latest devel opments in the product safety area. Training 
activities will continue in 2009. 
Seminars on businesses' obligati on to notify dangerous products 
In 2008, in addition to RAPEX seminars, the Co mmission hosted in Brussels training sessions 
on businesses' obligation to no tify dangerous products. Traini ng sessions were intended for 
national authorities from all Member States a nd EFTA/EEA countries that are in charge of 
receiving and treating notifica tions on dangerous products sent  by operators. The training 
sessions lasted for 4 days and in total 50 expe rts from national authorities were trained. 
EN 301   EN During this training experts discussed the rele vant aspects of the businesses' notification 
obligation, such as: notification criteria, info rmation to be provided and required follow-up 
actions, and tested the new on-line system called "Business Application" to be established by the Commission services in this area. 
Joint Actions on market surveillance activities 
To support the Member States in their cros s-border activities, in 2008 the Commission 
awarded a financial contribution of EUR 2.6 million to four joint market surveillance actions. 
These joint actions focused on: toys for child ren under three years, sun beds and solarium 
services, cords and drawstrings in children’ s clothing, and a follow-up of the successful 
EMARS project (Enhancing Market Surveillance  through Best Practice) . Joint actions proved 
to be very successful in deliver ing concrete results and, in pa rticular, the three-year EMARS 
project (concluded at the end of 2008) produced a number of  important results including a 
best practice handbook for market surveillan ce and a Rapid Advice Forum that provides 
market surveillance officers with access to the expertise of their colle agues in other Member 
States in a fast and informal manner. To fu rther strengthen coopera tion between the Member 
States on consumer product safety, the Commis sion will continue join t actions in 2009 and 
2010 and will financially contribute to the be st proposals suggested by Member States. 
The European Consumer Centres Network (ECC-Net) 
In 2008, the European Consumer Centres Ne twork (ECC-Net) helped more than 60.000 
consumers with information and advice on cros s-border shopping, both in  person and online, 
ensuring that they are aware of their rights,  and providing support in handling complaints. 
This is an increase of more than 5000 cont acts compared to 2007. In 2008 most complaints 
dealt with by the ECCs concerned products an d services (26.8%), selling techniques/unfair 
commercial practices (23.8%) and delivery (19.9 %). The most concerned sectors were air 
transport and car rentals, accommodation services , fake lotteries and audiovisual equipments. 
Almost half of the complaints con cerned on-line transactions (46%). 
Apart from informing consumers on both EU and national rules, as well as advising 
consumers facing cross-border problems, the ECCs also helped consumers to reach 
agreements on complaints with traders usi ng out-of-court dispute resolution mechanisms. 
Contacts are increasing yearly, with  a further increase of 30% in 2008. 
With the help of latest technology in the fo rm of a new database, which was launched in 
January 2007 and is continuously  updated, co-operation between centres was more efficient 
and will be further improved in the future. Th e ECCs also provided valuable input for the 
European Commission on significa nt consumer policy issues. 
Within the framework of their co-operation the ECCs were running join t projects, such as a 
review on complaints regarding air passenger rights (led by the UK ECC for 2008), "Howard" 
the on-line shopping assistant (alr eady in operation on many ECC web sites), an information 
campaign with leaflets on tourism and a report on “e-commerce” published in May 2008. 
The ECCs were key organizers of other awar eness-raising initiatives such as the Best 
Consumer campaign, the campaigns on consumers’  rights related to the opening of energy 
markets on the UEFA-Euro2008 and other information activities. 
EN 302   EN 14.3.3.  Evaluation, Priorities & Perspectives 
On 13 March 2007 the Commission adopted a Consumer Policy Strategy for 2007-2013. The 
strategy sets out the challenges, role, priorities and actions of EU consumer policy for this 
period. The overall objectives of the Strategy ar e to empower consumers, to enhance their 
welfare and to protect them effectively. The Commission's vision is  to achieve by 2013 a 
single, simple set of rules for the bene fit of consumers and retailers alike. 
Given the progress achieved on the review and de velopment of the consumer acquis, effective 
enforcement will play an important role. This  will include, from the Commission's point of 
view, continued efforts in accompanying the tran sposition process in the Member States and 
supervising the transpositi on and application of Direc tives by the Member States. 
As part of a larger exercise to  monitor how well the internal market functions for consumers, 
SANCO will develop indicators to measure the eff ectiveness of enforcement at national level. 
National policies and institutions related to enforcement play a key role in making the internal market function for consumers: free circula tion of safe products and the protection of 
consumers from rogue traders depend on the effectiveness of enforcement and market 
surveillance in all Member States. Following  a pilot project with members of the CPC 
(Consumer Protection Cooperation) and GPSD  (General Product Safety Directive) 
committees, an expert group will be set up in 2009 to identify the most appropriate indicators, 
taking account of differences betw een national enforcement systems. 
The Commission is planning to open a period of joint reflection with the Member States on 
the future role of ECC-Net. In parallel, an ev aluation of the Network is  foreseen five years 
after the merger of the two previous networks  into ECC-Net. This evaluation should take 
place in 2010. 
14.3.4.  Summary of Sector 
The challenge in this sector in the near future  is to increase EU-wid e consumer confidence for 
cross border shopping through clearer, simplified and harmonised rules that are uniformly 
enforced by national authorities. Through enha nced application of the consumer acquis 
consumers should be as confident about making pur chases in other countries as they are at 
home. 
14.4. Food Safety 
14.4.1.  General Introduction 
The EU integrated approach to food safety aims to assure a high level of food safety, animal 
health, animal welfare and plant health within  the European Union th rough coherent farm-to-
table measures and adequate monitoring, while  ensuring the effective functioning of the 
internal market. The implementa tion of this approach involves the development of legislative 
as well as other actions. 
Legislation applicable to the various components of the food chain includes, in addition to the 
food and feed law, rules applicable to animal a nd plant health and to th e welfare of animals. 
The issues covered by that vast acquis are high  on the EU's agenda. Europe's citizens expect 
their food to be safe, and safety concerns carry a high political and financ ial cost. The need to 
safeguard the EU against animal and plant diseases also remains a top priority. 
EN 303   EN 14.4.2.  Work done in 2008 
Work is ongoing on the modernisation and simplific ation of the legislati on applicable to food 
and feed safety, animal and plant health, and an imal welfare. The aim is to achieve better 
enforceability of existing rules, whilst providi ng for a state of the art legislative framework. 
Both the Animal Health Strategy412 and the recently launched work towards a Plant Health 
Strategy413 include the objective of providing th e Community with a more rational and 
directly enforceable set of rules in these areas in order to replace a va st amount of Directives 
adopted in the course of the last decades (the food safety area counts one of the largest acquis, 
numbering more than 500 Directives). 
A recent study on the implementation of Regul ation (EC) No 882/2004 on official controls 
also suggests the need to refl ect on another important feature of the enforcement system in the 
food safety area – the in spection fees (below). 
Implementation of Regulation (EC) No 882/2004 
Regulation (EC) No 882/2004 estab lishes the general pr inciples applicable to the official 
controls carried out by Member St ates in the food and feed sector s and in the areas of animal 
health and animal welfare. A report on the ex perience gained from the application of the 
Regulation, on the basis of Article 65 thereof, ha s been prepared and will be transmitted to the 
European Parliament and the Council in the course of 2009. 
The Regulation contains in particular specific provisions on the financing of official controls. 
These provisions allow for a great degree of fl exibility in the way they are implemented by 
Member States. An external evaluation of th e system was commissioned in 2008 and aimed at 
providing a better understanding of the functioning of the provisi ons laid down in Articles 26 
to 29 of Regulation (EC) No 882/2004, as curr ently implemented by the Member States. 
The final result of the evaluati on, delivered at the beginning of  2009, confirms the complexity 
of the situation, identifies some shortcomings in the current legislativ e framework applicable 
to inspection fees and in its implementation by Member States, and discusses the possible 
need to review some of the features of that framework. The Commission services, in 
consultation with the relevant stakeholders, w ill therefore consider whether changes to the 
existing legal framework would be needed to ma ke its application easier and its enforcement 
more efficient. 
From the same perspective, a similar review is ongoing with refere nce to the official controls 
provisions contained in Council Directive 96 /23/EC on measures to monitor certain 
substances and residues thereof and in Re gulation (EC) No 396/2005 of the European 
Parliament and of the Council on maximum residue levels of pesticides in or on food and feed 
of plant and animal origin and amending Council Directive 91/414/EEC. 
                                                 
412 Communication from the Commission to the Council, the European Parliament, the European 
Economic and social committee and the Committee of the Regions on a new Animal Health Strategy 
for the European Union (2007-2013) where “Prevention is better than cure”. COM(2007) 539 final. 
413 The Council called on the Commission to evaluate the current plant health acquis  and to consider 
possible modifications to it, and subsequently present a proposal for a Community plant health strategy. 
The Commission has launched the evaluation, and a study is expected to start by mid 2009. 
EN 304   EN All official controls should in fact be conducted according to the principles and overall 
approach of Regulation (EC) No 882/2004. Theref ore, with the objectiv e of better regulation 
in mind, consideration will be given to the po ssibility of integratin g the rules currently 
applicable to official controls on pesticides, contaminants and residues of pharmacologically 
active substances in food into the framewor k of Regulation (EC) No 882/2004, so as to 
rationalise and simplify the ove rall legislative framework and make its application easier. 
FVO inspections 
At Community level, valuable informati on regarding the appli cation of Community 
legislation along the food chain is provided by the inspection activitie s of the Commission's 
FVO. Information collected by the FVO during r ecent years was carefully screened in 2008 to 
provide an overview of potential shortcomings in relation to the transposition of the many 
Directives which currently govern activities along the food chain. 
As a result of the FVO inspections, a relati vely small number of problems linked to 
transposition have been identified. the Commi ssion services are in contact with the Member 
States concerned to address these issues thr ough an array of approaches using its tool-box. 
The FVO continues to screen Directives with  the purpose of identifying any significant 
transposition problems. In a similar vein, the Commission services are considering the most 
efficient and effective enforcement action with re spect to issues other than transposition that 
have been identified by the FVO. 
In three cases the Commission decided to pursu e infringement proceedings against Greece 
because that Member State persistently fa iled to comply with a range of important 
components of Community food safety legislation. 
The FVO missions have highlighted since 1998 fundamental systemic shortcomings in the 
performance of the Greek authorities’ official  controls in the area of food safety, animal 
health and animal welfare. These shortcomings being partially attributable to the scarcity of human resources in the Greek vete rinary services and after consid ering that the results of the 
efforts made by the Greek authorities to solve these problems were unsatisfactory, the case 
was referred to the Court (C-331/07). 
In September 2005 the FVO unravelled further ev idence of systemic deficiencies in the 
management of animal by-products. An infri ngement procedure which brought together a 
previous case with new elements was initiated a nd finally referred to the Court of Justice in 
2008. 
Also following inspections of the FVO, the Community referred Greece to the Court of 
Justice for failure to apply in a satisfactory way the Community legislation relating to the 
protection of animals during tr ansport and in slaughterhouses. 
Likewise, the Commission decided to refer an infringement procedure against Italy to the 
Court of Justice on the grounds that  a Member State cannot prevail itself of safety issues to 
impose trade barriers where such issues have already been addressed by the Community in a 
uniform and evidence-based approach. In this specific case, the Commission was of the view that as Community legislation sufficiently addre sses the problem of avian influenza, Italy is 
not entitled to impose additional measures by maki ng it compulsory to indicate the origin of 
the product on the labelling of pou ltry. Therefore, the Commission referred Italy to the Court. 
EN 305   EN 14.4.3.  Food Hygiene 
The Community Food “Hygiene Package”, which resulted from the White Paper on Food 
Safety414 and entered into applicat ion on 1 January 2006, is composed of three Regulations 
consolidating, updating and simplifying the Community legislation on food hygiene: 
• Regulation (EC) No 852/2004 of  the European Parliament and of the Council on the 
hygiene of foodstuffs; 
• Regulation (EC) No 853/2004 of the European Pa rliament and of the Council laying down 
specific hygiene rules for f ood of animal origin, and 
• Regulation (EC) No 854/2004 of the European Pa rliament and of the Council laying down 
specific rules for the organisation of official c ontrols on products of animal origin intended 
for human consumption. 
The new rules are based on the principles of a risk-based approach to a comprehensive and 
integrated food chain – from farm to fork – an d the separation of respons ibilities of the food 
business operators and the competent authorities. 
The main objective of these Regulations is to place the primary responsibility for food safety 
at the level of the food business operators . Moreover, the new rules aim at preventing 
contamination of food from biological, chem ical and physical hazards by enabling food 
business operators to identify such hazards by  the application of procedures based on the 
Hazard Analysis Critical Control Point ( HACCP) principles. These procedures became 
compulsory for all non-primary food operators. The principle of flexibility incorporated in the 
new rules enables the continue d use of traditional methods at any stage of production, 
processing or distribution of food. 
General provisions are laid down for all foods tuffs, while specific provisions are laid down 
for foodstuffs of animal origin. Measures provi ding detailed criteria and conditions for the 
implementation of the above mentioned Regulatio ns have also been adopted. These include: 
• Commission Regulation (EC) No 2073/2005 on microbiological criter ia for foodstuffs: 
This Regulation defines two categories of criteria: i.e. food safety criteria which are 
applicable to products placed on the market during their entire shelf-life, and process 
hygiene criteria to indica te the correct functioning  of the production process.  Currently, the 
focus is on the correct implementation of the cr iteria. The microbiological criteria are also 
used as references during discussions on food safety standards for global trade within the 
Codex Alimentarius Committee for Food Hygiene of the FAO and WHO.  
• Commission Regulation (EC)  No 2074/2005 laying down implementing measures for 
certain products under Regula tion (EC) No 853/2004 of the European Parliament and of 
the Council and for the organisation of of ficial controls under Regulation (EC) No 
854/2004 of the European Parliament and of  the Council, and Regulation (EC) No 
882/2004 of the European Parliament and of th e Council, derogating fr om Regulation (EC) 
No 852/2004 of the European Parliament and of the Council and amending Regulations 
(EC) No 853/2004 and (EC) No 854/2004. This Regulation contains a set of implementing 
measures such as provisions concerning  food chain information, recognised testing 
                                                 
414 COM(1999)719. 
EN 306   EN methods for detecting marine biotoxins, lists of establishments, mode l health certificates 
for certain products of anim al origin and a derogation for foods with traditional 
characteristics; 
• Commission Regulation (EC) No  2075/2005 laying down specific rules on official controls 
for Trichinella in meat. This Regulation requires the examination for the presence of 
Trichinella  parasite in all slaughtered pigs, wild boar and horses, except for pigs 
originating from Trichinella free farms or regions declared as  having a negligible risk. The 
Trichinella  parasite causes disease in humans wh en raw (or undercooked) meat from pigs, 
wild boar or horses is consumed; 
• Commission Regulation (EC) No 2074/2005 laying down transitional arrangements for the 
implementation of Regulations (EC) No 853/2004, (EC) No 854/2004 and (EC) No 
882/2004 of the European Parliament and of the Council and amending Regulations (EC) 
No 853/2004 and (EC) No 854/2004. The latter Regulation ensures a smooth transition from the old to the new regime until 31 December 2009. The measures include in 
particular provisions concerning stocks of food of animal orig in, placing of food of animal 
origin on national markets, materials bearing pre-printed health or identification marks, 
marking equipment, health import conditio ns, food chain information, training of 
slaughterhouse staff, certificati on of establishments and the accreditation of laboratories. 
The Commission continued to seek pro-active solutions outside or in parallel with 
infringement procedures under Article 226 of  the EC Treaty by using the preventive 
mechanism of Directive 98/34/EC (whereby Member States are obliged to notify the 
Commission of new national tech nical rules at the draft st age) and “package meetings” 
organised with Members States to discuss pe nding complaints/infringements, notifications of 
draft legislation, as well as other various horizontal issues. 
14.4.3.1.  Legislative Changes Underway 
Because of its innovative nature, the European  Parliament and the Council had requested the 
Commission to prepare a report already after onl y three years of application, i.e. by 20 May 
2009.
415 The report shall, in particular, review the experience gained from the application of 
the Food Hygiene Package and consider whethe r it would be desirable and practicable to 
extend the implementation of hazard analysis an d critical control point ("HACCP") principles 
to the level of primary production. A wide consu ltation with the Member States and the other 
stakeholders launched at the end of 2007 wa s continued in 2008 to identify the main 
difficulties that were experienced in implemen ting these Regulations. On this basis, the 
Commission is preparing the report which will  present factually the experience gained, 
including the difficulties encountered, in 2006, 2007 and 2008 from the implementation of the 
hygiene package by all actors involved. 
The Commission intends also to follow closely the discussions and the development of the 
microbiological criteria in th e Codex Alimentarius Committ ee for Food Hygiene and to 
consider baseline studies on certain microbiol ogical criteria to evaluate their correct 
implementation. Furthermore, the Commission w ill consider new criteria or update the 
existing ones taking into account emergi ng risks and new risk assessments. 
                                                 
415 Article 16 of Regulation (EC) No  852/2004; Article 14 of Regulation (EC) No 853/2004; and, Article 
21 of Regulation (EC) No 854/2004. 
EN 307   EN 14.4.3.2.  Evaluation 
The impact of the new principles and requi rements introduced by the Food Hygiene Package 
is positive. By and large, Member States have  taken the necessary ad ministrative and control 
steps to ensure compliance but there is s till room for improvement in relation to 
implementation. This assessment is further support ed by the findings of audits and inspections 
carried by the Commission's FVO. 
The main difficulties identified are in relation to  certain exemptions from the scope of the 
Food Hygiene Package, some definitions laid  down in the relevant Regulations and the 
procedure for adapting those definitions and practical aspects conc erning the approval of 
establishments handling foods of animal origin and the marking of such foodstuffs, the import regime for certain foodstuffs, the implementation of HACCP-based procedur es in certain food 
businesses and the implementation of offi cial controls in certain sectors. 
14.4.4.  Food Labelling 
Directive 2000/13/EC of the European Parliament  and of the Council on the approximation of 
the laws of the Member States relating to th e labelling, presentation and advertising of 
foodstuffs sets out harmonised rules to enable Eu ropean consumers to get comprehensive 
information on the contents and the composition of food products. 
14.4.4.1.  Legislative Changes Underway 
The existing legislation is outdated. The genera l food labelling legislation has been in force 
since 1978, while the existing nut rition labelling rules were a dopted in 1990. Since then, the 
number of products has increased  considerably and the way mark eting is done has evolved as 
well as consumer demands. 
The Commission accordingly adopted on 30 Janua ry 2008, a proposal for a Regulation of the 
European Parliament and of the Council on the provision of food information to consumers. 
This proposal combines Directive 2000/13/EC  with Council Directive 90/496/EEC on 
nutrition labelling for foodstuffs into one inst rument. In addition, the proposal simplifies the 
structure of the horizontal food labelling legi slation in Directive 2000/13/EC, by recasting and 
replacing provisions already in  place under this Directive. 
According to the proposed Regulat ion, pre-packaged food will ha ve to display key nutritional 
information on the front of the package. Gene ral requirements on how  nutrition information 
should be displayed on food labels are also set out, although there is room for Member States 
to promote additional national schemes, provide d that they do not undermine the EU rules. 
For public health reasons, the draft Regulation extends the current requ irements for allergen 
labelling to cover non pre-packed food, including food sold in restaurant s and other catering 
establishments. Industry should also benefit fr om the proposed new rules, as they set up a 
clearer, more harmonised legislative framework for food labelling and create a level playing 
field for all operators. The proposed Re gulation was drawn up following extensive 
consultations with consumer organisa tions, industry and ot her stakeholders. 
14.4.4.2.  Evaluation 
The general food labelling legislation dates back to 1979. The evolution of both the foods 
market and consumers' expectations made the update and modernisation of this legislation 
necessary. To better identify the important point s on which to focus modernisation efforts, a 
EN 308   EN number of surveys and consulta tions took place and showed that the main concerns regarding 
the existing legislation were the following: the volume and dispersa l of texts making the 
legislation confusing; there was a significant part of foods that do not provide information that 
can be important for health related issues, su ch as allergens; there was misunderstanding 
among operators and consumers concerning the use of country of origin labelling; there was a 
legal limbo regarding the ingredients labelling of  alcoholic beverages; and the poor legibility 
of the labels could make it difficult for consumers to use the information and limit their ability to make informed choices. 
The revision of the legislation wi ll bring clarity to provisions th at apply to all foods. It will 
ensure that consumers receive the information th at can be important in making health related 
choices, such as those concerni ng the presence of allergens or the nutrient content of the 
product. Importantly, the mandatory information must be le gible, so that the consumers can 
easily read the label. The Commission's proposal is in line with the si mplification process in 
the context of Better Regulation. The repl acement of the current horizontal labelling 
Directives by one concise legislative act in th e form of a Regulation will provide for better 
clarity and consistency of application and enfo rcement of the rules on food labelling across all 
Member States. 
14.4.5.  Nutrition labelling 
Nutrition labelling rules are laid down in Council Directive 90/496/EEC. This Directive was 
recently amended through Commission Directiv e 2008/100/EC to revise and update a number 
of the technical rules contained therein, such as  the list of vitamins and minerals and their 
recommended daily allowances values, the defi nition for "fibre" and the list of energy 
conversion factors. 
14.4.5.1.  Legislative Changes Underway 
As stated above, the Commission adopted on 30 January 2008, a proposal for a Regulation of 
the European Parliament and of the Counc il on the provision of food information to 
consumers,
416 which will repeal inter alia  Council Directive 90/496/EEC. The amending 
Commission Directive 2008/100/EC will be incor porated in the Commission proposal for a 
Regulation on the provision of food  information to consumers during the discussions of this 
Regulation. 
14.4.5.2.  Evaluation 
The development of Community legislation rela ting to nutritional aspects of foods such as 
food supplements, the addition of vitamins and minerals and the harmonisation of nutrition 
and health claims meant that there was a need to update the certain technical aspects of the 
existing rules on nutrition labelling. The a doption of Commission Directive 2008/100/EC 
ensures coherence between different pieces of legislation. The inclusion of a definition of 
fibre in Community legislation meant that th is could be reflected in discussions on the 
revision of the definition of  fibre at international le vel in Codex Alimentarius. 
With respect to the general review of the nutr ition labelling, there is wide agreement that the 
effectiveness of that labelling can be strengthened as a channel for information to consumers to support their ability to choose a balanced diet. The Comm ission conducted consultations of 
                                                
 
416 COM(2008)40final. 
EN 309   EN stakeholders and the feedback was that ther e is dissatisfaction among stakeholders on the 
current legislation. The proposal  for the revision of the legislation aims to overcome the 
problem of disparity of the in clusion of nutrition labelling in  different Member States or 
categories of food, by making the nutrition labe lling of a limited number of nutritional 
elements mandatory on the majority of processe d food. The proposal to re vise the legislation 
mentioned under the food labellin g section will help to ensu re that consumers across the 
Community have access to releva nt nutrition information so as to make informed choices, 
taking into account the nutrition-related advi ce provided through Member States’ public 
health activities. 
14.4.6.  Nutrition and Health Claims 
Regulation (EC) No 1924/2006 of the European Parliament and of the Council, which entered 
into force on 1 July 2008, lays down harmonised rules for the use of health or nutritional 
claims (such as “low fat”, “h igh fibre” and “helps lower chol esterol”) on foods tuffs based on 
nutrient profiles. The latter Regulation aims at ensuring that any claim made on a food label in 
the EU is clear, accurate and substantiated and will thus enable consumers to make informed and meaningful choices when it comes to food and drinks. This should also contribute to a 
higher level of human health protection, as it ties in with the Commissions campaign for 
healthier lifestyle choices by allowing citizens to know exactly what th ey are consuming. The 
Regulation also strives to ensure fair comp etition and promote and protect innovation in the 
area of food. Only products offering genuine health  or nutritional benefits will be allowed to 
refer to those on their labels. 
By means of Regulation (EC) No 353/2008, th e Commission establishe d implementing rules 
for applications for authorisation of health cl aims, as provided for in Article 15 of Regulation 
(EC) No 1924/2006. These implementing rules, t ogether with guidance developed with the 
European Food Safety Authority (EFSA), aim at  assisting applicants in elaborating and 
lodging application dossiers containing, inter alia , scientific data for further assessment by the 
European Food Safety Authority. 
14.4.6.1.  Legislative Changes Underway 
In addition, substantial preparator y work has been completed for the establishment of specific 
nutrient profiles, as provided for in Artic le 4 of Regulation (EC) No 1924/2006. Nutrient 
profiles will determine whether foods are eligible, on the basi s of their nutrient composition, 
to bear claims. Such profiles will be based pr imarily on the levels of nutrients for which 
excessive intakes in the overall diet are not recommended (e.g. fat, sa turated fat, salt and 
sugars). 
The establishment of nutrient prof iles is a complex exercise that  needs to take into account 
dietary recommendations, public health consider ations and generally acceptable scientific 
evidence regarding the relationship between diet, nutrition and health (for  which the European 
Food Safety Authority provided advice in Ja nuary 2008), as well as industrial/commercial 
considerations (including innovation) and cult ural and dietary/culi nary considerations. 
The Commission has conducted specific and extens ive consultations with stakeholders on the 
establishment of nutrient profiles. Food produ cers and retailers anticipate some economic 
impact due to the restrictions  on bearing claims for some products, while consumer groups 
predict social benefits. This could reduce the ob esity levels across Europe and help to prevent 
EN 310   EN cardiovascular and other diet-related dis eases through the support and promotion of a 
balanced and healthy diet. 
14.4.6.2.  Evaluation 
While the main elements of the Regulation ar e still in the implementation phase, the new 
Regulation already prohibits some  misleading marketing practices  and benefits the European 
consumers. Claims like "99 % fat free" are proh ibited and the permitted nutrition claims shall 
comply with composition criteria. Health claims referring to the rate or amount of weight loss 
are also prohibited, and claims on alcoholic be verages are limited to referring to the reduction 
or the absence of alcohol and energy. 
In 2008, in the framework of the preparatory work on the setting of nutrient profiles, the 
EFSA developed food composition databases. The Commission tested these databases to 
evaluate the impact of different  nutrient profiles systems on the eligibility of foods to bear 
nutrition and health claims. Thes e data, together with Member States and stakeholders data, 
will also be used as a baseline to evaluate  the impact of the new rules on food composition 
and consumption, and to a larger extent on the food market and on dietar y choices, as required 
by Article 27 of Regulation (E C) No 1924/2006 in the report on the application of the 
Regulation. 
14.4.7.  Dietetic foodstuffs 
Council Directive 89/398/EEC on the approximation of the laws of the Member States 
relating to foodstuffs intended for particular nutritional uses (dietetic foods) establishes 
requirements on product composition and appropriat e consumer information for foods that are 
suitable to fulfil the particular nutritional re quirements of certain groups of the population. 
The application of Council Dire ctive 89/398/EEC has been considered in two recent 
Commission reports. The first report, adopt ed on 27 June 2008, covers the “procedure” 
foreseen in Article 9 of Council Directive 89/398/EEC, which require s the manufacturer or 
the importer of certain dietetic foodstuffs to notify the competent aut horities of the Member 
State where the products in question are marketed417. The second report, adopted on 26 June 
2008, summarises the dietary recommendations fo r people with diabetes and considers the 
desirability of special provi sions for foodstuffs for pers ons suffering from carbohydrate-
metabolism disorders (diabetes)418. 
These reports point to the need to review  Council Directive 89/398/EEC. In particular, 
attention should be given to th e relationship between the Direct ive's provisions and those of 
other Community legislation (notably on nutrition and health claims and on food 
supplements), to foodstuffs intended for diabetic s and to the authorisation procedure for the 
inclusion of new ingredie nts in infant formulae. 
Article 4a of Directive 89/398/EEC foresees the setting of rules for the use of terms 
concerning the absence of gluten in foodstuffs. The issue is particular ly relevant for people 
with celiac disease, a group of the population suffering from a permanent intolerance to gluten 
                                                 
417 Report from the Commission to the European Parliament and the Council on the implementation of 
Article 9 of Council Directive 89/398/EEC on the approximation of the laws of the Member States 
relating to foodstuffs intended for partic ular nutritional uses, COM(2008)393 final. 
418 Report from the Commission to the European Parliament and the Council on foods for persons suffering 
from carbohydrate metabolism disorders (Diabetes), COM(2008)392 final. 
EN 311   EN and for which appropriate rules for the labelli ng of suitable foodstuffs are very important. The 
setting of such rules at Community level will ensure the same high level of protection for 
consumers and allow for the free movement of the concerned products. The Commission 
adopted Regulation (EC) No 41/2009 concerning th e composition and labelling of foodstuffs 
suitable for people intolerant to gluten, whic h will be applicable as of 1 January 2012. 
14.4.7.1.  Legislative Changes Underway 
Directive 89/398/EEC is now nearly 20 years ol d and a number of issu es have arisen in 
relation to its scope and implementation. Many relate to the continued evolution of the 
Community Food law, of particul ar importance in that respect being the adoption of Directive 
2002/46/EC on Food Supplements, Regulation (EC) No 1925/2006 on the addition of vitamins and minerals and of certain other substances to f oodstuffs, and Regulation (EC) No 
1924/2006 on Nutrition and Health Claims. 
14.4.7.2.  Evaluation 
The enforceability of the acqui s on dietetic food could be imp roved. The need to rationalise 
the existing legal framework to ta ke into account of the legislat ive developments above and of 
the need to facilitate inn ovation is being considered. 
14.4.8.  Food Supplements 
Directive 2002/46/EC of the European Parliament  and of the Council partially harmonises the 
rules applicable to the placing of food supplements on the market. 
The scope of the Directive covers all food supplem ents. However, only th e rules applicable to 
the use of vitamins and minerals in the manuf acture of food supplements are laid down in the 
Directive. The use of substances other than vi tamins or minerals in the manufacture of food 
supplements therefore continues to be subject to the rules in force in national legislation. 
Therefore, Article 4(8) of the Directive prov ides that the Commission shall submit to the 
European Parliament and the Council a report on the advisability of establishing specific 
rules, including, where appropriate, positive lists on categories of nutrients or of substances 
with a nutritional or physi ological effect other than vitamins and minerals. 
14.4.8.1.  Legislative Changes Underway 
Future activities in th e field of food supplements relate  to the adoption of implementing 
measures, which include, inter alia , the setting of maximum amounts of vitamins and 
minerals and the updating of the positive list of substances in the Anne xes to the Directive. 
An impact assessment report to analyse the ec onomic, social and environmental impacts of 
the options for the settin g of maximum amounts is cu rrently being prepared. 
14.4.8.2.  Evaluation 
According to Article 4(8) of the Directive,  the Commission adopted on 5 December 2008 a 
Report
419 on the use of substances other than vita mins and minerals in food supplements. It 
concludes that the existing Community legal instruments already constitute a sufficient 
                                                 
419 COM(2008)824. 
EN 312   EN legislative framework for regulating this area and does not consider it opportune to lay down 
specific rules for substances other than vitamins or minerals for use in foodstuffs. 
14.4.9.  Voluntary addition of vitamins and minera ls and of certain other substances to 
foodstuffs 
There is a wide range of nutrients and othe r ingredients that might be used in food 
manufacturing, including (but not  limited to) vitamins, minerals including trace elements, 
amino acids, essential fatty acids, fibre, various  plants and herbal ex tracts. Regulation (EC) 
No 1925/2006 of the European Parliament and of th e Council, which is applicable as of 1 July 
2007, harmonises the provisions laid down in Member  States that relate to the addition of 
vitamins and minerals and of certain other substances to f oodstuffs. The objective of this 
Regulation is to ensure the effective functioni ng of the internal mark et whilst providing a high 
level of consumer protection. 
14.4.9.1.  Legislative Changes Underway 
Future activities in the field of fortified foods relate to  the adoption of implementing 
measures, which include inter alia  the setting of maximum amount s of vitamins and minerals, 
the updating of the positive list of substances in the Annexes to the Regulation, and the application of Article 8 on substances  other than vitamins or minerals. 
14.4.9.2.  Evaluation 
An impact assessment report to analyse the ec onomic, social and environmental impacts of 
the options for the settin g of maximum amounts is cu rrently being prepared. 
14.4.10.  GMO Food and Feed 
14.4.10.1.  Current Situation 
Regulation (EC) No 1829/2003 of the European Pa rliament and of the Council on genetically 
modified (GM) food and feed sets out a comprehensive set of rules governing the 
authorisation process for GM food and feed, wh ile ensuring a high le vel of protection of 
human and animal health, of the enviro nment and of consumers' interests. 
The Regulation provides for a single Community procedure for the authorisation of all food 
and feed containing, consisting or produced from a genetically  modified organism. This 
authorisation, valid  throughout the Community, is granted subject to a singl e risk assessment 
process under the responsibility  of the EFSA and a single risk  management process involving 
the Commission and the Member States through a regulatory committee procedure. 
In line with its oblig ations deriving from Regula tion (EC) No 1829/2003, the Commission 
strengthened the applic ation of Community legislation on GM  food and feed in the following 
three main areas: 
• Authorisations were granted to those GM food and feed complying with all the conditions 
set out in the basic legislation: 
– On 28 March 2008 the Commission adopt ed Decision 2008/279/EC repealing 
Decision 2006/69/EC authoris ing the placing on the ma rket of foods and food 
ingredients produced from genetically  modified Roundup Ready maize line 
EN 313   EN GA21 as novel foods or novel food i ngredients under Regulation (EC) 
No 258/97 of the European Parliament and of the Council; 
– On 8 September 2008 the Commi ssion adopted Decision 2008/730/EC 
authorising the placing on the market of  products containing, consisting of or 
produced from genetically modified soybean A2704-12 (ACS-GMØØ5-3), pursuant to Regulation (EC) No 1829/2003 of  the European Parliament and of 
the Council; 
– On 29 October 2008 the Commission adopted Decision 2008/837/EC 
authorising the placing on the market of  products containing, consisting of or 
produced from genetically modified LLCotton25 (ACS-GHØØ1-3), pursuant to Regulation (EC) No 1829/2003 of the European Parliament and of the Council, and 
– On 4 December 2009 the Commi ssion adopted Decision 2008/933/EC 
authorising the placing on the market of  products containing, consisting of, or 
produced from genetically modifi ed soybean MON89788 (MON-89788-1), 
pursuant to Regulation (EC) No 1829/2003 of  the European Parliament and of 
the Council. 
• The Commission monitored the situation as re gards the risk that non-authorised GM food 
and feed present in products imported from third countries are placed on the Community 
market. In April 2008, emergency measures ag ainst the presence of the unauthorised 
genetically modified organism Bt 63 in rice products coming from China were adopted by 
means of Commission Decision 2008/289/EC . In addition, the Commission updated 
Commission Decision 2006/601/EC on emergency measures regarding the non-authorised 
genetically modified organism LL RICE 601 in  rice products originating from the United 
States, so as to take into account new devel opments of the situati on by means of Decision 
2008/162/EC. 
• Finally, in line with the requirements of  Regulation (EC) No 1829/2003, the Commission 
ensured the follow up of the emergency m easures taken by certain Member States, i.e. 
France and Greece, against the marketing and cultiv ation in their territory of seed derived 
from GM maize MON 810. 
14.4.10.2.  Legislative Changes Underway 
An evaluation should take place in 2009 to review  and assess the EU legislative framework in 
the field of GM food and feed. The evaluation seeks to identify existing challenges in its 
implementation, and to ensure its relevance for the current needs focussing, in particular, on 
the regulatory approval process and the compul sory labelling of GM food and feed. This 
evaluation also aims at obtai ning a comprehensive set of da ta and information from an 
impartial source as well as to gain a clea rer view about the functioning of the current 
regulatory framework, its consequences and imp act. This information will be use as a basis 
for possible future policy decisi ons to streamline this sector. 
14.4.11.  Novel Foods 
Novel foods are foods and food ingredients that have not been used for human consumption to 
a significant degree within the Community before 15 May 1997. Regulation (EC) No 258/97 
EN 314   EN of the European Parliament and of the Council lays out detailed rules for the authorisation of 
novel foods and novel food ingredients. 
Companies that want to place a novel food on the Community market need to submit their 
application in accordance with Commission Recommendation 97/618/EC which concerns the 
scientific information and the safety assessment report required. 
A total of six novel foodstuffs were approved to be commercialised in the Community for 
2008. 
14.4.11.1.  Legislative Changes Underway 
A revision of Regulation (EC) No 258/97 was deem ed necessary in order to reflect the fact 
that genetically modified (GM) food no longer fa lls within the scope of  novel food legislation. 
The revision is also motivated from the need  to avoid stifling innova tion by creating a more 
favourable legislative environment for food indust ry, and to better facilitate both internal and 
external trade in foodstuffs. The consumer woul d also benefit from a wider choice of safe 
novel foods. 
Accordingly, the Commission adopted on 14 Ja nuary 2008 a proposal for a Regulation of the 
European Parliament and of  the Council on novel foods420. This proposal seeks to improve 
access of new and innovative foods to the EU market, while maintaining a high level of 
consumer protection and ensuring food safety. Under the draft Regula tion, novel foods would 
be subject to centralised authorisation procedure. 
In the future, the Commission will receive the ap plication for authorisation and the EFSA will 
carry out the scientific  assessment on the product. The "o ne door –one key" approach to 
approval of novel foods will ali gn the process to that taken on food additives, food enzymes 
and food flavourings. This means that the applicant may make one application for approval covering all these possible uses of the substance in question. 
The proposal also sets out data protection ru les, which aim to protect newly developed 
foodstuffs once authorised and encourage compan ies to invest in developing new types of 
foods and food production techniques. Moreover, a notification procedure is introduced for 
foods which have not been traditionally sold in the EU but which have a safe history of use in 
third countries. 
14.4.11.2.  Evaluation 
The proposed changes to the rules which curren tly govern the approval of novel foods in the 
Community will rationalise the existing legal framework and increase its efficiency and 
clarity. The new rules will also better respond to the developmen ts of food technology and the 
needs of food industry and consumers. 
                                                
 
420 COM(2007)872final. 
EN 315   EN 14.4.12.  Food additives 
14.4.12.1.  Current Situation 
Council Directive 89/107/EEC on the approximation of the laws of the Member States 
concerning food additives authorised for use in foodstuffs intended for human consumption 
lays down the general principles for authorisat ion of food additives in the European Union. 
This Directive is complemented with the Euro pean Parliament and the Council Directives 
94/35/EC on sweeteners for use in foodstuffs, 94/36/EC on colo urs for use in foodstuffs and 
95/2/EC on food additives other than colour s and sweeteners which lay down the list of 
authorised food additives and their conditions  of use to the exclusion of all others. 
A new Regulation (EC) No 1333/2008 on food a dditives was adopted on 16 December 2008, 
most provisions of which will apply from 20 January 2010. The Regulation: 
• simplifies the food additive legislation by co nsolidating the provisions of Directives 
89/107/EEC, 94/35/EC, 94/36/EC and 95/2/EC; 
• confers implementing powers on the Commission to update the Community lists of 
authorised food additives; 
• sets up a re-evaluation programme for all existing food additives; 
• establishes a system for a review of all current additives authorisations for their 
compliance with the principles of the Re gulation (EC) No 1333/ 2008 by 20 January 2011 
and transfer of these provisions  in the Annex of this Regula tion. Until this transfer is 
completed, the Annexes to Directives 94/35/EC , 94/36/EC and 95/2/EC continue to apply. 
In addition, powers to adopt implementing meas ures were conferred to the Commission to 
amend the annexes to Directives 94/35/EC, 94/36/EC and 95/2/EC until the establishment 
of the Community list of food additives in  the Annex of Regulation (EC) No 1333/2008. 
Further simplification of the legal framework is ensured by  Regulation (EC) No 1331/2008 
which establishes an effective, expedient and transparent common authorisation procedure for 
food additives, food enzymes and food flavourings. 
14.4.12.2.  Legislative Changes Underway 
A number of implementing measures under Regulation (EC) 1333/2008 and Regulation (EC) 
No 1331/2008 are required. 
It is not yet possible to fully appreciate th e enforcement of Regulation (EC) No 1331/2008, as 
significant improvement is expected (in particul ar by food businesses) from the simplification 
of the authorisation proc edure for food additives. 
14.4.13.  Food enzymes 
14.4.13.1.  Current Situation 
Directive 89/107/EEC only covers enzymes used as food additives. The remaining enzymes 
were not regulated at all or were regulate d as processing aids unde r non harmonised national 
provisions, which were diverse.  Directive 95/2/EC on food addi tives other than colours and 
EN 316   EN sweeteners allows for the use of two enzymes as food additives: E 1103 Invertase and E1105 
Lysozyme. 
The new Regulation (EC) No 1332/2008 on food enzymes will harmonise for the first time 
the use of food enzymes, both as f ood additives and processing aids. 
The Community list of food enzymes which w ill be established under Regulation (EC) No 
1332/2008 and based on the safety assessment car ried out by the EFSA will be set up in a 
stepwise manner. The Commi ssion must adopt an implementing measure with modalities 
concerning the presentation and content of  the applications by December 2010. Then 
interested parties must submit within 24 months a pplications for the inclusion of an enzyme in 
the Community list. The establishment of the Community list will take place in a single step 
procedure after the EFSA has expressed opi nions on all products for which sufficient 
information has been submitted during the 24-month period. 
14.4.13.2.  Legislative Changes Underway 
Implementing measures to establish the modalities  concerning the presentation and content of 
the applications shall be adopted  by the Commission by 16 December 2010. 
14.4.13.3.  Evaluation 
Whilst it is not yet possible to fully apprec iate the enforcement of Regulation (EC) No 
1332/2008, significant improvements are expected (in particular by  food businesses) from the 
simplification of the legislative framework. 
14.4.14.  Food Flavourings 
14.4.14.1.  Current Situation 
The general framework for food flavourings in the European Community was established by 
Council Directive 88/388/EEC of  22 June 1988 on the approximation of the laws of the 
Member States relating to flavour ings for use in foodstuffs and to source materials for their 
production. This Directive lays dow n general requirements for safe  use of flavourings in food 
and provides definitions for differe nt types of flavourings. It al so establishes maximum levels 
for certain substances th at are naturally present in flavour ings and in food ingredients with 
flavouring properties, but which ma y raise concern for human health. 
Commission Directive 91/71/ EEC of 16 January 1991 co mpleting Council Directive 
88/388/EEC sets out labell ing rules on flavourings. 
It was necessary to update these Directives in the light of tec hnical and scientific 
developments. Therefore, the Commission proposed on 28 July 2006 a new Regulation on 
flavourings and certain food ingred ients with flavouring properties. 
The new Regulation (EC) No 1334/2008 on flavour ings and certain food ingredients with 
flavouring properties for use in and on foods  was adopted on 16 December 2008. It repeals 
Council Directive 88/388/EEC a nd Commission Directive 91/71/ EEC as from 20 January 
2011. 
Similar to the previous legisla tion, the Regulation lays down ge neral requirements for safe use 
of flavourings and provides defi nitions for different types of flavourings. The Regulation sets 
EN 317   EN out flavourings and source materials for which an evaluation and approval is required. The 
Regulation prohibits the addition of certain substances as such to food and lays down 
maximum levels for certain substances, which ar e naturally present in flavourings and in food 
ingredients with flavourings pr operties, but which may raise concern for human health. The 
Regulation also sets out the ru les for labelling of flavourings  from business to business and 
for sale to the final consumers. It also describes the specific requirements for use of the term "natural". 
Currently, Regulation (EC) No 2232/96 sets out the basic rule s for the use of flavouring 
substances in or on foodstuffs and lays do wn a procedure for th e establishment of a 
Community list of flavouring substances. The Regulation will become obsolete after the establishment, foreseen by the end of 2010 at the latest, of the Community  list provided for in 
Regulation (EC) No 1334/2008, when only those flavouring substances listed will be allowed 
to be added to foods. 
The European Parliament and the Council Regulation (EC) 2065/2003 on smoke flavourings 
used or intended for use in or on foods esta blishes a Community procedure for the safety 
assessment and the authorisation of smoke flavour ings in order to ensure a high level of 
protection of human health and pr otection of consumers' interests,  as well as to ensure fair 
trade practices. 
In addition, a separate Regulation (EC) No 1331/ 2008 establishes an effective, expedient and 
transparent common authorisation procedure for food additives, food enzymes and food 
flavourings. 
14.4.14.2.  Legislative Changes Underway 
The Community list on flavouring substances will be adopted by end 2010 and will form part 
of the Regulation (EC) No1334/2008. An implemen ting measure for guidance on applications 
for authorisations on flavourings 2008 will be elaborated under Regulation (EC) No 
1331/2008. 
A common methodology for monitori ng flavourings will be elaborated under Regulation (EC) 
No 1334/2008. 
The Community list on smoke fl avourings will be establishe d once the EFSA has published 
all the opinions on evaluated smoke fla vourings, possibly by end 2009/beginning 2010. 
14.4.14.3.  Evaluation 
The use of flavourings will be  fully harmonised with specifi c Community lists for certain 
categories of flavourings. 
14.4.15.  Food Contact Materials 
14.4.15.1.  Current Situation 
Regulation (EC) No 1935/2004 of the European Parliament and of the Council on materials 
and articles intended to come into contact with  food (FCM) sets out th e basic requirements for 
a harmonised European market on food contact materials, while ensuring a high level of 
protection of human health. This legal act empowers the Commission to set material specific rules in specific legislation. 
EN 318   EN Specific legislation exists for ceramic materials, regenerated cellulose film and plastic food 
contact materials. In 2008 specifi c legislation was adopted for recy cled plastic to be used in 
contact with food. Commission Regulation (EC)  No 282/2008 on recycled plastic materials 
and articles intended to come in to contact with foods  introduces a harmonised procedure for 
risk assessment and authorisation of recycling processes used to  manufacture recycled plastic 
for food contact. It sets out requirements for the quality assurance systems to be established in 
companies using authorised recycling processe s. It requires that recycled plastics are 
accompanied by a detailed declaration of complia nce. The regulation thus harmonises in the 
EU the criteria for placing on the market  recycled plastic for food contact. 
14.4.15.2.  Legislative Changes Underway 
New developments in food packaging technology cover also the use of packaging materials 
that can interact with the f ood by absorbing or releasing subs tances or that monitor the 
conditions of the packaged food. These material s are called active or in telligent food contact 
materials. Basic rules for these materials ar e set out in the framework Regulation for food 
contact materials. However, specific rules including establishing a list of authorised substances are to be set out in  a specific Commission Regulation.  
Harmonisation of legislation for plastic food c ontact materials starte d in 1980 and led to a 
series of 13 Directives setting out a list of auth orised substances, limits for the substances in 
food and testing regimes. Simplif ication and rationalisation of th is legislation dispersed over 
several Directives will be achieved by the adoption of a Commission Regulation, foreseen in 
2010. This Regulation will speed up authorisation of new substances and to simplify rules on 
migration testing. 
14.4.15.3.  Evaluation 
While the harmonisation of legislation on plastic food contact materials at Community level is 
nearly complete, only the basic principles are set out for other materials such as paper and 
board, printing inks, adhesives. In the future  it needs to be analysed to what extent 
harmonisation at Community level of other materials would be necessary. 
14.4.16.  Plant Protection Products – Pesticide Residues 
The yield of agricultural and horticultural crops can be severely reduced as a result of 
infestation by pests and diseases . In order to protect crops be fore and after harvest, plant 
protection products (or pe sticides) are used. S uch pesticides could have severe undesirable 
effects  if they are not strictly regulated. 
The legislation in this area regulates the plac ing on the market and use of plant protection 
products (Directive 91/414/EEC) and the maximum re sidue levels (MRLs) of pesticides that 
can be found in or on food and f eed (Regulation (EC) No 396/2005). 
Prior to Regulation (EC) No 396/2005, the legi slation was too complex as it combined 
harmonised EU
421 and divergent national rules. This s ituation led to confusion about which 
MRL was applicable. It made the life of trad ers and importers difficult and gave rise to 
                                                 
421 The previous European legislation set different levels for different kinds of product: some fruit and 
vegetables (Directive 76/895/EEC), cereals (Direc tive 86/362/EEC), foodstuffs of animal origin 
(Directive 86/363/EEC) and plant products, including fruit and vegetables (Directive 90/642/EEC). 
EN 319   EN questions from consumers, particularly in cases where food exceeding the defined MRL in 
one Member State was acceptable in other Member States. 
Regulation (EC) No 396/2005 covers approximat ely 1100 pesticides currently or formerly 
used in agriculture in or outside the EU. It lists limits for 315 agricu ltural products. These 
limits also apply to processed products, adjusted  to take account of dilution or concentration 
during processing. The new rules ta ke into consideration the sa fety of all consumer groups. 
This includes, for example, babies, children and vegetarians. EFSA is responsible for the 
safety assessment, which is based on the proper ties of the pesticide, on the maximum levels 
expected on food and on the different  diets of European consumers. 
The evaluation, marketing and use of plant protection products in the Community are 
regulated under Council Directiv e 91/414/EEC. This Directive la ys out a comprehensive risk 
assessment and authorisation procedure for activ e substances and products containing these 
substances. Each active substance has to be proven safe in te rms of human health, including 
residues in the food chain, animal health and the environment, in  order to be allowed to be 
marketed. It is the responsibility of industry to  provide the data showing that a substance can 
be used safely with respect to human health and the environment. 
In accordance with Article 8 of Directive 91/414/EEC concerning the placing of plant 
protection products on the market, the Commissi on has to assess within  a certain timeframe 
the active substances contained in plant protec tion products that were already on the market 
on the date of the applica tion of that Directive. 
In 1992, the Commission launched an ambitious  review programme. Regulation (EEC) No 
3600/92 laid down detailed rules fo r the first stage of that programme. The procedures for the 
three further stages of the programme were  established in 2000 (Regulation (EC) No 
451/2000), 2002 (Regulation (EC) No 1490/2002)  and in 2004 (Regulation No 2229/2004). 
The rules laid down in those Regulations provide that persons or companies wishing to secure 
the inclusion of active substances in the pos itive list of Annex I of Directive 91/414/EEC 
submit by a certain date a dossier meeting the requirements of the Di rective in order to 
demonstrate that it may be expected that plant protection products containing those active 
substances are sufficiently safe for human or animal health or for the environment. 
The Commission finalised the review programme  of existing pesticides in March 2009. The 
review has led to the removal from the market of pesticides which cannot be used safely. Of 
some 1 000 active substances on the market in at least one Member St ate before 1993, 26 %, 
corresponding to about 250 substances, have passed the harmonised EU safety assessment. The majority of substances (67%) have been eliminated because dossi ers were either not 
submitted, incomplete or withdrawn by industry. 
About 70 substances failed the review and have  been removed from the market, because the 
evaluation carried out did not show safe us e with respect to human health and the 
environment. In order to obtain that the pl ant protection products containing those active 
substances can remain on the market, certain co mpanies that notified the dossiers, are seeking 
the annulment by the Court of those Commi ssion decisions by invoking errors during the 
assessment or with regard to the procedural rules. 
EN 320   EN 14.4.16.1.  Legislative Changes Underway 
After an intensive consultation of stakehol ders, the Commission proposed on 12 July 2006 a 
Regulation concerning the placing  of plant protection products  that will replace Directive 
91/414/EEC. The draft Regulation c ontains measures for shorte r and clearer authorisation 
criteria, streamlined procedures, simplified data protection rules, provisions for the 
substitution of active substances with safe r alternatives and a re duction in testing on 
vertebrate animals. 
14.4.16.2.  Evaluation 
The Commission received only a few complaints on the bad application by the Member States 
of Directive 91/414/EEC. Most conc ern issues relating to the provi sions on data protection. In 
one of those cases an infringeme nt procedure is ongoing. It has to  be stressed that in this 
policy area numerous guidance documents and strong cooperation between Member States 
and the Commission through expert groups cont ribute to a correct application of the 
Community legislation. 
14.4.17.  Contaminants in food 
14.4.17.1.  Current situation 
The EU harmonisation of legisla tion on contaminants in food fulf ils two essential objectives: 
the protection of public hea lth and the removal of internal barriers to trade. 
Council Regulation (EEC) No 315/93 of 8 February 1993, laying down community 
procedures for contaminants in food, is the framework for the Community action on 
contaminants. 
The Regulation provides that: 
• Food containing a contaminant in an amount wh ich is unacceptable from the public health 
viewpoint shall not be placed on the market; 
• Contaminant levels shall be kept as low as can reasonably be achieved by following good 
practices at all stages of the production chain; 
• In order to protect public health, maximum levels for specific contaminants shall be 
established where necessary (by comitology); and 
• The consultation of EFSA for all provisions which may have an effect upon public health 
is mandatory. 
Based on this framework Regulation, maximum le vels for the following specific contaminants 
in foodstuffs have been established by Commission Regulation (EC) No 1881/2006 of 19 
December 2006: 
• Nitrate; 
• Aflatoxins, ochratoxin A, Fusarium -toxins, and patulin (mycotoxins); 
• Lead, cadmium, mercury (heavy metals); 
EN 321   EN • Dioxins and PCBs; 
• 3-MCPD; 
• Inorganic tin; 
• Benzo(a)pyrene (as marker subs tance for the group of PAH). 
In addition, several Regulations have been adopted containing provisions as regards the 
sampling and methods of analysis to be used fo r official control of the compliance with the 
maximum levels established on contaminants, in  order to ensure a harmonised enforcement 
approach: 
• Commission Regulation (EC)  No 1882/2006 of 19 December 2006 laying down methods 
of sampling and analysis for the official cont rol of the levels of nitrates in certain 
foodstuffs; 
• Commission Regulation (EC)  No 1883/2006 of 19 December 2006 laying down methods 
of sampling and analysis for th e official control of the leve ls of dioxins and dioxin-like 
PCBs in certain foodstuffs; 
• Commission Regulation (EC) No 401/2006 of 23 February 2006 laying down methods of 
sampling and analysis for the official control of the levels of mycotoxins in foodstuffs; 
• Commission Regulation (EC) No 333/2007 of  28 March 2007 laying down methods of 
sampling and analysis for the official control of the levels of lead, cadmium, mercury, 
inorganic tin, 3-MCPD and benzo(a)pyrene in foodstuffs. 
In response to frequent findings of high levels of aflatoxins in some products originating from 
some third countries, specific measures have  been introduced by Commission Decision 
Commission Decision 2006/504/EC of 12 July 2006 on special conditions governing certain 
foodstuffs imported from certain third countries due to contamin ation risks of these products 
by aflatoxins, imposing special conditions on the import of pistachios from Iran, peanuts from 
Egypt and China, hazelnuts, dr ied figs and pistachios from Tu rkey, Brazil nuts in shell and 
peanuts from Brazil and almonds from the United States. 
Furthermore Commission Decision 2008/352/EC of 29 April 2008 imposes special conditions 
governing guar gum originating in or consigne d from India due to contamination risks of 
those products by pentachl orophenol and dioxins. 
In 2008 the following legisl ative acts were adopted: 
• Commission Regulation (EC) No 565/2008 amending Regulation (EC) 1881/2006: 
establishment of a maximum level fo r dioxins and PCBs in fish liver; 
• Commission Regulation (EC) No 629/2008 amending Regulation (EC) 1881/2006: 
amendment to maximum level for lead in mushrooms, for cadmium in mushrooms and 
certain fish species and mercury in certain fish species and establishment of a maximum 
level for lead, cadmium and mercury in food supplements. 
Two important safeguards were adopted in 2008 to counter risks posed by food 
contamination: 
EN 322   EN • Commission Decision 2008/433/EC of 10 J une 2008 imposing special conditions 
governing the import of sunflower oil originat ing in or consigned from Ukraine due to 
contamination risks by mineral oil; and  
• Commission Decision 2008/798/EC  of 14 October 2008 imposing special conditions 
governing the import of products containing m ilk or milk products originating in or 
consigned from China as ame nded by Decision 2008/921/EC.  
14.4.17.2.  Legislative Changes Underway 
Initiatives for possible changes to the contaminant legislation include the development of 
proposals to limit the presence in food of othe r contaminants (T-2 toxin, HT-2 toxin and 
PCBs) and to review some existing provisions (aflatoxins, ochratoxin A, heavy metals, 
polycyclic aromatic hydrocarbons (PAHs) and dioxins). 
The presence of acrylamide in food is under c ontinual close scrutiny, pe nding availability of 
further scientific inform ation and new monitoring. 
Data is being collected on a number of othe r contaminants, such as brominated flame 
retardants (polybrominated diphe nyl ethers (PBDE’s), …), acry lamide, furan, perfluorooctane 
sulfonates/acids (PFOS/A). 
In the contaminants area new and emerging risks are difficult to predict, but require 
continuous attention to protect public health. 
14.4.17.3.  Evaluation 
Much attention is paid to the effective a nd uniform enforcement of the legislation on 
contaminants and of related safeguard Decisi ons. Consideration is given to enforcement 
issues from the very first stages of the di scussions on new measures , in order to ensure 
optimal uniform enforcement across the EU. 
Enforcement issues are discussed in the St anding Committee on the Food Chain and Animal 
Health and in relevant expert groups thereof.  These discussions result in some cases in 
guidance documents for the cont rol of the legislation, publicly  available and published on the 
Commission services web pages: 
• Guidance document for competent authorities for the control of compliance with EU 
legislation on aflatoxins422; 
• Guidelines for the enforcement of provisions on dioxins in the event of non-compliance 
with the maximum levels for dioxins in food423; 
• Guidance on sampling of whole fishes  of different size and/or weight424; 
• Guidance for the application of the Decisi on 2008/433/EC on sunflower oil from Ukraine 
contaminated with mineral oil425; 
                                                 
422 http://ec.europa.eu/food/food/chemicalsafe ty/contaminants/afla toxin_guidance0309_en.pdf ; 
423 http://ec.europa.eu/food/food/chemicalsafe ty/contaminants/guide lines-july_2004_en.pdf;  
424 http://ec.europa.eu/food/food/chemi calsafety/contaminants/ guidance-sampling%20-whol e-fish-with%20exemples-  
dec2006.pdf  
EN 323   EN • Report on the relationship between  analytical results, measurement uncertainty, recovery 
factors and the provisions of EU  food and feed legisl ation, with particul ar reference to the 
contaminants legislation426. 
14.4.18.  Animal Health - Zoonoses 
Zoonoses are diseases and infections that can be  transmitted from animals to humans, directly 
or, in particular, through food (e.g. Salmonella  in eggs, Listeria in cheeses etc.) The 
monitoring of zoonoses along the entire food chain and in humans is necessary to assess 
related risks. Zoonoses, in particular at the level of primary production, must be adequately 
controlled. 
The main pieces of legislation relating to zoonoses are: 
• Directive 2003/99/EC of the European Parliame nt and of the Council on the monitoring of 
zoonoses and zoonotic agents, amending C ouncil Decision 90/424/EEC and repealing 
Council Directive 92/117/EEC. The latter Directive aims to obtain comparable data to 
evaluate related risks. The monitoring of eight zoonoses is mandatory, whereas other 
zoonoses should be monitored according to the epidemiological situation in each Member 
State. Monitoring of antimicrobial resistance and investigation of f ood-borne outbreaks are 
also required by the Directive; and 
• Regulation (EC) No 2160/2003 of  the European Parliament and of the Council on the 
control of salmonella and other specified f ood-borne zoonotic agents. This Regulation 
prescribes that controls on zoonoses should co ver the whole food chain. Its primary aim is 
to ensure that effective measures ar e taken to decrease the occurrence of Salmonella  
serotypes of significance for publ ic health progressively, in di fferent categories of poultry 
and pigs. 
Member States or regions may be granted spec ial guarantees for Salmon ella at the placing on 
their market of foodstuffs of animal origin, si milar to the ones granted to Finland and Sweden 
at their accession, if  they have a control progra mme recognised as equivalent427 Such a 
request was put forward by Denmark. Before an alysing the equivalen ce, it was considered 
opportune to agree on the minimum requirements for submission and this was laid down in a 
Commission Guidance Document428. The Danish control programm es were then considered 
equivalent as regards table eggs but not as regards broiler meat because the prevalence of 
Salmonella in flocks of broilers was still too high. Nevertheless, a qualified majority within 
the Standing Committee was not reached on  a Commission proposal to grant special 
guarantees to Denmark as regards table eggs because a number of Member States oppose the 
principle of extendi ng special guarantees. 
14.4.18.1.  Legislative Changes Underway 
A Community target for the redu ction of Salmonella should have  been set by the end of 2008, 
subject to a cost/benefit analysis. Obtaining the necessary elements for completing such an 
                                                                                                                                                         
425 http://ec.europa.eu/food/committees/regulatory/scfcah/toxic/summary20062008_en.pdf  
426 http://ec.europa.eu/food/food/chemicalsafety /contaminants/report-sa mpling_analysis_2004_en.pdf   
427 Article 8 of Regulation (EC) 853/2004 of the European Parliament and of the Council, OJ L 226, 
25.6.2004, p.22; 
428 SANCO/745/2008r6(http://ec.europa.eu/food/food/biosafe ty/salmonella/docs/guidan ce_document_swe_fin_en.pdf )  
EN 324   EN analysis proved to be difficult. An external contractor will be proc ured for the purpose of 
carrying this through. A Communication from the Commission is being prepared to inform 
the Parliament and the Council on these difficulties and the delay. 
14.4.18.2.  Evaluation 
With the adoption of Directive 2003/99/EC the system has been considerably improved, in 
particular with regard to the comparability of  data, and extended to cover additional zoonoses 
on a mandatory basis and certain important as pects such as antimicrobial resistance and 
foodborne outbreaks. 
14.4.19.  Transmissible Spongiform Encephalopathies 
Regulation (EC) No 999/2001 of the European Pa rliament and of the Council lays down rules 
for the prevention, control and eradicati on of certain transmissible spongiform 
encephalopathies (TSEs). 
The Community has made great strides in  its battle against bovine spongiform 
encephalopathy (BSE). The consistent declin e in the number of BSE/TSE incidents bears 
witness to the effectiveness of strong, compre hensive Community measures put in place to 
combat this disease. The Co mmission has at no point stopped monitoring or reacting to the 
challenge of BSE. As a result, c onsumers' confidence has increased. 
In the light of the reduction of BSE cases, ne w developments in scie nce, and in accordance 
with the TSE Roadmap, new measures have been adopted to target surveillance and 
eradication schemes better, revi se the list of specified risk materials and set import rules 
linked to the BSE risk status of countries. 
In light of this positive trend, and new de velopments in science and technology, the TSE 
Roadmap considers possible amendments to ce rtain BSE measures currently in place while 
still making food safety and consumer protecti on the highest priority. Any adaptations made 
to the BSE measures, however, will not affect in any way the fundament al objectives of TSE 
eradication and the protection of the EU citizens. These have always been and will continue to 
be the main considerations of EU policy making in this area. 
14.4.19.1.  Legislative Changes Underway 
In relation to the legislation applicable to TSE,  priority is being given to the review of the 
provisions related to the total feed ban and er adication measures in small ruminants on the 
basis of evolving science. 
14.4.19.2.  Evaluation 
As regards TSE in particular, efforts focus on the need to adjust existing measures to new 
scientific findings and thus to risk. 
EN 325   EN 14.4.20.  Animal Health – Non Zoonotic Diseases 
14.4.20.1.  Current Situation 
Animal health is an important factor for a functioning agriculture  and the safe supply of food. 
It has been part of the Community acquis fr om the very beginning of the Community and 
legislation in force dates back to the 1960s. 
Animal health legislation has been adapted over the years, in order to accommodate new 
diseases such as BSE or changes in the spread of existing diseases such as avian influenza. 
Outbreaks of e.g. classical swine fever and foot  and mouth disease have triggered adoption of 
specific legislation. 
The result is a body of law of over 60 acts (m ostly Directives) laying down horizontal and 
vertical principles for intra Community trade, imports of an imals and their products, health 
and movement controls (veterinary checks), the notification of diseases  and financial support. 
Formal complaint cases in this area are few. Most  refer to isolated cases of alleged incorrect 
implementation at local level which cannot be so lved by the Community in stitutions but have 
to be dealt with in national courts. 
Nevertheless, requests for interpretation and the difficulties arising from the complexities and 
inconsistencies have shown th at this framework does not comply with more modern 
requirements for transparency and flexibilit y. Thus in 2007 the Commission presented its 
plans to improve the situation th rough a New Animal Health Strategy429. This triggered a 
broad consultation involving stak eholders, trade partners and institutions. As a result, a 
Communication on an Animal Health Action Plan430 was published, listing all actions 
considered necessary for a new approach on anim al health. The most important action is the 
work preparing a proposal on a new animal health law. 
Disease Situation 
Against this background the chal lenge to address acute animal health concerns effectively 
remains. Animal health is under consistent threat of outbreaks with in the Community, in 
neighbouring countries or on the territory of trade partners. 
Diseases such as classical swine fever and foot and mouth disease, which cause heavy 
economic losses, are constantly at our gates. The necessary implementation of tough measures 
often results in unpleasant portr ayals by the press. Modified ag ricultural practi ces increase the 
importance of fish diseases and tuberculoses. Changes in the envi ronment foster the spread of 
bluetongue. 
Bluetongue is a viral disease transmitted by spec ific midges among ruminants (cattle, sheep, 
goats) and is difficult to preven t and control. It causes consider able losses to stock farmers. 
The midges spread within a favourable environm ent and recently to more northern parts of 
Europe with new serotypes a nd large scale epidemics. This  suggests its link to climate 
change. 
                                                 
429 COM(2007)539final. 
430 COM(2008)545final. 
EN 326   EN The threat of a pandemic through the spread of an avian influen za virus is still present though 
currently we observe only isolated cases. 
14.4.20.2.  Work done in 2008 
The European Commission adopted a Communicat ion laying down the Action Plan for the 
implementation of the EU's animal health strategy. The Action Plan contains an overview and summary of the key actions. A programming docum ent was agreed. It contains all the actions 
and their relevant details, such as milestones,  marking important steps within the actions, 
organisations involved and indica tive dates for the completion of actions. The plan is updated 
regularly to enable any intere sted person, organisation or othe r parties to follow the progress 
of the different activities. 
Given the devastating impact that  serious disease outbreaks can have on farmers, society and 
the economy, the new strategy is based on the princi ple that “prevention is  better than cure”. 
The aim is to put greater focus on precautionary measures, disease surveillance, controls and 
research, in order to reduce th e incidence of animal disease and minimise the impact of 
outbreaks when they do occur. 
We have taken a collaborative approach, maintain ing effective partnerships at all levels. An 
Animal Health Advisory Committee involving all stakeholders has been created and is 
expected to follow the Animal Health Strategy's progress. It is to be consulted on all impact 
assessments and will advise the Commission on the best means of delivering agreed 
outcomes. The Committee may also provide stra tegic guidance on the a ppropriate level of 
animal or public health protection, and on priorities for action and communication. 
Disease Situation 
The disease status in and outside the Communit y, modified agricultural practices or changes 
in the environment such as clim ate change may call for the adaptation of legislation before the 
result of the complete overhaul becomes effectiv e. Here the already agr eed general principles 
of the Animals Health Strategy, such as  the emphasis on preventive measures, are 
implemented. 
Successful disease control not only relies on an adequate le gal framework but also on its 
consequent implementation. In 2008 Member States have responde d to outbreaks, in 
particular, of avian influenza, in a swift and successful manner, by applying the provisions of 
Council Directive 2005/94/EC on the c ontrol of avian influenza. N one of the outbreaks had an 
impact on public health or major economic losses. 
Nevertheless, if Member States fail to transpos e respective legislation, such as Italy in the 
case of Council Directive 2005/94/EC, the Comm ission will use its powers under Article 226 
of the Treaty. 
The control of the spread of bluetongue rema ins difficult. The rules of Council Directive 
2000/75/EC on bluetongue control a nd eradication appear to be not  fully sufficient. By means 
of implementing rules laid down in Commission Regulation (EC) No 1266/2007, the Commission has, however, used th e elements of flexibility of Directive 2000/75/EC to better 
respond to the problem and this has brought sa tisfactory results, decreasing the number of 
bluetongue outbreaks in 2008 sign ificantly (~ 58000 outbreaks in 2007 to ~ 24000 outbreaks 
in 2008). 
EN 327   EN 14.4.20.3.  Evaluation 
Considering the above, animal health is currentl y in a phase of reform. The entire system is 
being assessed to identify opportunities of enhanc ing efficiency. At the same time we have to 
keep the existing firewall against disease out breaks in good shape. In 2008, as shown above, 
we have been successful. 
For animal health the action plan envisages measur es over the next five years. It is based on 
the results of an extensive evaluation a nd a large consultati on of stakeholders. 
Following a comprehensive evaluation of EU legi slation on the animal health of aquaculture 
animals, this legislation has been updated. Council Directive 2006/88/EC on aquatic animal health takes better account of the diversity of European a quaculture and the significant 
development of the industry over the last de cades (e.g. more farmed species). Implementing 
decisions and guidelines on the risk based animal  health surveillance sc hemes were adopted to 
ensure a harmonised implementation of the Directive. By May 2008, it became apparent that Austria, Belgium, Greece, Poland, Portugal, Sweden and the United Kingdom have failed to implement the Directive in time. 
The problem of bluetongue needs further reflection and the Commission launched a 
discussion with the Member States on the need to revi se Directive 2000/75/EC. This 
reflection might lead to ne w Community rules on bluetongue in the next years. 
Priorities 
The combat of disease outbreak is the first pr iority dictated by the circumstances. The second 
priority will be the further de velopment of the Animal Health Strategy as a long term goal. 
Planned action 
The new Animal Health Strategy provides gene ral guidance for the conversion of animal 
health legislation in the coming years. Wh ile all parties involved agree on the general 
strategy, the challenge is  now to mould insights into a new legal framework. To this end areas 
for more specific impact assessment studies have  been identified and specific working groups 
comprising all stakeholders have been establis hed. Given the devastating impact that serious 
disease outbreaks can have on farmers, societ y and the economy, the new legislation does not 
only have the objective of increased transparen cy and simplification, but also pursues the 
principle that “prevention is  better than cure”. The aim is to put greater focus on 
precautionary measures, disease surveillance, c ontrols and research, in order to reduce the 
incidence of animal disease and minimise the impact of outbreaks when they do occur. The 
legislation also intends to improve the interfac es of issues inextricably linked to animal 
health, such as public health, food safety, an imal welfare, sustainable development and 
research. 
In 2009, SANCO will start a fundame ntal reflection process on effective measures to combat 
bluetongue within the Community. 
A guidance document will be drafted to give co mpetent authorities, third countries, business 
operators, exporters and importers of aquacultu re animals an introduction to the placing on 
the market and import rules of the Di rective and implementing legislation. 
EN 328   EN The FVO will continue to monitor the implemen tation within the Member States. Failure to 
implement agreed legislation will be pursued  with the powers provid ed under Article 226 of 
the Treaty, taking the principle of  proportionality into account. 
14.4.20.4.  Summary of Sector 
This sector with a long common regulatory tr adition faces major overhaul. The goal is to 
consolidate a long term and largely successful and profound collaboration in a more modern 
system by integrating tried and tested methods  within an improved framework. The challenge 
to swiftly and effectively react to epidemics will remain. 
14.4.21.  Veterinary Import Controls – Live animals and their products 
The present system of border veterinary checks has generally worked well during 2008. The 
current Directives require Member States to en sure that no consignments from third countries 
are introduced into the territory of the EU without undergoi ng mandatory veterinary checks at 
designated Border Inspection Posts. These ch ecks include 100% documentary, identity and 
physical checks on all live anim als and animal products. Moreover for animal products a 
random programme of analytical la boratory checks is applied and the level of these checks is 
reduced to specified levels dependent on the an imal and public health status of the exporting 
country. Additional specific safeguard or re inforced measures may be taken by the 
Commission when serious or repe ated deficiencies are identif ied (i.e. results of a mission 
carried out by the FVO) or in  cases of outbreaks of major foodborne diseases in a third 
country. 
However, it has been recognised that there is scope to improve the controls and a need to 
update the legislation on border security of imports and tran sits of animals and animal 
products so that it becomes more  coherent with othe r EU legislation. One of the conclusions 
of the Commission's new Animal Health Strategy431 is for the development of a policy and 
framework designed to deliver a better risk base d approach to veterinary border inspections 
and to target illegal trade. To assist in ach ieving this goal the Comm ission in 2008 launched a 
review of the current EU vete rinary border import control legi slation covering live animals 
and their products, including an information ga thering exercise seeking the views of all 
Member States. 
During 2008 a Council CVO432 Working Group considered the issue of improved border 
security including imports of animals and th eir products and produced  a guidance paper for 
assistance and consideration of the Commission. In addition a paper on a strategy for imports 
of all food products, including animals and produc ts of animal origin, was prepared by the 
French Presidency. This paper informed a se ries of discussions in the Council and a 
conference under the French Presidency in Pa ris on 3 October 2008, l eading in turn to 
conclusions adopted at the Agriculture Council in December 2008, following on from discussions at the June Counc il. The Commission services pr epared a paper on the current 
status and future proposals for imports of food products into the EU. The Economic and 
Social Committee also adopted a paper on imports in November 2008. These papers have been discussed at various attaches and CVO/CPO
433 meetings. 
                                                 
431 COM(2007)539final. 
432 Chief Veterinary Officers (CVO). 
433 Chief Phytosanitary Officers (CPO). 
EN 329   EN The results of the above are being considered  by the Commission with a view to proposing 
legislation to simplify and clarify existing bord er veterinary import controls legislation and 
provide a framework for a more harmonised appr oach of application and enforcement by the 
Member States. The legislation would also prov ide a more coherent relationship with other 
EU legislation on import controls. A series of co nsultations has taken pl ace with stakeholders 
in the framework of the Animal Health Advi sory Committee and a wi de public stakeholder 
consultation is envisaged in late 2009/10. 
The main problems identified with the curren t legislative framework are the following: 
• The current programme of check s is random and does not addre ss identified risk areas, nor 
makes best use of existing risk assessment tool s. The EU is the biggest importer of food 
products in the world and this trend is set to  increase in the coming years, including in the 
area of products of animal or igin. The volume and diversity of  trade has also grown very 
substantially, increasing the poten tial level of risk. The EC has also enlarged substantially 
from 15 to 27 Member States, leading to a greatly increased land border with third 
countries with increased risks. New technolog ies are also under-utilised in considering 
controls and assessing risk. This increase needs to  be reflected in how we evaluate the risk 
of products entering the EU. 
• Lack of clarity and common approach to enfo rcement amongst Member States as regards 
certain rules and procedures especially as regards supervision of transit consignments, 
transhipment, pre-notification of consignments, approval and supervision of free and 
customs warehouses, approval and supervision of  ship suppliers, re-enforced checks, re-
import of consignments, definition of consignments. 
• The system does not take into account latest developments in EU f ood legislation covering 
imports as well as new technological developments (and especially TRACES and electronic identification). 
• Need to ensure adequate subsidiarity/fle xibility for Member States to operate. 
14.4.22.  Animal feed and animal by-products 
Animal feed and animal by-products (e.g. animal carcasses of dead animals or products of 
animal origin that are not intended for human c onsumption) are strictly regulated because of 
the potential negative impact which their use may have for the safety. Seve ral of the past food 
crises were related to feed (e.g. dioxin cont ent) or the use of animal by-product (bovine 
spongiform encephalitis – BSE). 
14.4.22.1.  Feed marketing 
Current Position 
Currently, the general rules for the marketing of  feed are spread over several Directives 
according to the type of feed concerned: 
• Directive 79/373/EEC with the rules for th e circulation of compound in the EU (e.g. 
labelling requirements). It  also covers pet food; 
• Directive 93/74/EEC contains the principle rule s for feeding stuffs intended for particular 
nutritional purposes (“ dietetic feeds”); 
EN 330   EN • Directive 96/25/EC on general ru les for the circulation and us e of feed materials; and  
• Directive 82/471/EEC lays dow n the marketing conditions for certain products, belonging 
to the category feed materials, used  in animal nutriti on (“bio-proteins”). 
Apart from these Directives further specific legislation is applicab le, e.g. TSE-Regulation 
(EC) No 999/2001, containing the ban to feed m eat and bone meal to food producing animals, 
the Regulation (EC) No 1829/2003 on GM Food and Feed, setting the rules for the use of 
genetically modified feed, the Feed Hygi ene Regulation (EC) No  183/2005, focussing on 
assuring safety during the pr oduction process of feed. 
Report on Work Done in 2008 
Feed Marketing In 2008 the Commission adopted a proposal for a Regulation on the placing on the market and 
use of feed
434. It intends to replace the legislation on  marketing and use of feed, both for farm 
animals and pets and will thus simplify exis ting legislation. It will also improve the 
information requirement in order to increase tr ansparency for farmers and pet owners, foster 
innovation and competitiveness, reduce the administrative burde n for the stakeholders and 
develop the single market of feed. 
This new Regulation closes gaps in the fe ed safety system concerning emerging feed 
materials, prohibited substances in feed. It clarifies borderli nes between different types of 
feed and introduces rules on misleading advert ising and proper consumer information. The 
new rules will increase feed safe ty, clarify the current rules on feed marketing. It reduces 
administrative burden for stakeholders and is likely to enter into force in 2009. 
Feed additives, contaminants and undesired substances 
In 2008 30 requests for the authorisation of feed additives (mostly zootec hnical or nutritional 
additives) were processed. The authorised addi tives improve both welfare and productivity of 
food producing animals. Confiden tiality concerning data supporting authorisations has been 
granted in several cases. 
Maximum levels of certain contaminants in fe ed have been reviewed  (Directive 2002/32/EC). 
Levels for unavoidable carry over of from one  feed product to the other during production 
have been set (Coccidiostats). 
The contamination of milk and soy products in  China with melamine has triggered import 
related safeguard measures. 
Evaluation 
The current rules on animal feed  are scattered over several Di rectives and some 50 amending 
or implementing acts. The medicated feed Dir ective 90/167/EEC is not in line with the 
Veterinary Medicines Code (D irective 2001/82/EC) and the ne w feed hygiene legislation. 
Existing legislation extremely relies on many cross references. Uniform application is 
hampered. Hence, only 2.6% of the compound feed  produced in Member States is traded on 
                                                 
434 COM(2008)124final. 
EN 331   EN the Internal Market. This appears to be the result of the asymmetrical transposition of 
Directives. For example, the different transposit ion of two Member States  resulted in different 
permitted levels for vitamin D3 in complementary feed. 
Planned Action 
Directive 90/167/EEC on medicated feed will be recast and modernis ed in order to be adapted 
to the new existing Community law concerning f eed but also veterinary medicinal products: 
impact assessment is to be launched. 
Implementing rules for the new "feed marketing" Regulation need to be prepared. 
14.4.22.2.  Feed hygiene 
Current position 
Regulation (EC) No 183/2005 of the European Parliament and of the Council lays down 
minimum requirements for feed hygiene which apply from primary production of feed (at 
farm level), through production, processing and distribution, to the point of feeding the 
animals. 
The responsibility for compliance with these requ irements rests with feed business operators, 
although the adequacy of the measures put in pl ace by these operators mu st be verified by the 
competent authorities of the Member States before  an establishment is ap proved as part of the 
feed chain. In most cases this must be done by  an on-the-spot visit. There are two resulting 
priorities, firstly strengthening the approval conditions for estab lishments using direct heating 
process for drying and secondly defini ng microbiological criteria for feed. 
The development, dissemination and use of both national and Community guides to good 
practice are encouraged. However, these guide s may only be used on a voluntary basis by the 
feed business operators. Three Community guides have already been developed435. One of 
these three guides (inclusion of  medicated feed) has been modified and is under evaluation. 
Two more guides are under preparati on and will be submitted to evaluation. 
The Commission is also considering strengtheni ng the approval conditions for establishments 
using direct heating process for drying in order to avoid incide nts that occurred in the past. 
Evaluation 
The Member States have greatly promoted the development of national guides. The 
participation of the competent authorities differs  from one Member State to another, but in 
general, guidelines for developing such guides,  practical advice and guidance have been given 
by the competent authorities to food sectors. Most private stakeholde rs' organisations have 
expressed a positive attitude to national guides to good practice. 
14.4.22.3.  Feed Labelling 
Current position 
                                                 
435 http://ec.europa.eu/food/food/animalnutrition/feedhygiene/guide_goodpractice_en.htm . 
EN 332   EN Council Directive 96/25/EC on the ci rculation and use of feed ma terials, amending Directives 
70/524/EEC, 74/63/EEC, 82/471/EEC and 93/74/EEC and repealing Directive 77/101/EEC 
sets out harmonised rules for the marketing and labelling of feed materials. Feed materials 
may only be put on the market if they are soun d, genuine and of merchantable quality. They 
must not represent any danger to human or animal  health or to the envi ronment. The Annex to 
Directive provides a non-exhaustive  list of the feed materials that need to be identified on the 
label. 
Legislative Changes Underway 
Following approximately five years of prepar atory work and based on intense consultation 
with all stakeholders and Member Stat es, the Commission a dopted on 3 March 2008 a 
proposal for a Regulation of the European Parl iament and of the Counc il on the placing on the 
market and use of feed436. This proposed Regulation considerably simplifies the existing 
procedures for labelling and marketing anim al feed and pet food, while making the overall 
system more efficient and maintaining the same  high level of protection of animal health, 
animal welfare and public health . Industry should also benefit fr om the proposed new rules, as 
they set up a clearer, more harmonised legislat ive framework for food labelling and create a 
level playing field for all operators. 
Evaluation 
The new feed labelling legislation simplifies greatly the current legislation scattered over 
more than 5 acts, maintaining however the high level of feed and food safety and the 
protection of animal health. The new legislatio n strikes the right bala nce between consumer 
protection and information and intellectual prop erty rights, and removes the administrative 
burden of pre-marketing authorisation of proteins  used in feed. This legislation facilitates 
innovation and competitiveness for the feed business. 
14.4.22.4.  Animal by-products 
Current Position 
Animal by-products not intended for human cons umption include slaughterhouse waste, fallen 
stock and dairy products going to animal feed, as well as a variety of other products for 
different applications. The health rules for th ose animal by-products ar e currently laid down 
in Regulation (EC) No 1774/2002 and a number  of implementing Comitology measures. The 
Regulation relies on a risk-based categorisation of animal by-products, which determines the 
options for their use and obligations for their di sposal. Experience with the application of the 
Regulation since 2003 revealed that  the interaction with  other Community le gislation, its risk-
benefit ratio, and the proportionality of the prescr ibed measures in particular as regards their 
use for technical applications, posed problems and needed to be reviewed. 
Currently 7 complaint cases concerning animal  by-products are open. These were either 
triggered by unsatisfactory results of inspection by the FVO or complaints of stakeholders that 
considered their products not adequately classified. 
Report on Work Done in 2008 
                                                 
436 COM(2008)124final. 
EN 333   EN Current legislation builds on the risk-based categorisation of animal by-products, which 
determines the obligations to dispose of an d the options to use those materials. The 
Regulation has been applied since 2003. Experien ce shows that interfa ces with Community 
legislation need to be clarified and that the pr oportionality of certain measures needs to be 
reviewed. The latter is especially valid fo r the potential use of animal by-products for 
technical applications. As a consequence, the Commission a dopted a proposal for a revised 
Regulation on animal by-products437. 
Evaluation 
The Regulation on animal by-products has been  applied since 2003. Expe rience shows that 
interfaces with Community legisl ation need to be clarified a nd that the proportionality of 
certain measures needs to be reviewed. The latter is especially valid for the potential use of animal by-products for technical applications. 
The Commission adopted a proposal for a revise d Regulation on animal by-products. It is 
expected that future application of the ne w legislation will benefit from the extensive 
consultation with all relevant actors during its creation and fr om the more streamlined and 
clearer basic principles, with the possibility to adopt a nd adapt the detailed rules, as necessary, 
by Comitology procedure. 
Planned Action 
The proposal for a revised Regul ation on animal by-products is subject to the co-decision 
procedure. It is expected that the proposal wi ll be adopted in 2009. The plan is, after having 
consulted Member States and stakeholders , to complement the new Regulation with 
Comitology measures determining the technica l standards for the co llection, processing, use 
and disposal of animal by-products. 
Once the shape of the new rules is clear, the or ganisation of training co urses, in particular, 
under the "Better Training for Safer F ood" initiative, w ill be considered. 
Summary of Sector 
The use of inapt material in the production of food and feed remains a temptation for the feed 
and food industry as it works under a severe cost  pressure. The regulatory challenge is to 
establish clear and enforceable rules that rema in proportionate and do not create a sprawling 
bureaucracy. 
14.4.22.5.  Animal Welfare 
Current Position 
Despite the fact that animal welfare is not one  of the objectives of the Treaty or the Common 
Agricultural Policy, full regard must be had to  it in the formulation and implementation of 
Community policies as it was stated by the Prot ocol on the Protection an d Welfare of Animals 
attached to the Treaty of Amsterdam. Accordin g to this, the Community  has delivered a raft 
of significant measures in the animal welfare ar ea. Such measures are mostly based on Article 
37 EC(agriculture) while others aimed at harmonising health and consumer protection 
                                                
 
437 COM(2008)345final. 
EN 334   EN indirectly linked with animal issue as well as  measures in the veteri nary and phytosanitary 
fields having as their main obj ective the protection of human heal th are adopted on the basis, 
respectively, of Article 95 and 152 EC. The Europ ean Court of Justice ha s also declared that 
"the interests of the Community include the he alth and protection of animals" (Joined cases 
C-37/06 and C-58/06, para. 23). 
Animal welfare in holdings/on the farm 
Council Directive 98/58/EC on the protection of  animals kept for farming purposes sets 
general rules for the protection of animals of  all species kept for the production of food, 
textiles or for other farming purposes. It define s general principles and minimum standards on 
appropriate feeding, comfort and prevention of  unnecessary suffering. More specific rules 
apply to laying hens, bro ilers, calves and pigs. 
Animal welfare during transport 
Council Regulation (EC) No 1/2005 of 22 Decem ber 2004 on the protection of animals during 
transport and related operations intends to reduce the stress and harm that animals can 
experience when moved. It sets general principl es and introduces standards for vehicles and 
equipment, and requirements for those dealing with animals in transport. It also provides rules 
for enforcement of EU rules, such as the use of satellite navigation systems. 
Animal welfare during slaughter 
Every year nearly 360 million pigs, sheep, goats  and cattle, several billion poultry and 25 
million fur animals are slaughtered in the Comm unity for the production of meat and textiles. 
The control of contagious diseases may requ ire the culling of thousands to millions of 
animals. 
The technical requirements of Directive 93/119/E C on the protection of animals at the time of 
slaughter or killing have become outdated. New technologies, international standards and 
scientific opinions from the E FSA call for the revision of the Directive. Culling as a response 
to animal epidemics calls the methods us ed into question. New stunning methods need 
harmonised rules. The responsibility of operators  and training requirements for staff needs to 
be redefined. 
Complaints: 
The number of complaints on animal welfare remains relatively high (17 current 
investigations, 22 closed in 2008) . This appears to be due to: 
• The fact that a part of the Community's populat ion is particularly interested in animal 
welfare and prepared to use considerable  resources to address their concerns; 
• The fact that a number of welfare requireme nts are in conflict with some economic 
interests; 
• The fact that animal welfare science is a rela tively new area and consequently stakeholders 
are not aware of the benefits  of respecting some provisi ons of the EU legislation. 
Different levels of priority are given to animal welfare in Member States due to the following 
factors: 
EN 335   EN • The need for compromise on minimum standards which lead to complaints against 
Member States applying stricter rules; 
• Animal welfare not being high on the poli tical agenda of some Member States. 
Moreover; agricultural practices or cultural tr aditions accepted in one Member State upset 
citizens in other Member States who seek improvement via Community institutions. In 
addition, the situation is aggravated by the fact  that many operators are transporting animals 
without proper knowledge of Council Regulatio n (EC) No 1/2005 on transport of animals. 
Report on Work Done in 2008 
Animal welfare in holdings/on the farm 
As a result of additional means provided by the European Parliament, we commissioned a 
pilot project for study on th e improved methods for animal -friendly production, i.e. on 
alternatives for castrating pigs and dehorning cattle. 
Animal welfare during transport 
The Commission initiated during 2008 a study on travelling times and space allowances, 
which was used for preparing an impact assess ment, because the appropriateness of current 
requirements is questioned by stakeholders an d animal welfare organi sations for different 
reasons. 
We also continued our cooperation with the Joint Research Centre to evaluate tracking 
systems for vehicles transporting animals ove r eight hours. Such systems could improve 
enforcement of Community rules involving the transport of animals through several Member 
States and contribute to simplification a nd the reduction of admi nistrative burden for 
stakeholders and control staff. 
We have started to draft an impact assessme nt on the effects of ru les concerning improved 
rules on comfort for and traceability of animal during transport and engaged in preparatory 
action to promote high quality control posts for resting animals transported over long 
journeys. 
Animal welfare during slaughter 
Following the scientific opinions of 2004 an d 2006 from the EFSA, the shortcomings 
identified by the FVO and complaints, the Comm ission presented a proposal for a Regulation 
on the protection of animals at the time of killing438. This proposal intends to improve the 
conditions for animals when slaughtered or cu lled and ensures that they are treated with 
respect. To simplify the existing legislation a nd bring it in line with food hygiene regulations, 
the proposal integrates welfare considerations into the design of slaughterhouses and requires 
the regular monitoring of the efficiency of stunning techniques. 
FVO Inspections Findings 
                                                 
438 COM(2008)553. 
EN 336   EN FVO missions found that in a small number of  Member States, where enforcement was 
strong, good implementation of the laying hens Directive had been achieved and progress had 
been made in phasing out conventional cages. However the majority of Member States are 
lagging behind on this issue. 
In the pig sector only a handful of Member States have made progress in implementing 
requirements from 2001 and there is a genera l lack of enforcement of long standing 
requirements such as provision of enrichment  materials and elimination of tail-docking. 
Concerning the transport of animal s, control of journey times was not sufficiently dealt with, 
with the exception of on e Member State visited. 
Although on farm emergency slaughter has been implemented in a number of Member States, 
the issue of the transport of seriously injured cows to sla ughterhouses continues to be a 
significant problem in others. The main issue rega rding animal welfare in relation to slaughter 
was that although certain Member St ates only allow animals to be  ritually slaughtered without 
stunning after determining a specific need for th is, others have allowed the derogation to be 
applied to all animals killed at certain sla ughterhouses without adequately identifying this 
need. 
Evaluation 
Animal welfare remains an issue attracting public attention. 
Some attention is devoted to dealing with situ ations for which we l ack powers to regulate. 
Stray dogs, for instance, do not fall under the scope of the Treaty but yet the Commission 
devotes considerable resources to replyi ng to citizens complaining about cruelty. 
The different relevance and polit ical weight that animal welf are has amongst Member States 
makes it difficult to set rules that satisfy agriculture, animal welfare organisations and consumers at the same time. Without furthe r legal powers in the Treaty and additional 
resources dedicated to this field we will not be  able to satisfy the expectations of animal 
welfare organisations. 
Animal welfare during transport 
The number of complaints (8 of 17 open comp laints deal with tran sport) and numerous 
requests for specific amendments reveal that  Council Regulation (EC) No 1/2005 on transport 
of animals needs to be amended. The main con cerns are the ambiguity of its scope (which 
animals and what kind and means of transport ar e covered), the difficulty  to define certain 
requirements with sufficient cl arity, while allowing a degree of  flexibility (e.g. water supply, 
approval of transport means, documentation requirements). 
Animal welfare in holdings/on the farm 
We continue to receive complaints on certain practices used by farmers to facilitate the 
rearing and manipulation of anim als (e.g. tail docking in  pigs, procedures to castrate male 
piglets). It remains difficult to objectively evaluate these practices. We have reacted by 
commissioning studies and by encour aging others to conduct such studies. Further exploration 
of viable alternatives to re spective practice is necessary. 
EN 337   EN Compliance with the laying hens Directive con tinues to be problematic mainly in the new 
Member States where cages used are, amongs t others, often too small to comply with 
Community rules. 
Priorities 
It will remain important to react swiftly and proportionately to the concerns of interested 
stakeholders. The FVO will continue to put an emphasis on establishing data on the compliance of Member States with Commun ity rules on animal welfare to detect 
shortcomings but also in order to understand more precisely w hy certain Member States have 
difficulties to comply with welfare rules. 
Planned Action 
A number of actions that have been initiated in 2008 will be mainta ined and expanded. These 
include, for example, the “Farmland” initiative (an interactive website for children on the origin of food and on the welfare of farm animal s), pilot project on the castration of piglets, 
and improving control posts. 
The Commission constantly receives requests to develop European strategies to give 
transparent information on animal welfare in food production. The Commission wishes to 
further assess the feasibility of possible options  to introduce animal welf are labelling and will 
present a communication to  support an in-depth debate on the subject in the Council and in 
the European Parliament. 
The Community Action Plan on the Protecti on and Welfare of Animals 2006-2010 envisages 
the creation of a European Network of Refere nce Centres for the protection and welfare of 
animals, which could serve as a coordinating bo dy for the different initiatives related to the 
animal welfare labelling and perform tasks in  particular in relation to harmonisation and 
coordination, policy advice and sharing of best practices, education and training and 
dissemination of information. The Centre should also facilitate the preparation of relevant 
socio-economic studies and impact assessments. 
In addition, the Commission will start an ev aluation process on the Community policy on 
animal welfare in order to reassess the need for an action plan, foreseen for 2010. 
We intend to present a proposal to amend Co uncil Regulation (EC) No 1/2005 in order to 
improve the applicability of the rules in an effo rt to streamline and strengthen the protection 
of animals during transport. 
As to address the problems identified, the proposal on the protection of animals at the time of 
killing aims at increasing the responsibility of operators on animal we lfare and the level of 
competence of the personal in slaughterhouses. Se veral changes are also introduced as to take 
into account the technological changes and th e new scientific knowledge in this field. 
Summary of Sector 
The challenge in this sector is  to reply to the growing Europ ean citizens' concerns on animal 
welfare and to balance expectati ons of animal welfare organisa tion with the requirements of a 
competitive agriculture, while seeking to s implify legislation and reduce administrative 
burden. 
EN 338   EN 14.4.23.  Plant Health 
14.4.23.1.  Current Situation 
In 2008, the strategy of the Commission in this field has gone in two directions: 
First, ensure the application of the current acquis through, in particul ar, the strengthening of 
the emergency measures against pinewood nematode (Bursaphelenchus xylophilus), the 
adoption of new emergency measures agai nst Chinese long horn beetle (Anoplophora 
chinensis), and the update of the list of th e harmful organisms mentioned in Directive 
2000/29/EC. 
In parallel different exercises have been undert aken to initiate an evaluation of the whole 
acquis in this area: 
An evaluation of the Community regime of financ ial contributions to help Member States to 
control outbreaks of organisms harmful to plan ts and plant products has been completed. An 
action plan has been presented an d discussed in the Council. This  action plan intends to ease 
the use of the regime by Member States a nd its administration by the Commission. Certain 
more strategic issues have also been considered  and will be evaluated in the framework of the 
above mentioned overall evaluati on of the plant health regime. 
In addition, in order to develop the future Comm unity plant health strate gy, terms of reference 
have been prepared for conducting an overall  evaluation of the cu rrent Community plant 
health regime. The regime aims to protect the EU territory against in troduction and spread of 
regulated organisms which are harmful to pl ants. It lays down specific requirements for 
imports of all plants and some plant products into the EU and for internal movement of a 
limited number of plants within the EU. The firs t objective of the evaluation will be to analyse 
the results of the existing regime. The second obj ective will be to clarif y which aspects of the 
current regime need to be improved and to  suggest potential opt ions for amendment, 
including possible improvements to its structur e and working practices. The evaluation will 
start in the early 2009 and be completed in 2010. 
In parallel, in order to better protect the Co mmunity against the entry and spread of plant 
harmful organisms, Community legislation has b een developed or amended, in particular as 
regards emergency measures against the pi newood nematode, and the Chinese long horn 
beetle, attacking a broad range deciduous trees and shrubs). 
The implementation of Community legislation in the field of protected zones has been 
simplified by converting the ad  hoc Directive 2001/32/EC into  the Regulation No (EC) 
690/2008. 
Moreover, 7 new harmful organisms have been  added to the lists of regulated harmful 
organisms in the basic plant heath Directive 2000/29/EC. 
EUROPHYT, the Community database for notifica tion of interceptions, has been upgraded in 
2008 to automatically info rm the third country of origin whenever a consignment originating 
in that country has been intercepted at import for phytosanitary reasons and has been 
introduced in EUROPHYT. In essence, this ac hieves compliance to an international IPPC 
obligation to inform the country of origin abou t interceptions at impor t and facilitates this 
process for the EU Member States. 
EN 339   EN A guidance document has been prepared to explain the EU requirements for additional 
declarations on phytos anitary certificates439. 
14.4.23.2.  Legislative Changes Underway 
The preparatory work to allow a recast of the main plant health Directive (Directive 
2000/29/EC) was achieved in 2008 and will continue to be rolled out in 2009. 
An impact assessment study has been launched to analyse the economic, social and 
environmental impacts of options for the lo ng-term EU strategy against Western Corn 
Rootworm (Diabrotica virgifera), a re gulated harmful organism of maize. 
14.4.24.  Seeds and Plant Propagating Material 
14.4.24.1.  Current Situation 
In 2007-2008, an evaluation of th e legislation on marketing of  seeds and plant propagating 
material (12 basic Di rectives concerned440) was carried out. This evaluation, which was 
placed in the general context of Better Regulatio n initiative, aimed at establishing objectively 
how effectively and efficiently the legislation ha s met its original objectives, and to identify 
its strengths, the areas for improvement and it s robustness with rega rds to potential new 
challenges affecting this field. It also aimed to  analyse the coherence of the intervention with 
other related interventions, and with the OECD a nd other international st andards as well as to 
assess the relevance and the utility of th e intervention. 
Possible options for future were suggested with a particular attention paid on to the social, 
environmental and economic impact of each of th ese options, as well as  on the feasibility of 
each option, stakeholders' level of support and their strengths and weaknesses. The concepts of simplification and reduction of administrative burden on th e public authorities and the 
private sector were al so taken into account. 
In addition, in September 2008, the Council adopted Directiv e 2008/90/EC on the marketing 
of fruit plant propagat ing material and fruit plants inte nded for fruit production which is a 
recast of the Directive on the marketing of fr uit plant propagating material. This recast was 
prepared by the Commission based on the principle of better regulation and simplification to 
ensure a more efficient and transparent functi oning of the internal market for fruit plant 
                                                
 
439 http://ec.europa.eu/food/index_en.htm. 
440 Council Directive 66/401/EEC on the marketing of fodder plant seed (OJ 125, 11.7.1966, p. 2298–
2308); Council Directive 66/402/EEC on the marketing of cereal seed (OJ 125, 11.7.1966, p. 2309–
2319); Council Directive 2002/54/EC on the marketing of beet seed OJ L 193, 20.7.2002, p. 12–32); 
Council Directive 2002/55/EC on the marketing of vegetable seed (OJ L 193, 20.7.2002, p. 33–59); Council Directive 2002/56/EC on the marketing of seed potatoes (OJ L 193, 20.7.2002, p. 60–73); 
Council Directive 2002/57/EC on the marketing of seed of oil and fibre plants (OJ L 193, 20.7.2002, p. 
74–97); Council Directive 68/193/EEC on the marketing of material for the vegetative propagation of the vine (OJ L 93, 17.4.1968, p. 15–23); Council Directive 2008/72/EC of 15 July 2008 on the 
marketing of vegetable propagating and planting mate rial, other than seed (OJ L 205, 1.8.2008, p. 28–
39); Council Directive 2008/90/EC of 29 September 2008 on the marketing of fruit plant propagating 
material and fruit plants intended for fruit production (OJ L 267, 8.10.2008, p. 8); Council Directive 
98/56 on the marketing of propagating material of ornamental plants (OJ L 226, 13.8.1998, p. 16–23); Council Directive 1999/105/EC on the marketing of forest reproductive material (OJ L 11, 15.1.2000, p. 
17–40); Council Directive 2002/53/EC on the common catalogue of varieties of agricultural plant 
species (OJ L 193, 20.7.2002, p. 1–11). 
EN 340   EN propagating material. It was intended to clar ify and simplify the regulatory framework in 
which business operates (clarification of the defi nitions, of the requirements to be met), to 
adapt the legislation based on technical and sc ientific progress and finally to align this 
Directive with the other Dir ectives on the marketing of pr opagating material which have 
recently been amended in the framework of the new Common Agricultural Policy441. 
To facilitate trade, to harmonise rules for the internal market and to reduce administrative 
burden, the following implementing measures were also adopted: 
• In June 2008, the Commission adopted Dire ctive 2008/62/EC providing for certain 
derogations for the acceptance of agricultural landraces and varieties which are naturally 
adapted to the local and regi onal conditions and threatened by genetic erosion and for the 
marketing of seed and seed potatoes of those landraces and varieties (conservation 
varieties). This Directive, an implementing measure based on the various Directives on the 
marketing of seed of agricultural plant species and potatoes, sets out specific conditions under which the marketing of conservation variet ies may take place. Before the adoption of 
this Directive, the marketing of conservation varieties was not possible as these varieties 
were not able to meet the required marketi ng conditions set out by the basic Directives. 
• In December 2008, Council Decision 2008/971/EC on equivalence of forest reproductive 
material produced in third countries was a dopted. This Decision harmonises at Community 
level the conditions under which forest repr oductive material may be imported from third 
countries. It was completed by the adopt ion of Commission Decision 2008/989/EC 
authorising Member States, in accordance with Council Di rective 1999/105/EC, to take 
decisions on the equivalence of the guarantees afforded by forest reproductive material to 
be imported from certain third countries. 
14.4.24.2.  Legislative Changes Underway 
Based on the results of the mentioned evaluatio n the Commission is currently preparing an 
action plan to be finalised by June 2009. In addition, the process has started to identify the issues on which detailed impact assessments should be carried out before options for the 
future can be chosen. 
Notwithstanding the work done on th e evaluation - which will produ ce its fruits in the future - 
different actions have been undertaken to ensure the updating an d adaptation of the 
Community legislation on the seed and propagating material legislation to current needs. In 
particular, several key implementing measures , sometimes long time awaited, were adopted 
(i.e. Directive 2008/62/EC providing for certain derogations for the acceptance of agricultural landraces and varieties which are naturally ad apted to the local and regional conditions and 
threatened by genetic erosion and for the mark eting of seed and seed potatoes of those 
landraces and varieties and the re view of the conditions of impor t of certain forest material 
coming from third countries into the Community). 
                                                
 
441 Council Directive 98/56 on the marketing of propagating material of ornamental plants (OJ L 226, 
13.8.1998, p. 16–23); Council Directive 1999/105/EC on the marketing of forest reproductive material 
(OJ L 11, 15.1.2000, p. 17–40). 
EN 341   EN 14.4.25.  Plant Variety Rights 
The Community Plant Variety Rights system was created by Council Regulation (EC) No 
2100/94. This Regulation is based on the UPOV Convention of 1991 (International Union for 
the Protection of New Varieties of Plants) and provides protecti on of new plant varieties valid 
throughout the European Community. The plant variety protection right is a form of 
intellectual property akin to a patent. On the basis of a single application to the Community Plant Variety Office based in Angers (F), a breeder may be granted a Community-wide 
intellectual property right for his/her new variety. In 2008, the Community Plant Variety 
Rights results were outstanding: more than 3 00 0 applications were received by the Office in 
Angers. Currently, nearly 16.000 varieties of plan ts are protected under  the Community Plant 
Variety Rights system. 
During the course of 2008 effo rts were made to improve th e implementation of the plant 
variety system. Commission Re gulation (EC) No1239/95 establis hing implementing rules for 
the application of Council Regulation (EC) No 2100/94 as regards proceedings before the 
Community Plant Variety Office was amende d by Commission Regulation (EC) No 355/2008 
as regards the use of electronic means of  communication in proceedings before the 
Community Plant Variety Office. 
Furthermore, Commission Regulation (EC) No  1238/95 establishing implementing rules for 
the application of Council Regulation (EC) No  2100/94 as regards the fees payable to the 
Community Plant Variety Office was amende d by Commission Regulation (EC) No 572/2008 
as regards the level of the annua l fee and the fees re lating to technical ex amination, payable to 
the Community Plant Variety Office, and the manner of payment. 
In the frame of "better re gulation", a recast of Commi ssion Regulation (EC) No 1239/95 
establishing implementing rules for the applicat ion of Council Regulation  (EC) No 2100/94 as 
regards proceedings before the Community Plant Variety Office started in the last quarter of 
2008. 
15. JUSTICE,
 FREEDOM  AND  SECURITY 
15.1. Immigration and integration 
15.1.1.  Current position: ge neral introduction 
Community legislation in the fiel d of immigration and integrati on currently cons ists of seven 
directives. The two first directives concern il legal immigration and were adopted on the basis 
of Articles 61(a) and 63(3)(b) of the EC Tr eaty: the carriers liability Directive 2001/51442 and 
Directive 2002/90443 defining facilitation. As concerns lega l migration, three sets of measures 
of have been adopted: 
                                                 
442 Council Directive 2001/51 of 28 June 2001 supplementing the provisions of Article 26 of the 
Convention implementing the Schengen Agreement of 14 June 1985 (OJ L 187, 10.7.2001, p. 45). 
443 Council Directive 2002/90 of 28 November 2002 defi ning the facilitation of unau thorised entr y, transit 
and residence (OJ L 328, 5.12.2002, p. 17). 
EN 342   EN • a first set of measures a dopted in 2003: the family reunification Directive 2003/86444 and 
the long-term reside nts Directive 2003/109445; 
• Directive 2004/81 of 29 April 2004 on the re sidence permit issued to third-country 
nationals who are victims of trafficking in hum an beings or who have been the subject of 
an action to facilitate illega l immigration, who cooperate w ith the competent authorities446; 
• the students Directive 2004/114447 and the researchers Directive 2005/71448. 
The EU’s comprehensive migration policy is s till being developed, and consequently efforts 
in this area are as much about developing ne w legislation as ensuring the application of 
existing legislation. As concerns labour migr ation, the Commission in its 2005 Policy Plan on 
Legal Migration449 announced its intention to presen t proposals for a general framework 
directive and directives for sp ecific categories of paid wo rkers. As at the end 2008 the 
Council was close to agreement on the first such specific directiv e, the highly-skilled workers 
directive (“EU Blue Card”). In  the field of illegal immigrati on, the European Parliament and 
Council were close to final ag reement on the employer sanctions directive. Both those 
directives have been  adopted in 2009, with a deadline for transposition in 2011.  
Further legislative proposals are likely to result  from the programme that will follow on from 
the Hague programme and its accompanying Action Plan. 
15.1.2.  Current position: Report on work done in 2008 
As concerns infringements, the Commission continue d, in line with the priorities stated in the 
2007 Annual Report450, to prioritise non-communication cases and the most important 
suspected infringements disclosed by complaints. 
As regards non-communication cases , in the course of 2008 most of the Member States that 
had not initially complied with the transposition deadlines did so. By the end of the year 
transposition measures had stil l not been communicated by Cypr us in relation to Directive 
2005/71 and Spain in relation to Directives 2003/109451, 2004/81452, 2004/114 and 2005/71453. 
                                                 
444 Council Directive 2003/86 of 22 September 2003 on the right to family reunification (OJ L 251, 
3.10.2003, p. 12). 
445 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals 
who are long-term residents (OJ L 16, 23.1.2004, p. 44). 
446 OJ L 261, 6.8.2004, p. 19. 
447 Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country 
nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (OJ L 
375, 23.12.2004, p. 12). 
448 Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country 
nationals for the purposes of scientific research (OJ L 289, 3.11.2005, p. 15). 
449 COM(2005) 669 final. 
450 SEC(2008) 2854 at p.226. 
451 Following judgment of 15.11.2007, Case C-59/07 Commission v. Spain , an Article 228 procedure was 
begun. 
452 Case pending before the Court, Case C-266/08 Commission v. Spain . 
453 Case pending before the Court, Case C-523/08 Commission v. Spain . 
EN 343   EN As regards suspected infringements disclo sed by complaints, the Commission started an 
infringement procedure against th e Netherlands in relation to the high level of fees charged to 
those applying for long-term residents permits. 
As concerns the management of the existing acq uis, a meeting of the contact committee on 
the legal migration dir ectives provided the opportunity for a useful exchange of views 
between the Commission and national experts involved in the appli cation of the legal 
migration directives. A meeting of the nationa l contact points appoint ed under the long-term 
residents Directive 2003/109 was also held. Al ongside discussions in the contact committee, 
the European Migration Network454 (EMN) allowed Member States (and the Commission) to 
address ad-hoc queries to obtain a quick ove rview on how other Member States transpose 
specific provisions of the Directives. 
The final report of a study into the transpositio n of 10 immigration and asylum directives was 
delivered. The study was carried out by the Odysse us Academic Network for Legal Studies on 
Immigration and Asylum in Europe on behalf of the European Commission. In the field of 
immigration the report covers Directives 2001/51, 2002/90, 2003/86, 2003/109 and 2004/81.  
The Commission presented a report on the applicat ion of the family reunification Directive 
2003/86455, based on the Odysseus ne twork study, a study carried out by the EMN and other 
studies. The report notably revealed a few cross-cu tting issues in relation to the transposition 
or application of the Directive, such as  the provisions on visa  facilitation, granting 
autonomous residence permits, taking into account the best interest of the child, legal redress 
and more favourable provisions for the family reunification of refugees.  
As concerns the development of new legisl ation, legislative discussions in Council and 
European Parliament continued on the th ree proposals presented in 2007: the general 
framework directive for labour migrat ion (“Rights and single permit”)456, the highly-skilled 
workers directive (“EU Blue Card”) 457 and the employer sanctions directive 458. In addition, 
the Commission started preparing its proposals for directives on other specific categories of 
paid workers (seasonal workers, intra-corporat e transferees and remunerated trainees) in line 
with the 2005 policy plan. 
15.1.3.  Evaluation of work done in 2008 
2008 nevertheless marked the year in which th e transposition process for the existing acquis 
was for the most part achieved. It is regrettable that many Member States were late in transposing the directives in this field. For fu ture directives Member States need to make 
renewed efforts to complete the transposition within the deadlines. 
                                                
 
454 Council Decision 2008/381/EC of 14 May 2008 establishing a European Migration Network (OJ L 131, 
21.5.2008, p. 7). 
455 COM(2008) 610 final. 
456 Proposal for a Council Directive on a single application procedure for a single permit for third-country 
nationals to reside and work in the territory of a Member State and on a common set of rights for third-country 
workers legally residing in a Member State COM(2007) 638 final 
457 Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the 
purposes of highly qualified employment COM(2007) 637 final 
458 Proposal for a Directive of the European Parliament and of the Council providing for sanctions against 
employers of illegally staying third-c ountry nationals COM(2007) 249 final 
EN 344   EN The external transposition study covering 5 of  the directives provides a good foundation for 
future work in ensuring the co rrect application of this acqui s. The study notably provided one 
of the bases for the Commission’s report on the fa mily reunification directive, which in turn 
will form the basis of future work to review that  directive. This approach (first an external 
study, then a Commission report as a basis for further action) will be progressively applied to 
the other directives whic h contain a reporting oblig ation for the Commission. 
Legislative activity (pre paring new proposals as well as legislative discussions themselves) 
continued to be importa nt in this sector. 
15.1.4.  Evaluation results: priorities 
1. Assessing the need for a review of the fa mily reunification Di rective 2003/86. This 
was the first legislative instrument on legal migration at EU level and, as a result several Member States
459 for the first time have a detail ed set of rules on the right to 
family reunification in th eir national legislation. 
2. Preparing Commission reports on the appli cation of other priority directives. 
15.1.5.  Evaluation results: planned action (2009 and beyond) 
As regards the first priority, the family re unification Directive 2003/86, the Commission will 
follow up its report on the directive as follows: 
• In line with the with the call of the Europ ean Pact on Immigration to regulate family 
migration more effectively460, the Commission will launch a wider consultation – in the 
form of a Green Paper – on the future of the fa mily reunification regime . This could lead to 
proposals, at earliest in 2010, to  amend the current directive. 
As regards the second priority, the Commission will start preparing its reports on the victims 
of trafficking directive. On the basis of t hose reports the Commission will decide on what 
further action is needed. 
Other activity will include: 
• Handling individual enquiries an d complaints (the number of  which is rising), where 
possible using the EU Pilot project. 
• Commissioning an external transposition study, as well as a study to update the Odysseus 
network study on the long-te rm residents directive. 
As concerns new legislation: 
                                                 
459 EL, CY, MT, RO. 
460 Presidency Conclusions, document 14368/08. The Pact itself is in document 13440/08, and the 
reference to family migration is at point I(d). 
EN 345   EN • Two directives have been adopted in 2009: th e highly-skilled workers directive (“EU Blue 
Card”) and the employer sanctions directiv e. Beginning in 2009 and continuing until the 
transposition deadline in 2011 the Commission will follow closely the transposition and 
will offer assistance to Member States through meetings of contact committees and bilateral contacts. 
•  
15.1.6.  Summary 
Priority will be given to following up the firs t Commission report on a dir ective in this sector, 
the family reunification directive. A Green Pa per will launch a consultation on whether the 
rules should be changed. The Commission will pr epare reports for the vi ctims of trafficking 
directive. Given the ongoing development of the EU’s comprehensive migration policy, 
attention also needs to be given to the good pr eparation of new proposal s and the following of 
the transposition of directives that have been adopted in 2009. 
15.2. Asylum 
15.2.1.  Current position – report on work done in 2008 
On 17 June 2008, the Commission adopted a Policy Plan on asylum
461, summarising the 
feedback to the Green Paper on as ylum policy published in June 2007 462 and setting out a 
"road map" for the future development of the Common European Asylum System (CEAS). In particular, the plan underlined the need fo r the Commission to make further legislative 
initiatives in the near future, including propos als for the revision of  the principal existing 
Community legal instruments in th e asylum field, as well as fu rther proposals for the adoption 
of legislation establishing a European Asyl um Support Office to support practical cooperation 
efforts between Member States in asylum ma tters and establishing an EU resettlement 
scheme. Further possible measures, including better  coordination of the external aspects of the 
Community's asylum policy, a nd providing for greater solidarit y between Member States in 
the reception of asylum seeker s, were also contemplated.  
On 3 December 2008, the Commission adopted pr oposals to revise three legislative 
instruments: the Reception Conditions Direc tive (Directive 2003/9), the "Dublin" Regulation 
(Regulation 343/2003)
 463, and the EURODAC Regulation (R egulation 2725/ 2000). The main 
purpose of the proposed revision of the Recepti on Conditions Directive is: to enhance the 
general standards of treatment for asylum seeker s; to ensure greater protection of vulnerable 
persons; to improve access to the labour market fo r asylum seekers; to limit the detention of 
asylum seekers to those situations where it is necessary; and, to ensure  that the scope of the 
Directive extends to all thos e seeking protection (both ref ugee and subsidiary protection 
status). The main purpose of the proposed  revisions of the "Dublin" and EURODAC 
Regulations is: to enhance the protection of asylum seekers, in particular of vulnerable 
                                                 
461 "Policy Plan on Asylum – an integrated approach to protection across the EU" (COM(2008) 360). 
462  COM(2007) 301 final 
463  Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and 
mechanisms for determining the Member State responsible for examining an application for international 
protection lodged in one of the Member  States by a third-country national or a stateless person COM(2008) 820 
final 
EN 346   EN persons; to ensure greater efficiency in the system for the determination of the State 
responsible for examining asylum applications, a nd; to introduce flexibility in the system to 
enable the transfer of asylum seekers to be suspended in the interests of solidarity between 
Member States or in order to ensure the protection of the persons concerned. 
In January 2008, the Commission se nt letters of formal notice to 15 Member States for non-
communication of transposition measures relating to the As ylum Procedures Directive 
(Directive 2005/85). In September 2008, the Co mmission sent a reasoned opinion to Belgium 
for non-communication of transposition measures relating to that Directive; Belgium had not 
replied to the letter of formal notice. By  December 2008, 6 Member States still had not 
communicated full transposition of  the relevant parts of the Directive. In December 2008, 
proceedings against 4 Member States for non-communication of transposition measures 
relating to the Qualificat ion Directive (Directive 2 004/83) were still pending.464  
In January 2008, the Commission initiated proceed ings against Greece before the European 
Court of Justice for non-appli cation of the Dublin Regulati on, and in particular for not 
granting effective access to the asylum procedur e to asylum seekers who were transferred to 
Greece under the Dublin Regulation, thus creating a risk of violation of the non-refoulement  
principle; the Greek legislation provided that the substance/merits of an asylum application 
would not be examined, if the examination ha d been interrupted by the asylum seeker's 
having left the territory of Greece.465 These proceedings before the ECJ were withdrawn in 
September 2008, following the revision of legislation by Greece. 
During 2008, the Commission also pursued act ivities aimed at enhancing practical 
cooperation between Member States in the asyl um field, notably by organising a series of 
Workshops focused on the assessment of the protection needs of asylum seekers from 
particular countries-of-origin. 
15.2.2.  Legislative changes underway (2009-2010) 
Discussion of the three Co mmission proposals for revision of the Reception Conditions 
Directive, the Dublin Regulation, and the EURODAC Regulation in the Council Working 
Group is expected to continue throughout 2009. 
On 18 February 2009, the Commission adopted a proposal to create a European Asylum 
Support Office (EASO) as an independent Community agency to manage practical 
cooperation in the asylum field, including an  amendment of the Decision establishing a 
European Refugee Fund.466 The establishment of an EASO enjoyed the unanimous political 
support of the European Council in  October 2008, in the context of the conclusion of the so-
called European Pact on Immigra tion and Asylum. It is expected  that political agreement will 
be reached on the proposal during the first half of 2009, and that it will be adopted before the 
end of 2009. 
                                                 
464 The case against Finland resulted in a ruling by the ECJ on 5 February 2009 that Finland had breached 
Art. 226 (Case C-293/08, Commission v Finland ). 
465 Case C-130/08, Commission v. Greece . 
466 Council Decision No 573/2007/EC. 
EN 347   EN 15.2.3.  Evaluation based on the current situation 
The Community acquis  in the asylum field, all of which has been in force for less than ten 
years, is still relatively recen t. In line with the ambitions articulated by the Council in the 
Hague  Programme in 2004 and in the Commissi on's own 2008 Policy Plan, the scope of the 
acquis  is in need of being extended and enhan ced, in order to see the successful completion of 
the CEAS. More specifically, Co mmunity asylum legislation should ensure higher levels of 
protection generally, a more leve l playing field for persons seeking asylum in the different 
Member States, greater efficiency in the treatm ent of asylum applications, better coordination 
of the external aspects of asylum policy, an d more solidarity between Member States in 
sharing the burdens associated w ith receiving asylum seekers. 
Moreover, the Commission is particularly conc erned by the fact th at, notwithstanding the 
existence of the common minimum standards and a partial harmonisation in the current 
acquis , the rates of recognition of asylum seekers as qualifying for protection still varies very 
considerably between Member States. This defi cit can be attributed to a number of causes, 
including a lack of legislativ e harmonisation, variation in the manner in which the current 
legislation is applied in practice,  and variation in the nature of the information on the situation 
in countries-of-origin upon whic h asylum decisions are taken.  
In view of these shortcomings , the Commission sees a need to pursue a "twin track" approach 
consisting of, on the one hand, extending the Community acquis  and, on the other, at the same 
time consolidating the acquis  by means of (a) taking infrin gement actions against Member 
States for non-transposition and/ or incorrect application of the acquis , and (b) enhancing 
practical cooperation activities, notably regarding the exchange of information/best practice, 
and the pooling of resources/expertise.  
15.2.4.  Evaluation results: prior ities and planned action 
To date, the Commission has given priority to the creation and further development of 
Community legislation in the asylum field, and to facilita ting practical cooperation among 
Member State authorities.  
The Commission intends to pursue the following priorities in relation to the development, 
application and monitoring of Community law in  the asylum field in the coming years:  
• The creation and further development of Comm unity legislation in the asylum field, 
notably as regards the amendment of the exis ting legislative instruments and the adoption 
of new ones in line with the Policy Plan on as ylum and the Immigration and Asylum Pact; 
• Pursuit of practical cooperation efforts be tween Member States, aimed at improving the 
practical implementation/application of the acquis  in the Member States, with a view in 
particular to ensuring an effective tran sition to the establishment of the EASO; 
• Monitoring and evaluation of th e implementation of Community legislation in the asylum 
field; 
• Contribution to the Commission's intervention be fore the ECJ with regard to requests by 
national courts for preliminary rulings on the interpretation of Community legislation in 
EN 348   EN the asylum field, and follow-up of indivi dual complaints about compliance with 
Community legislation in the asyl um field in the Member States. 
15.2.5.  Summary 
Community law in the asylum field is stil l in the process of being developed. Some 
shortcomings have been identified in the existing acquis  and in the manner in which it is 
applied. Priority in the short to medium term  should be accorded to  extending and improving 
Community legislation in the asylum field. At the same time, it is necessary to intensify 
practical cooperation between Member States with  a view to ensuring more consistency in 
their application of the acquis , in particular by ensuring th e successful establishment of a 
European Asylum Support Office. The Commi ssion will moreover continue to monitor and 
evaluate the implementation of Community legislat ion in the asylum field, to intervene before 
the ECJ with regard to requests by national courts for preliminary rulings on its interpretation, and to follow up complaints against Member States for incorrect application of the acquis . 
15.3. European visa policy 
15.3.1.  Current position: ge neral introduction 
Currently the issuance of short-st ay visas is governed by a numb er of legal instruments drawn 
up over the last 15 years which were mostly developed within the Schengen framework.  
In order to update and simplify this legal framework, the Commission proposed in 2006 to the 
Council and the Parliament the revision of th e Common Consular Inst ructions on visas for 
diplomatic missions and consular posts (CCI ) for the introduction of biometrics and the 
adoption of a Community Code on Visas
467. The proposals have been under discussion in the 
Council and the European Parliament for the last  two years. They are due to be formally 
adopted during the first semester of 2009. 
15.3.2.  Report on work done in 2008 
Due to the process of revision of the community acquis  on short-stay visas during the years 
2007-2008, it was not considered necessary to adva nce infringement procedures initiated in 
2007 which are related to incorrect implementa tion of legislation for which the Commission 
proposed a revision. 
In 2008 the Commission received  and followed up several complaints from individuals 
related to the incorrect implementation of Commun ity law in the field of visas. Most of these 
complaints related to failure to give reasons by consular offices for the visa refusals, lack of 
comprehensive information on the visa application process, delays in th e visa processing time, 
absence of appeal procedures against refusal or l ack of harmonisation among Member States 
Consular offices regarding the lists of s upporting documentation requ ested from the visa 
applicants.  
                                                 
467 Draft Regulation of the European Parliament and of the Council establishing a Community Code on 
Visas (COM(2006) 403 final, 19.7.2006). 
EN 349   EN 15.3.3.  Evaluation based on the current situation 
The complaints received reflected the weakness of the current visa acquis ; a large majority of 
these common problems will be resolved with the introduction of the new Visa Code which 
includes inter alia mandatory provision for reasons on visa refusal and right to appeal, 
harmonised deadlines for the visa handling process, enforcement of local consular 
cooperation and development of c onsular representation at local level. In addition, the 
introduction of biometrics is expected to en sure sharing of inform ation between Member 
States Consular offices and to re solve the problem of visa shopping.  
15.3.4.  Evaluation results: priorities and planned action (2009 and beyond) 
In light of the adoption by the European Parlia ment and the Council of the revision of the 
Common Consular Instructions introducing biometrics and th e Visa Code, the Commission 
has the intention to encourage the timely, co rrect and efficient impl ementation of the new 
legislative framework by all Member States. Du e to the importance of visa policy in EU 
external relations as well as th e impact of an efficient visa policy for fighting against illegal 
migration, the Commission will also identify, in consultations with Member States, priority 
areas of action.  
15.4. Document Security - European passport and residence permits 
15.4.1.  Current position – report on work done in 2008 
The Commission continued to closely moni tor the implementation of the Regulation 
1030/2002 laying down a uniform format for reside nce permits for third country nationals.  
In addition, within the framew ork of the process for the intr oduction of biometrics to the 
documents issued by EU Member States , the Council adopted on 18 April 2008 an 
amendment of Regulation 1030/2002 regarding the collection of the facial image and two 
finger prints from thir d country nationals.  
Ensuring the implementation of Regulation 2252/ 2004 on standards for security features and 
biometrics in passports and travel documents i ssued by Member States was a priority for the 
Commission, in particular in relation with Member States which acceded to the European 
Union in 2004 and 2007. 
In 2008, the revision of regula tion 2252/2004 was discussed on th e basis of the Commission's 
proposals dated 18 October 2007 which provides harmonised exceptions for children under 6years old and persons who are physica lly unable to give fingerprints.  
15.4.2.  Evaluation based on the current situation 
During 2008 the Commission continued to closely monitoring the correct implementation of 
Regulation 1030/2002 laying down a uniform format for residence permits for third country 
nationals; in this context, reasoned opinions have been sent to Italy and Belgium for incorrect implementation of Article 9 of that Regulation.  
EN 350   EN Significant progress has been achieved in 2008 regarding the implementation of Regulation 
2252/2004 on standards for security features and biometrics in pa ssports and travel documents 
issued by Member States, in particular in rela tion with Member States which acceded to the 
European Union in 2004 and 2007.  
15.4.3.  Evaluation results: priorities and planned action (2009 and beyond) 
Ensuring the correct and timely implementation by all Member States of the second biometric 
identifier (finger prints) - in line with Re gulation 2252/2004 - in the passports and travel 
documents of EU citizens is  a priority action for 2009.  
15.5. Border management and return policy 
15.5.1.  Current position: ge neral introduction 
In the field of border management and return  policy, the Commission mainly carried out its 
control of the application of Community law, which resulted in the launch of infringement 
proceedings in few cases. Moreover, the Com mission handled numerous consultations with 
Member States on the compatibil ity of draft bilateral agreements  with third countries in the 
framework of the Local Bo rder Traffic Regulation 468.  
15.5.2.  Current position: report on work done in 2008 
The Commission has received and followed-up several complaints and petitions from 
individuals related to the incorrect applica tion of Community law in the field of border 
management, and particularly of the Schengen Borders Code 469. Most of these complaints 
and petitions concern the non compliance with provi sions related to the abolition of internal 
border controls and to the removal of obstacles to traffic at road crossing points at internal 
borders between Member States, particularly at the new intern al borders after the Schengen 
enlargement in December 2007.  
Within the framework of the Local Border Traffic Regulation, multiple consultations took 
place between the Commission and a number of Member States on the compatibility of 
bilateral draft agreements  with third countries with the LB T Regulation, in form of exchange 
of information and informal advice, expert's meetings as well as formal exchange of 
correspondence. In particular, the Commission analysed the compatibility of the following 
draft agreements with Community law: Poland -Ukraine, Lithuania-Bela rus, Latvia-Russian 
Federation, Slovakia-Ukraine, Po land-Belarus, Bulgaria-Serbi a, Bulgaria-FYROM, Romania-
Ukraine. Two bilateral agreements on the loca l border traffic entered into force in 2008: 
Hungary-Ukraine and Slovakia-Ukraine.  
As far as the implementation of the Council Di rective 2004/82/EC  is concerned, all Member 
States notified their national legislation ex cept Poland, against which an infringement 
procedure was opened and is still pursued  for non-communication. The infringement 
procedure for non-communication against Gree ce opened in 2007 has been closed, following 
the communication of the transposition measures.  
                                                 
468 20 December 2006, Re gulation (EC) No 1931/2006   
469 15 March 2006, Regulation (EC) No 562/2006 
EN 351   EN In the field of return action focused on some  remaining open cases of non-communication of 
transposition of Directives 2001/ 40/EC (cases related to incomplete transposition had to be 
launched against CZ, EE, MT and SK) and 2003/110/ EC (a pending case against BE could be 
closed; a 228 reasoned opinion had to be sent to ES). 
15.5.3.  Evaluation based on the current situation 
The correct application of Community legislat ion in the field of border management and 
particularly in the absence of internal border controls has a substan tial impact on the area 
without internal borders in which the free movement of persons has to be ensured. The nature 
of the problems identified thr ough complaints and petitions of individuals has been and 
remains a cause of concern for the Commission as  to the effective application of the acquis. 
Particularly, following the Schengen enlargem ent in December 2007 to the nine Member 
States which joined the EU in 2004, new problems raised related to the correct application of 
the acquis at the new internal borders. The Commission endeavours to closely monitor the 
situation in these inte rnal border zones.  
In this context, in March 2009 the Commission adopted a propos al for a Council Regulation 
on the establishment of the evaluation mechanis m to verify the application of the Schengen 
acquis470. This proposal provides for a possibility for the Commission to carry out 
unannounced on-site visits to verify  the absence of controls at internal borders . If this new 
instrument is adopted by the Council as pr oposed by the Commission, it will contribute 
considerably to the correct application of the absence of  internal border controls.  
In the field of return, the main achievement in 2008 was the adoption of the European 
Parliament and Council Directive 2008/115/EC  on common standards and procedures in 
Member States for returning il legally staying third country nationals. So far, Community 
legislation in the field of retu rn had been limited to certain specific issues chosen by Member 
States under their right of co-ini tiative, such as the organisati on of joint flights for removal 
(Decision 2004/573/EC), assistance in cases of transit for removal by air (Directive 
2003/110/EC) and the possibility of mutual re cognition of expulsion Decisions (Directive 
2001/40/EC). The series of non-co mmunication cases related to th ese instruments is about to 
come to an end in 2009.  
Contrary to the abovementioned measures, th e return Directive 200 8/115/EC is the first 
horizontal piece of Community legislation harm onising systematically and inclusively the 
standards in Member States on  return, removal, entry-ban, de tention etc. The focus of the 
Commissions activities in the next years will therefore be to support and monitor the correct 
transposition of this important le gal instrument by Member States. 
15.5.4.  Evaluation results: priorities 
In 2008, priority has been given to the follow-up  of complaints and pe titions received from 
citizens in the field of internal borders, notab ly with relation to the checks carried out on 
persons in internal border zones and with the remaining obstacles to traffic at the road 
crossing points at internal bor ders. The Commission regularly addressed national authorities 
                                                 
470 COM(2009)102 final. 
EN 352   EN of the Member States in order to obtain expl anations, particularly on the alleged checks on 
persons within the inte rnal border zones.  
In 2008, priority was also given to obtaini ng an agreement on the return Directive 
2008/115/EC. Numerous complaints and petitions re lated to return issues have been received 
but no concrete follow-up could be given, due to a lack of bi nding Community legislation in 
this field.  
15.5.5.  Evaluation results: planned action (2009 and beyond) 
As one of the fundamental objectives, the Comm ission will continue to  closely monitor the 
correct application of the Community legislati on in the field of abse nce of internal border 
controls. The aforementioned Commission's pr oposal could undoubtedly contribute to the 
accomplishment of this objective. Priority will t hus still be given to complaints and petitions 
received from individuals in relation to checks carried out on persons in internal border zones 
and with the remaining obstacles to traffic at ro ad crossing points at in ternal borders. It is 
expected that the volume of enquiries will  increase, as th e sensitivity of the border acquis 
increases.  
Moreover, the Commission will co ntinue to carry out consultati ons with Member States and 
analyse the compatibility of draft LBT agreemen ts with Community law. The priority will 
also be to closely monitor the compliance with EC law of the agreements which are already in 
force.  
Furthermore, the analysis of the correct tran sposition of the Directive on the obligation of 
carriers to communicate passenger data  471 will be finalised in the first months of 2009.  
Finally, numerous complaints and petitions relate d to return issues are being received by the 
Commission. The recent adoption of the re turn Directive 2008/115/EC will allow the 
Commission to become more active and interv ene with Member States on return related 
issues (to a certain extent already during the transposition period which will end in December 
2010 and to a full extent af ter this date). In vi ew of the likely high number of complaints 
which will be received from 2010 onwards, th ere will be a need for priority setting. 
A focus of the Commissions activities in the next years will also be to accompany and 
supervise the correct transposit ion of the return Directive by means of convening contact 
groups with Member States repres entatives in order to facilitate  the identification of possible 
problems and questions of interpretation at an  early stage and to offer an opportunity for 
discussion between Member States  and the Commission Services.  
15.6. Free movement of persons 
15.6.1.  Current position: ge neral introduction 
Free movement of persons const itutes one of th e fundamental freedoms of the internal market, 
to the benefit of EU citizens, of the Member States and of the competitiveness of European 
                                                 
471 2004/82/EC 
EN 353   EN economy. In the first days of the European project, only workers benefited from free 
movement. Over time, this right was extended to  all EU citizens. Citizenship of the Union 
confers on every EU citizen a pr imary and individual right to m ove and reside freely in the 
EU (Article 18 of the EC Treaty). The details of this right are to be found in Directive 
2004/38/EC472 which codified the existing legisla tion and case-law in the area of free 
movement, and simplified it in the intere st of reader-friendliness and clarity. 
Article 18 of the EC Treaty stip ulates that every EU citizen ha s the right to m ove and reside 
freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect. The respective limitations 
and conditions are to be found in Directive 2004/38/EC. 
15.6.2.  Current position – report on work done in 2008 
In 2008 the Commission continued to deal with a large number of enquiries and complaints in 
the area of free movement of persons - 1070 for 2008 compared with 770 received in 2007. 
Complaints management was also a sign ificant part of ensuring full and proper 
implementation of Directive 2004/38/EC. In 2008, 81 complaints were registered with the 
Secretariat-General (compared with 64 regist ered in 2007). There were 91 written EP 
questions and 29 petitions in the area of free movement of persons in 2008. 
The Commission also made an extensive use of informal dispute-settlement mechanisms, 
such as SOLVIT. According to the 2008 repor t on development and performance of the 
SOLVIT network, the number of cases in  the residence rights area rose by 93 %. 
In 2008 9 cases were submitted to the EU Pilot scheme. The single most important ac tivity concluded in 2008 was a doption of the report on the 
application of Directive 2004/38/EC
473. The purpose of this report was to present a 
comprehensive overview of how the Directive wa s transposed into national law and how it 
was applied in everyday life. With this report, the Commissi on discharged its  obligation under 
Article 39(1) of the Directive to draw up a report on the application of the Directive and to 
submit it to the European Parliament and the Council. 
The report has been drawn up on the basis of  many sources, including an implementation 
study, carried out by an external contractor, anal ysing the conformity of  national provisions 
with the Directive, a questionnaire on practical  implementation of the Directive answered by 
the Member States, the Commi ssion’s own investigations, indi vidual complaints, co-operation 
with the European Parliament, Parliamentary resolutions474, questions and petitions and 
discussions in two meetings of the group of e xperts from Member States on practical issues 
arising from applicati on of the Directive. 
                                                 
472 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens 
of the Union and their family members to move and reside freely within the territory of the Member 
States (OJ L 158 of 30 April 2004, p. 77). 
473 COM(2008)840 final. 
474 EP resolution of 15 November 2007 on application of Directive 2004/38/EC (P6_TA(2007)0534). 
EN 354   EN Concerning implementation of pr iorities established in the 25th Annual Report on  the Control 
of Application of Community law (2007) in the area of free movement of persons for 2008475, 
all 19 infringement procedures against Member States for their failure to communicate the 
text of the provisions of national law adopted to  transpose the Directive have been closed by 
November 2008, as all Member States have  gradually adopted and communicated the 
transposition measures. 
Progress on Article 228 of the EC Treaty cases has been less satis factory with no cases closed. 
The correct transpositio n of the Directive 2004/38/EC, which overhauled the whole system of 
national rules, will also ensure  compliance with the judgments of the Court in a number of 
Article 228 of the EC Treaty cases. 
Concerning cases raising issues of principle or having particularly far reaching negative 
impact for citizens, the Commission actively purs ued a number of such issues. In February 
2009, 62 cases concerning the Irish rules requir ing third country family members to be 
lawfully resident in another Member State be fore arriving in Ireland, which have been ruled 
contrary to Community law by the Court on 28 July 2008476 and immediate amendment of the 
rules by the Irish authorities, were closed. 
15.6.3.  Evaluation based on the current situation 
Priorities set in the previous Annual Report ha ve proven adequate to allow the Commission to 
focus its efforts in 2008 on the most important  areas. Crucially, all Member States have 
completed transposition of the Directive by th e end of 2008 and the legal situation of EU 
citizens has therefore improved. 
However, despite the efforts of the Commission, the situation in the ar ea of free movement of 
persons remains serious. The report on the application of Directive 2004/38/EC477 concluded 
that the overall transposition of  the Directive was rather disa ppointing. Not one Member State 
has transposed the Directive effectively and corre ctly in its entirety. Not one Article of the 
Directive has been transposed effectively and correctly by all Member States. On the other 
hand, Member States in some areas adopted tran sposition measures that are more favourable 
to EU citizens and their family member s than required by th e Directive itself. 
To address the unsatisfactory transposition, th e Commission will also continue working at 
technical level with the Member States. In September 2008 the Commission created a group 
of experts from Member States to identify difficu lties and to clarify issues of interpretation of 
the Directive. Two meetings of the group of expe rts identified a number of  issues that require 
further discussion and clarificati on, especially as regards the issu es of criminality and abuse. 
A questionnaire was prepared to understand th e concerns of the Memb er States on the ground, 
and to collect statistical data and best practi ce. The group will continue to meet on a regular 
basis.  
                                                 
475  COM(2008) 777 final 
476 Judgment of the Court of 25 July 2008 in case C-127/08 Metock and others  (not yet published). 
477 COM(2008) 840/3 
EN 355   EN The outlook for 2009 and beyond is not optimistic. The Commission is already in contact with 
Member States to address the transposition of the Directive in Member States as around one 
quarter of the provisions of th e Directive have not been corre ctly or fully transposed. The 
failure to transpose certain provisions at all or in part is producin g situations of legal 
uncertainty which may result in the adoption of legislative or administrative solutions that 
could impair the rights of EU c itizens and their family members. 
15.6.4.  Evaluation results: priorities 
Priorities for 2009 and beyond must be slightly changed compared to those for the previous 
period as all non-communication infringement s have been meanwhile closed. The main 
emphasis in the next years will be to commence infringement proceedings for non-
conformity. Priority will be also assigned to Article 228 of the EC Treaty cases and cases 
raising issues of principle or having particul arly far reaching negativ e impact for citizens. 
15.6.5.  Evaluation results: planned action (2009 and beyond) 
In 2009 and the following years, the Commission will step up its efforts to ensure that the 
Directive is correctly transposed and implemen ted across the EU. In or der to achieve this 
result, the Commission will use fully its pow ers under the Treaty and launch infringement 
proceedings when necessary. 
The Commission will continue working at techni cal level with the Member States in the 
group of experts. 
The Commission has offered information and assistance to both Member States and EU 
citizens by issuing communication478 on guidance for better trans position and application of 
Directive 2004/38/EC which prov ided guidance as toa number of issues identified as 
problematic in transposition or a pplication, such as expulsions a nd fight against abuse, may be 
resolved. 
The Commission will continue to inform EU c itizens about their rights under the Directive. 
To this end, the Commission will continue to treat provision of information on the Directive 
as a priority and will continue  to distribute a s implified guide for EU citizens and make the 
best use of the Internet. 
The Commission will encourage and support Member States to  launch awareness-raising 
campaigns to inform EU citizens of their rights under Article 34 of the Directive. 
15.6.6.  Summary 
Free movement of persons const itutes one of th e fundamental freedoms of the internal market, 
to the benefit of EU citizens, of the Member States and of the competitiveness of European economy. In the first days of the European project, only workers benefited from free 
movement. Over time, this right was extended to  all EU citizens. Citizenship of the Union 
confers on every EU citizen a pr imary and individual right to m ove and reside freely in the 
                                                
 
478  COM(2009)313 final of 2 July 2009 
EN 356   EN EU (Article 18 of the EC Treaty). The details of this right are to be found in Directive 
2004/38/EC which codified the existing legisl ation and case-law in the area of free 
movement, and simplified it in the intere st of reader-friendliness and clarity. 
Despite the importance of the fundamental and personal right of EU citizens to move and 
reside freely, the transposition of the Directive in Member States is not satisfactory, as the 
Commission’s report on the application of the Directive has found. In the coming years, the 
Commission will step up its efforts to ensure th at the Directive is correctly transposed and 
implemented across the EU. It will not shy away  from using infringement proceedings, where 
necessary. The Commission will continue to work  together closely with Member States at 
technical level to provide guidance as to how  resolve more problematic issues of free 
movement. This, together with intensified provision of information, should bring real 
improvements to EU citizens in the near future. 
15.7. Citizenship 
15.7.1.  Current position: ge neral introduction 
Article 19 of the EC Treaty grants the right to EU citizens to vote and to stand as a candidate 
in municipal and European elections in the Me mber State where they reside, without holding 
the nationality of that State. These rights were put into effect by Directive 1993/109/EC479 as 
regards European Parliament el ections and Directive 94/80/EC480 as regards municipal 
elections. Directive 1994/80 was modified by Directive 1996/30/EC481 and Directive 
2006/106/EC482 in view of consecutive enlargements of the Union. 
15.7.2.  Current position – report on work done in 2008 
In 2008 the Commission continued to deal wi th a substantial number of enquiries and 
complaints concerning citizenship and electoral rights of the EU citizens: 80 received in 2008 
(49 on electoral rights and 31 on citizenship).  There were 18 written EP questions and 3 
petitions in this area in 2008. 
Concerning implementation of pr iorities established in the 25th Annual Report on  the Control 
of Application of Community la w (2007) in the area of the Eur opean citizenship, all but one 
of the infringement procedures against Member  States for their failure to communicate the 
text of the provisions of nati onal law adopted to transpose th e Directives in the municipal 
elections have been closed by March 2009483. Since no further infringement proceedings had 
                                                 
479 Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for the exercise 
of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the 
Union residing in a Member State of which they are not nationals. 
480  Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the 
right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a 
Member State of which they are not nationals 
481  Council Directive 96/30/EC of 13 May 1996 amending Directive 94/80/EC 
482  Council Directive 2006/106/EC of 20 November 2006 adapting Directive 94/80/EC 
483 Infringement proceedings for non-communication of transposing measures of Directive 2006/106 were 
closed in June 2008 (Romania), in March 2009 (Lithuania and the Czech Republic); infringement 
proceedings for non communicating transposition measures of Directive 94/80 were closed in May 
2008 (Bulgaria, Romania). 
EN 357   EN to be opened in 2008, there was only one pr oceeding open in that area on 31 March 2009 
(three proceedings were  open on 1 January 2009). 
An important activity in the field of Commun ity legislation in electoral matters was the 
adoption of a compliance study carried out by  an external company which assessed the 
compatibility of the legislation of 12 new Member  States with the Directives in the electoral 
field. This compatibility study also  covers the implementation in the national legislation of all 
Member States of the Act of 1976484 on the election of representatives of the European 
Parliament as amended by Counc il Decision 2002/772/EC, Euratom485, which lays down the 
common principles for the Member States in the organisation of the European Parliament 
elections. 
15.7.3.  Evaluation based on the current situation 
Essentially, all Member States transposed the Community legislation in electoral matters and 
no infringement proceedings for incorrect or incomplete transposition were open on 1 January 2009. Therefore, the situation in the field of th e electoral rights of EU citizens can be 
considered satisfactory. 
In 2008 the Commission worked closely with  the Member States to ensure the 
implementation of Directive 93/109/EC in the context of the 2009 European elections. 
Implementation of the Directive in  these elections will also be assessed in the post-election 
report by the Commission. 
The compatibility study prepared in 2008 will serve as a tool for the Commission in the 
assessment and consequent actions taken to ensure the correct and complete transposition of Community law in the national legislations. The Commission will extend the assessment of 
compatibility so as to also cover the checkin g whether the national legislations allow EU 
citizens from other Member States to join politi cal parties in their Member State of residence, 
under the same conditions as the nationals. 
15.7.4.  Evaluation results: priorities 
Priorities for 2009 and beyond must be slightly changed compared to those for the previous 
period as all but one of the non-communication infringements have been closed. The main 
emphasis in the coming years will be to ensure  conformity of national legislation of the new 
Member States with Directives 93/109/EC (par ticipation of EU c itizens in European 
elections) and Directive 94/80/EC (participation of EU citi zens in municipal elections), as 
well as conformity across the EU member stat es with the 1976 Act on the elections of the 
representatives of the European Parliament
486. 
                                                 
484 The Act is annexed to Decision 76/787/ECSC, EEC, Euratom of 20 September 1976 (OJ L 278, 
8.10.1976). 
485 OJ L 283, 21.10.2002. 
486  Act concerning the election of repres entatives of the European Parliame nt by direct universal suffrage, 
annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976-  OJ L 278, 8.10.1976 
EN 358   EN 15.7.5.  Evaluation results: planned action (2009 and beyond) 
In 2009 and the following years, the Commission will step up its efforts to ensure that the 
instruments in electoral matters are correctly  transposed and implem ented. The Commission 
will continue working at a technical level with the Member States in the group of experts and 
launch infringement proceedings when necessary. 
Efforts will continue to raise awareness am ong EU citizens of their electoral rights. 
15.7.6.  Summary 
Electoral rights of EU citizens accompany thei r right to free movement: Community law in 
the electoral field grants the right to EU citizens to participate in municipal and European elections in the Member State where they reside  without holding the nationality of that State 
(Article 19 of the EC Treaty). Detailed arrangeme nts for the exercise of these rights are to be 
found in Directive 94/80/EC with regard to m unicipal elections and in  Directive 93/109/EC 
with regard to European elect ions. The Act of 1976 on the election of representatives of the 
European Parliament as amended by C ouncil Decision 2002/772/EC, Euratom lays down 
common principles for Member Sates in th e organisation of the European elections. 
Transposition of Community law in electoral  matters can be considered satisfactory. 
However, over the coming years the Commi ssion should focus on checking and ensuring 
correct transposition and implementations of Dir ectives 93/109/EC with regard to European 
elections and 94/80/EC with rega rd to municipal elections, especially in the 12 new Member 
States that will need close work at technical  level with the Member States and use of 
infringement proceedings, where necessary. Activities for improving awareness of the 
electoral rights of EU citizens will be carried on. 
15.8. Fundamental rights 
15.8.1.  Current position: ge neral introduction 
Under the Treaty establishing the European Community and the Treaty on European Union, 
the European Commission has no general powers to intervene in individual  cases of violations 
of fundamental rights.  
It can do so only if an issue of Europ ean Community law is involved. The Commission 
ensures that fundamental rights are protected in the applicati on of Community law within the 
material scope of the legislative inst ruments they are responsible for.  
The Commission has no competence to follo w up complaints which have no link with 
Community law. However, EU citizens are not awar e of this fine distinction and continue to 
rely on the Commission to assist them even wh ere there is no link with  Community law. This 
area falls outside the scope of  the Annual Reports on the Control of Application of 
Community law but it represents an important  dossier of relations with EU citizens. 
EN 359   EN 15.8.2.  Current position – report on work done in 2008 
In 2008 the Commission received a number of individual letter s and parliamentary questions 
as well as petitions concerni ng alleged violations  of fundamental rights by Member States: 
approximately 800 letters (no change in comparison with 2007) and more than 153 
parliamentary questions and petitions (compa red with 120 received in 2007). Most of the 
individual cases do not invol ve Community law and fall outside the powers of the 
Commission to control the appl ication of Community law. 
The great number of letters received by the Commission re veals a strong interest and 
expectation from citizens on funda mental rights in Member States. It also reveals that more 
information is needed to explain that the Co mmission has no general powers to intervene in 
cases of violations of fundament al rights and that it can do so only if an issue of Community 
law is involved. 
15.9. Protection of personal data 
15.9.1.  Current position – report on work done in 2008 
The Commission continued the monitoring of th e correct applicati on of the Directive 
95/46/EC on data protection487, the main piece of legislation for this area. It continued to find 
pro-active solutions outside or  in parallel with the infr ingement procedure through the 
'structured dialogue' organised wi th Member States to discuss mainly infringement cases and 
the recently implemented EU Pilot scheme. Howe ver, in some cases it was not possible to 
reach agreement and two requests for preliminary ruling important for a number of infringements were referred to the European C ourt of Justice (one case against Germany (C-
524/06) and one case against Finland (C-73/07 )), for which judgments were given on 16 
December 2009 confirming the ar guments of the Commission. 
74 enquiries and 20 letters and requests were r eceived. There were a total of 7 petitions in 
2008. 
In 2008 there were 3 new complaints registered as infringements. The total number of cases 
was 16. There were a higher number of cases referri ng to the incorrect app lication of the data 
protection directive and the re st to the non-conformity.  
15.9.2.  Evaluation based on the current situation 
The situation and volume of work in 2008 was stable regarding the infringement cases, 
although the number of enquiries  has doubled and the number of complaints has decreased, 
compared to 2007. 
No prioritisation wa s applied in 2007. 
                                                
 
487 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 – O.J L 
281 , 23/11/1995 P. 0031 - 0050  
EN 360   EN 15.9.3.  Evaluation results: priorities and planned action (2009 and beyond) 
Due to the relatively small number of cases in  the field of data protection, no prioritisation 
was applied to them. 
The Commission will continue the monitoring of the correct application of the Data 
Protection Direc tive 95/46/EC. 
15.10.  Judicial cooperation in civil matters 
15.10.1.  Current position – report on work done in 2008 
All Member States have notified their nationa l legislation implemen ting Directive 2003/8 on 
legal aid488.  
Regarding Directive 2004/80 relating to compensation to crime victims489, Greece is the only 
Member State failing to comply with its transposition and communication obligation, the 
infringement having reached an advanced stage490.  
In December 2008 the Commission received the fi nal report on a study on the application of 
Directive 2004/80/EC relating to  compensation to crime victim s. The objective of the study 
was to assess the current stage of implementa tion of Directive 2004/80/EC in all EU Member 
States. The study served as a basis for a Commission's report adopted in April 2009. 
Further, in November 2008 the Commission received the final report on a study on the 
compensation of victims of cross-border road traffic accidents in the EU. The study consists 
of comparison of national prac tices, analysis of problems and evaluation of options for 
improving the position of cross-border victims. It enables the Commission to assess if Community law – i.e. motor insurance directiv es and Regulation Rome II ensure effective 
access to compensation for EU residents involved in road traffic accidents in another Member 
State (“visiting victims”).  
In view of ensuring the correct  application of Regulation 2201/2003
491 (the 'Brussels II a 
Regulation’) concerning jurisdic tion and the recognition and the enforcement of judgments in 
matrimonial matters and the matters of parental  responsibility, a first request for an urgent 
preliminary ruling (PPU) on a case of parental child abduction was submitted to the Court of 
Justice in May 2008 (case C-195/08 PPU). The Court,  in its answers to the referral questions, 
confirmed that opposition to the decision ordering the return of the child was not permitted by 
                                                 
488 Council Directive 2003/8 of 27 January 2003 to im prove access to justice in cr oss-border disputes by 
establishing minimum common rules relating to legal aid for such disputes, OJ L 26, 31.1.2003, p. 41. 
489 Council Directive 2004/80 of 29 April 2004 rela ting to compensation to crime victims, OJ L 261, 
6.8.2004, p. 15. 
490 Greece was ruled against by the Court on 18 July 2007  (Case C-2007/026) for fa ilure to notify measures 
transposing the Directive. On 23 September 2008 the Commission sent a reasoned opinion under the 
Article 228 of the EC Treaty to Greece. Greece and still has not complied with  the Court's judgment. 
491  Regulation 2201/2003of 27 November 2003 concerning jurisdiction and the recognition and 
enforcement of judgments in matrimonial matters a nd the matters of parental responsibility, repealing 
Regulation (EC) No 1347/2000 - OJ L 338, 23.12.2003  
EN 361   EN Regulation 2201/2003 and that it wa s for the competent court in  the country to which the 
child had been abducted to allow th e immediate return of the child. 
Furthermore, one Member State brought a case before the Commission under Art. 227 of the 
EC Treaty in October 2008, alleging that anot her Member State had breached Art.10 and 249 
of the EC Treaty by virtue of the national Court’s incorrect application of Regulation 
2201/2003. The Commission issued a reasoned opinion ex art. 227492 in January 2009, 
whereby it did not find any infringement. 
A comprehensive impact assessment was undertaken for a future proposal on successions and 
wills. 
15.10.2.  Evaluation based on the current situation 
The number of formal infringements increased from 12 in 2007 to 18 in 2008. This is due to 
the entry into force of new instruments – mainly the crime victims' directive (3 cases) and the number of disputes on parent al responsibility (3 cases). 
In 2008 a special attention was paid to the co rrect application of Regulation 2201/2003 (the 
'Brussels II a Regulation’). The Regulation ensure s that children can maintain regular contacts 
with both parents following a se paration and provides clear rule s to deter parental child 
abduction throughout the EU. 
The number of preliminary rulings in the area of family law is expected to increase with the 
new urgent preliminary ruling procedure available since 1 March 2008. The new procedure 
enables the Court of Justice to deal much more quickly with issues relating to the area of 
freedom, security and justice. Such an issue may arise, for example, in proceedings concerning parental responsibility if the ju risdiction under Community law of the national 
court hearing the case depends on the answer to  the question referred for a preliminary ruling. 
Most interestingly as mentioned above, the fi rst ever urgent preliminary ruling procedure 
required the Court to clarify rules in the Brussels IIa Regulation relating to the return of a child wrongfully retained in another EU Memb er State (judgment of the Court of 11 July 
2008 in case C-195/08 PPU Rinau ). 
Furthermore, in October 2008 there was a rare  case of application of the procedure under 
Article 227 of the EC Treaty between two Memb er States for misapplication of Regulation 
2201/2003 Brussels II a. 
The current situation with a restricted role of the Court of Justice in interpreting the family 
law acquis  would change with the coming into fo rce of the Lisbon Treaty, which abrogates 
Article 68 EC. 
Other objectives fo r the Commission: 
                                                
 
492C(2009)164  
EN 362   EN • Increased efforts to improve the knowledge of the family law acquis  through further 
training of practitioners (judges,  central authorities and lawyer s) as well to promote the use 
of mediation in the settlement of  family disputes to prevent that these disputes are brought 
before the courts. 
• If a problem of interpretation arises with  one of the family law instruments, the 
Commission could seize the Court of Justice und er Article 68(3) of the Treaty and request 
a ruling. 
Following the entry into force of Regulati on 1896/2006 establishing a European Payment 
Order Procedure493 and Regulation 861/2007 establishing a European Small Claims 
Procedure494, the Commission has published the refe rences of assisting authorities 
communicated by Member States on the webs ite of the European Judicial Atlas.495 
The Commission also published l eaflets in all languages about  the European Judicial 
Network's tasks and contact points. The aim is to facilitate requests for judicial cooperation 
between Member States (e.g. to pr ovide assistance with the servic e of documents or the taking 
of evidence) and to make it easier to ensure th at Community legislation is properly applied in 
practice. Further, a Practice Guide on the Eu ropean Enforcement Order was published in 
December 2008. 
The Directive 2008/52/EC496 of the European Parliament and the Council on certain aspects 
of mediation in civil and commercial matte rs was adopted on 23 April 2008. The Directive 
provides in particular that Member States sha ll notify the names of competent authorities for 
the progressive implementation of th e Directive on a th ree-year period. 
Around 12 petitions per year ar e received in this field. 
15.10.3.  Evaluation results: priorities 
The proper application of existing legisl ation remains a focus on attention in 2009. 
The correct implementation of Regulation 2201/2 003 Brussels IIa remains important. Indeed, 
the prevention of parental child abduction is a priority for furt her EU action and an important 
part of the overall Commission strategy to promote the rights of the child. 
In 2008 a preliminary study for preparing the re port on the applicati on of Regulation 44/2001 
(Brussels I) 497 was finalised. The Commission's report 498 adopted in April 2009 evaluated the 
application of Brussels I in order to highlight  problems in the application and ways in which 
the operation of the Regulation may be improved. 
                                                 
493 (OJ L 399 of 30 December 2006, p.1). 
494 (OJ L 199 of 31 July 2007, p. 1). 
495 http://ec.europa.eu/justice_home/judicialatlascivil. 
496  OJ L 136, 24.5.2008  
497  Council Regulation (EC) No 44/2001 of 22 D ecember 2000 on jurisdicti on and the recognition and 
enforcement of judgments in civil and commercial matters-  
OJ L 012 16/01/2001 P. 0001 - 0023  
498 COM/2009/0174 
EN 363   EN The European Judicial Network in civil a nd commercial matters (EJN) proved to be an 
important tool in supporting the correct appl ication of Community Law. Managing the EJN 
continued in 2008, including information and communication activities. The Commission has 
presented in June 2008 a proposal amending the decision creating the EJN with the aim to 
enlarging access to all judicial professions and thereby make it  the key instrument for civil 
judicial cooperation. Formal a doption is planned in June 2009. 
Pursuant to a Communication499 in 2008, the Commission establ ished a Justice Forum. The 
new forum provides a platform fo r regular dialogue about policie s and practice in the area of 
justice as well as contributing to strengthening mutual trust, improving mutual recognition and access to justice. 
As for infringement cases, their limited numb er does not require pr ioritization of their 
treatment. The most common cases concern Di rective 2004/80 relating  to compensation to 
crime victims and Regulation 2201/ 2003 Brussels II a. Other type s of infringements concern 
incorrect application of Regula tion Brussels I and of the Regul ation on service of documents.  
Besides infringements cases, th e Commission is contributing to  assessment of preliminary 
questions to the Court of Justice (around ten questions raised in 2008 on civil judicial 
cooperation issues). 
15.10.4.  Evaluation results: planned action (2009 and beyond) 
In addition to the Report on the application of Regulation 44/2001 on jurisdiction, recognition 
and enforcement of judgments in civil and co mmercial matters (Brussels I),the Commission 
adopted a Report on the application of the Di rective 2004/80/EC relating to compensation to 
crime victims. 
A study will be launched in 2009 in view of assessing the imple mentation of the Legal Aid 
Directive. 
In family law, the correct implementation of the Regulation 2201/2003 Brussels II a will 
remain a priority in the forthcoming years.  
Furthermore, a new Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, 
recognition and enforcement of decisions and c ooperation in matters relating to maintenance 
obligations was adopted on 18 D ecember 2008. It will facilitate the recovery of maintenance 
abroad. 
In 2009 the development of websites of the EJN a nd of the Judicial Atlas will continue in 
order to ensure the continuity of our action and to comply with the new strategy on E-Justice 
and the creation of a European judicial electronic Portal. The Commission is co-financing 
several pilot projects, such as electronic ex changes for the European Payment Order or 
Insolvency Registers.  
                                                
 
499 Communication from the Commission on the creation of a Forum for discussing EU justice policies and 
practice, COM/2008/0038 final 
EN 364   EN In 2008 three important Regulations entered into force – respectively Regulation 1393/2007 
on service of documents500, Regulation 1896/2006 establishing a European Payment Order 
Procedure501 and Regulation 861/2007 establishing a European Small Claims Procedure502. 
The Commission will continue taking all necessary measures to support the implementation of these Regulations, particularly by publishing the references of assisting Authorities to be 
communicated by Member States. 
15.10.5.  Summary 
Directive 2003/8 on legal aid
503 has been transposed in all Member States. The transposition 
of Directive 2004/80 on compensation of crim e victims has nearly been completed. The 
Commission continued examining infringements concerning incorrect application of the 
Regulations in the civil justice field.  
The entry into force of the Mediation Direc tive and of three Regulations on service of 
documents504, payment order505 and small claims506 require Member States to notify specific 
information to the Commission. The Commi ssion will therefore monitor the correct 
notifications ad publish them in  view of a smooth implementati on of these instruments at the 
time of application. 
Judicial cooperation in civil ma tters will be improved and enhanced thanks to the revision of 
the functioning of the European Judicial Network in civil and commercial matters and the creation of the Justice Forum. 
As for infringement cases, their limited numb er does not require pr ioritization of their 
treatment. The most common cases concern Di rective 2004/80 relating  to compensation to 
crime victims and Regulation 2201/2003 Brussels II a on parental responsibility. Other types 
of infringements concern incorrect application of Regulation Brussels I and of the Regulation 
on service of documents.  
                                                
 
500 Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the 
service in the Member States of judicial and extrajudicial documents in civil or commercial matters 
(service of documents), and repealing Council Regulation (EC) No 1348/2000 
501 Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating 
a European order for payment procedure - Official Journal L 399 , 30/12/2006 P. 0001 - 0032  
502 Regulation (EC) No 861/2007  of the European Parliament and of the Council of 11 July 2007 establishing a 
European small claims procedure.  
503 Council Directive 2002/8/EC of 27 January 2003 to improve acces s to justice in cross-border 
disputes by establishing minimum common rules relating to legal aid for such disputes- OJ L 26, 
31.1.2003, p. 41–47  
504 Council regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of 
judicial and extrajudici al documents in civil or commercial matters- OJ L 160, 30.6.2000, p. 37–
52  
505 Regulation (EC) No 1896/2006  of the European Parliament and of th e Council of 12 December 2006 creating 
a European order for payment procedure.  
506 Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 
establishing a European Small Claims Procedure- OJ L 199, 31.7.2007, p. 1–22  
 
EN 365   EN In 2008 special attention was paid to the correct application of the Regulation 2201/2003 
Brussels II a. Indeed, the prevention of parent al child abduction is a priority for further EU 
action and an important part of the overall Co mmission strategy to promote the rights of the 
child, and will remain a priority in 2009 and beyond.  
Around 12 EP petitions per year are received in this field. 
15.11.  Security 
On 15 September 2007 the Member States should to have brought into force legal instruments 
to comply with the Data Retention Directiv e 2006/24/EC. All but 4 Member States have 
transposed the directive and 18 Member States507 invoked the clause of  Article 15(3) that 
allowed them to postpone the application of th e Directive to the rete ntion of communications 
data relating to Internet A ccess, Internet telepho ny and Internet e-mail until 15 March 2009.  
On 23 September 2008 the Commission addres sed reasoned opinions for non-communication 
to the following Member States: Austria, Gree ce, Lithuania, Netherlands, Sweden, Romania 
and Poland that had all invoked the clause of Article 15(3), as well as Ireland that had not 
invoked that clause. Ireland had brought an ac tion for annulment of the Directive (Case C-
301/06) on the ground that it should have been adopt ed with a third pillar legal basis (Title VI 
TEU). The ECJ dismissed the action in  its judgment of 10 February 2009. 
Having regard to that judgment , the intention of the Commission is to seize the Court to 
pursue the action against those Member States th at failed to notify legislation. Furthermore, 
the Commission has addressed so-called pre-226 le tters to a number of Member States. These 
letters request those Member States to clarify certain aspects of the notified legislation to allow the Commission to assess whether the Directive was correctly transposed. 
Article 14 stipulates that no later than 15 Se ptember 2010, the Commission shall submit to the 
European Parliament and the Council an evaluati on of the application of this Directive and its 
impact on economic operators and consumers. The state of notifications will also been taken 
on board in that assessment. 
15.12.  List of legal measures in force 
See Annex I for the list of releva nt Treaty provisions, Regulation a nd Directives in force to be 
monitored by Commission services in the sector  of Justice, Freedom and Security, divided by 
sector. Please note that  the list does not incl ude legal instruments a dopted under Title VI of 
the EU Treaty. 
A comprehensive list of the acquis in force in this area, is publicly available on the EUROPA 
website
508.  
                                                 
507 The Netherlands, Austria, Est onia, United Kingdom, Cyprus, Greece , Luxemburg, Slovenia, Sweden, 
Lithuania, Latvia, Czech Republic, Belgium, Pola nd, Finland, Germany a nd upon accession Bulgaria 
and Romania. 
508 http://ec.europa.eu/justice_home/doc_centre/intro/doc_intro_en.htm. 
EN 366   EN As a follow-up of the Hague Programme, it has become customary to adopt a yearly 
Scoreboard Plus, the last  one published on 2 July 2008509. In addition to the monitoring of the 
adoption process, this communication examines  national implementation of policies in the 
Justice, Freedom and Security fields. 
16. TRADE 
Trade policy is governed by Article 133 of th e EC Treaty. The bulk  of the Community 
legislation in this field takes the form of re gulations, for example, the basic anti-dumping and 
countervailing duty regulations, th e Generalised System of Pref erences Regulation, the Trade 
Barriers Regulation and the Im port and Export Regulations.510 There are only two directives. 
These directives are Council Di rective 98/29/EC of 7 May 1998 on harmonisation of the main 
provisions concerning export cred it insurance for transactions with medium and long-term 
cover and Council Directive 84/ 568/EEC of 27 November 1984 c oncerning the reciprocal 
obligations of export cred it insurance organizations  of the Member States  acting on behalf of 
the State or with its support, or  of public departments acting in place of such organizations, in 
the case of joint guarantees for a contract invol ving one or more subcontracts in one or more 
Member States of the European Communities. In 2007/2008 the only relevant issue was the 
transposition of these directives by Bulgaria and Romania. The transposition measures have been communicated correctly to the Commissi on and the infringement proceedings which had 
been opened were closed during 2008.  
It is not expected that there wi ll be any significant work required  on the transposition of these 
directives or other pote ntial infringements in 2009. 
17. ENLARGEMENT 
17.1. Current position – Relevant legal instru ments and related work and reporting 
on 2008 
17.1.1.  General introduction 
Enlargement policy is based on Article 49 EU Tr eaty which is not justiciable. However, EC 
agreements with third countries may contain certain rights and obligations which are directly 
applicable under EU law. Violat ion of such provisions by one or more Member States could 
therefore be subject to infringement proceedings. 
                                                
 
509 Communication of 2 July 2008 from the Commission to the Council and the European Parliament – 
Report on the implementation of the Hague programme for 2007 – COM(2008) 373 final. Available on 
JLS EUROPA website http://ec.europa.eu/justice_home/doc_centre/scoreboard_en.htm.  
510 Council Regulation (EC) No 384/96 of 22 Decembe r 1995 on protection agai nst dumped imports from 
countries not members of the European Community as amended; Council Regulation (EC) No 2026/97 
of 6 October 1997 on protection against subsidized imports from countries not members of the European Community as amended; Council Regulation (EC) No 732/2008 of 22 July 2008 applying a 
scheme of generalised tariff preferences for the period from 1 January 2009 to 31 December 2011 as 
amended; Council Regulation (EC) No 3286 /94 of 22 December 1994 laying down Community 
procedures in the field of the common commercial policy in order to  ensure the exercise of the 
Community's rights under international trade rules, in particular those established under the auspices of 
the World Trade Organization as amended; Council Regulation (EC) No 260/2009 of 26 February 2009 
on the common rules for imports and Council Regulation (EEC) No 2603/69 of the Council of 20 
December 1969 establishing common rules for exports. 
EN 367   EN In the field of enlargement, this is in par ticular the case for the 1963 EEC-Turkey Association 
Agreement, its 1970 Additional Protocol an d related Associatio n Council Decisions, 
particularly Decision 1/80. The Stabilisation an d Association Agreements with the former 
Yugoslav Republic of Macedonia (2004), with Croa tia (2005) and Albania (2009) also fall 
into the same category of EC law, partly liable fo r trial in the European Court of Justice as far 
as implementation or application by Member Stat es is concerned. Similar agreements with the 
potential candidate countries M ontenegro, Serbia, as well as Bosnia and Herzegovina, have 
not yet entered into force. 
17.1.2.  Report of work done in 2008 
The Commission receives a lot of correspondence and complaints from citizens related to 
legal acts and agreements in the field of en largement, including financial instruments. 
However, these cases mainly concern alleged viol ation of obligations by the third country or 
other matters not directly related to the appli cation of EC law by Member States. Recourse to 
infringement proceedings is therefore very  limited in the area of enlargement. 
The case concerning workers’ rights on access to  the labour market of Member States under 
Decision 1/80 related to the EEC/Turkey Associ ation Agreement, which was referred to the 
Court in 2006, is still pending. The Commission commented on previous interventions from 
Member States. The question concerned, which is the introduction of higher administrative 
fees for handling residence permit requests from Turkish nationals by one Member State, is in 
parallel the subject of a reference for prel iminary ruling. At the end of 2008 the Court 
organised a hearing on the latter case and may issue its judgment in the near future. The 
EEC/Turkey Association Agreement is also s ubject to a number of other references for 
preliminary rulings, most of them still pending with the Court.  
In 2008, the Commission received ne w complaints related to the application and interpretation 
of certain provisions, including standstill clause s, of the EEC/Turkey Association Agreement, 
which are at present being examined. Other cases, which concern the compatibility of 
mandatory integration exams for Turkish nati onals working in a Member State, or the 
increase of the minimum age of Turkish citizens for issuing residence pe rmits, were subject to 
a thorough analysis and will now be pursued. 
17.2. Evaluation 
Since EU enlargement in 2004 and 2007, the few complaints received  with a view to 
infringement proceedings all concern the application of the EEC/Turkey Association 
Agreement. Taking into account the references to preliminary rulings pending at the Court, 
this confirms that the application and interpre tation of this Association Agreement is still 
subject to a variety of legal arguments with re gard to residence and work of Turkish citizens 
in Member States. Other Stabilisation and As sociation Agreements with Western Balkan 
countries which have entered into force are, so  far, not subject to any infringement case. 
The number of complaints that may lead to infringement cases remains limited and therefore 
does not require additional prioritisation among them. This situation is not likely to change in 
future. 
EN 368   EN 17.3. Evaluation results 
There is only one priority in the area of en largement and that is the application of the 
EEC/Turkey Association Agreement. This pr iority remains unchanged given the limited 
number of cases.  
17.4. Summary 
Infringement procedures in the area of enlarg ement are rare. All pending cases at the Court 
and the Commission concern the alleged viol ation of directly ap plicable provisions, 
particularly standstill clauses, under the EEC/Turkey Association Agreement.  
17.5. Legal measures in force 
EEC-Turkey Association Agreement (1963)  Official Journal No 217 of 29.12.1964. 
18. EUROSTAT 
18.1. Current position- Report on 2008 
In line with the Commission policy on better m onitoring of the application of Community 
law, the Commission services have continued to  work in close partnership with National 
Statistical Institutes managing the application of  the statistical legislation through contacts, 
networks in the various sectors and re gular meetings of national experts.  
Since 2006, several internal Reports have been di scussed within the Commission services to take 
note of the state of play and to recommend possible follow-up actions.  In order to assure a complete 
follow up of compliance with Community statistical  legislation, there are also certain parallel 
systems in place which serve the purpose of assuring fulfilment of the complex 
methodological rules discussed thro ugh cooperation with Member St ates at different sectoral 
statistical Committees and expert Working Groups. 
The most frequently recurring problem concer ns the “delays” in meeting the transmission 
deadlines. 
Nevertheless, the improvement of the overall si tuation can generally be  confirmed. Member 
States in default are making serious efforts to  fully comply when they are challenged at 
suitable level. In most cases, Member States re act positively to reminders. In several cases, a 
solution to the difficulties could be found tha nks to reciprocal collaboration between the 
National Institutes and the Commission services.  
18.2. Legislative changes underway (2008-2012) 
In accordance with Decision 1578/2007/EC on th e Community statistical programme 2008 to 
2012511, compliance monitoring of Community legislation in the field of statistics is a specific 
objective of strategic importance for the medi um to long-term development of Community 
statistics: 
                                                 
511 Decision 1578/2007/EC of the European Parliament and the Co uncil of 11 December 2007 on the 
Community statistical programme 2008 to 2012 - Point 3.2 of Annex I – (OJ L 344, 28.12.2007, p. 15). 
EN 369   EN "The quality of Community statistics compri ses the fundamental requirement of compliance 
with the principles of the Treaty and the se condary legislation. Therefore, a vigorous and 
systematic monitoring of the application of the legislation is  a priority. A global and coherent 
compliance strategy structured around the princi ples of a realistic le gislative policy, the 
obligation of Member States to apply systematically the statistic al legislation and a coherent 
and systematic monitoring of compliance, will be followed.  Close contacts with the competent 
national authorities th roughout all of the phases is par t of the compliance process". 
18.3. Evaluation 
Community statistical legislation is mainly  composed of Regulat ions. The Commission 
services in this area are res ponsible for only 5 Directives.  
Possible difficulties to apply Community statis tical legislation are anticipated and addressed 
when preparing any draft legislative proposal, wh ich is always the result of close cooperation 
with Member States.  
The measures of implementation of the basic acts (as adopted by comitology procedures) are 
prepared and discussed with the Member States.  
It is useful to stress that the obl igations of Member States in th e field of statistics are recurring 
and therefore need constant follow-up. Thanks to continuous collaborat ion with the Member 
States, the Commission services are in a positi on to know beforehand the possible difficulties 
that a Member State could encounter and can try addressing these difficulties in advance 
together with the responsible national statistical authority.  
18.4. Priorities 
The main priority in this area concerns the e fficient co-operation with the Member States to 
improve the quality of Community statistics (accuracy, timeliness and comparability being 
priorities for the ESS).  
The Commission will pursue its policy, based on a comprehensive and coherent approach that 
ensures follow-up and effective control of th e application of stat istical legislation.  
18.5. Planned action 
The objective of having statistics of quality is both an operational objective and a legal 
requirement insofar as Community statistics production must resp ect the principles set out in 
Article 285 of the EC Treaty a nd in Regulation (EC) No 223/2009 of the European Parliament 
and of the Council of 11 Marc h 2009 on European statistics512 as well as in the various 
sectoral legislative instruments.  
In the field of statistics, the Commission w ill continue to monitor the application of 
Community legislation especially through bilate ral meetings and discussions with Member 
States. 
The Commission services will carry out this structured dialogue  with the ambition to ensure 
the full and correct application of statistical le gislation without having to recourse to formal 
infringement proceedings. 
                                                 
512 OJ L 87, 31.3.2009, p. 164 
EN 370   EN Identified as an area in which improvements ar e needed on an ESS-wide scale, the ESS will 
join forces to invest in implementing E SS quality management t ools and guidelines. 
19. PERSONNEL  AND  ADMINISTRATION 
19.1. Current position – Most important legal  instruments and related work and 
reporting on 2008 
19.1.1.  Existing measures in force 
In the field of Personnel and Administration, the Commission must guarantee that Community 
law is correctly applied to the staff of the Co mmunities. To this end, it must ensure that 
legislation and implementing provisions are adop ted by Member States in compliance with the 
Protocol on Privileges a nd Immunities of the European Communities an d the Regulations and 
Rules applicable to offici als and other servants of the European Communities. 
In particular, the following legal texts are applicable: 
Council Regulation (EEC, Euratom, ECSC) No  259/68 of 29 February 1968 and further 
modifications, 
The Protocol on the Privileges and Immunities of EC (PPI), annexed to the Merger Treaty of 
1965, 
Other agreements between the European Co mmission and Member States regarding the 
functioning of the In stitutions' Services. 
19.1.2.  Report of work done in 2008 
In 2008, Commission pursued th e infringement proceedings launc hed in 2007 against Belgium. 
An appeal was lodged with the C ourt of Justice (Case C-132/09) seeking a judgment confirming 
the obligation of Belgium to comply with its undertaking, in applica tion of the Headquarters 
Agreement with the Commission, to subsidise the cost of equi pment for European Schools.  
In another field, but again regarding Belgium, th e Commission considers that the decree of the 
government of Brussels-Capital Region of 12 J une 2003 providing that all construction or 
expansion of office buildings that  exceeds 500m² of floor  surface is subject to the levying of 
urbanism charges ( charges d'urbanisme ) is contrary to the tax exem ption foreseen in Article 3 
of the PPI. Such charges may be clearly qualified as direct taxes and they cannot be deemed as 
proportional charges for public utility services  provided directly to the Institutions. 
In coordination with all the other Institutions ba sed in Brussels, the Commission has contested 
the legality of these charges launching an infrin gement procedure in Oc tober 2007, which is 
going on. 
After the adhesion of new Member States, th e Commission has continued to reach further 
arrangements for the transfer of pension rights of staff who had originally worked and acquired 
pension rights in Member States. This ongoing process has had a number of successes and some 
of the competent authorities ha ve already fulfilled their oblig ations in this regard.  
EN 371   EN 19.2. Evaluation based on the current situation  
The measures which may require specific implementation / transposition work 
The Commission closely follows the evolution of  the policy in Member States as regards 
European Schools. The rules governing their establishment require not only that new structures be built and adapted to accommodate new needs in  due time, but also that the schools are run 
along efficient lines. 
However, as regards the transfer of pension rights , taking into account the direct applicability of 
the Staff Regulations, a refusal or delay by Member  States to come to an agreement regarding 
the implementation of the necessary procedures fo r such transfers, coul d lead the Commission 
to examine the launch of infringement proceedi ngs against those Member  States. Regarding the 
cooperation with the Member states, this  has not been necessary until now.  
In any case, the Commission contin ues to seek pro-active solutions  outside or in parallel with 
the infringement procedure under Article 226 of the EC Treaty. Contacts are regularly 
organised between the institutio n's administration and the comp etent authorities of Member 
States which serve to anticipate and resolve qu estions which could otherwise lead to such 
proceedings.  
20. BUDGET 
20.1. Current position – relevant legal instru ments and related work and reporting 
on 2008 
20.1.1.  Existing measures in force 
The existing legal measures in the budgetary area relate to the procedure for the financing of 
the EU budget through three main own resources:  traditional own reso urces, the VAT-based 
own resource and the complementary resource based on Member States ' GNI. In particular, 
the following texts are applicable: 
Article 269 EC,  Council Decision 2007/436/EC, Euratom on the sy stem of the Communities' own resources. 
Council Regulation (EC, Euratom) No 1150/2 000 implementing the above decision, in its 
version of Council Regulation EC, Euratom No  105/2009 applicable from January 1, 2007. 
Council Regulation (EEC, Euratom) No 1553/89 on the definitive uniform arrangements for 
the collection of own resources accruing from value added tax. 
Additionally, budgetary rece ipts are obtained under Articles 3 and 4 of the Protocol on the 
Privileges and Immunities of EC (PPI), annexed to the Merger Treaty of 1965. 
20.1.2.  Report of work done in 2008 
 Main 2008 activities 
The area of Own resources is based upon dire ctly applicable Council Regulations and 
Decisions. The main problems with Member States  stem from different interpretation of the 
EN 372   EN budgetary legislation. One prio rity of the Commission in this  respect is the prevention  of 
irregularities. This is mainly realised vi a control activities made by the Commission's 
inspectors and their legal a nd accounting follow-up, thus ensu ring the correct functioning of 
the Community own resources system and the PP I. If, however, anomalies are detected, they 
are closely followed-up in view of their early settlement. This is the main reason why the 
number of infringement files to be managed (ca. 30 on average) is rather small. Another 
reason is that under Art. 11 of Regulation 1150/2 000, default interest is due when amounts of 
Own Resources are paid belatedly. The amount of interest may often exceed the principal 
claim depending upon the length of the delay. 
In 2008, the Commission services detected 1 17 anomalies in the area of traditional own 
resources (of which 99 in the course of on-the- spot inspections) and set up 51 reservations in 
the area of VAT/GNI (= 41 VAT+ 10 GNI). Most of the newly detected anomalies could be 
solved at an initial stage in bilateral discus sions with Member States  or in the Advisory 
Committee on Own Resources. 
Regarding infringements, the principal activ ities in 2008 concerned the follow-up of earlier 
Court decisions and the contribution to pending cases. The outcome of the group of 9 infringement procedures lodged to the ECJ concerning duty-free military importations for 
which the oral procedure took place in late au tumn 2008 will be of juridical importance. The 
Court will have to determine in its judgments wh ether, and to what exte nt, it is possible for 
Member States to invoke Art.296 of the EC-T reaty for not applying Community policies on 
grounds of national security.  
Amongst the other infringement files managed in  2008, one case received special priority due 
to its systemic and institutional importanc e: Case No. 2008/2152 regards a request, under 
Article 248 EC, submitted to the German authorities by the Eur opean Court of Auditors, for 
auditing the administrative cooperation of Member States in the area of VAT as laid down in 
Council Regulation (EC) No 1798/2003 and the refusal of the German Ministry of Finance to 
allow for such an audit claiming that ther e was no appropriate legal basis for it.  
Where files - as it is usually the case - relate to the recovery of established amounts, it results 
from budgetary Community rules that any infr ingement to financing rules by one Member 
State results in a corresponding increase of own re sources to be made available by the other 
Member States. Thus the Commission, as guardia n of the Treaties, has hardly any discretion 
on whether to start infringeme nt proceedings, and it ma y not close recovery-related 
infringement actions only for reasons of polit ical opportunity. Under th e current legislative 
framework, the waiving of financial claims vis-à-vis Member States is impossible. 
The context mentioned above does not exclude the possibility to pr ioritize infringements 
according to their gravity and their impact on th e budget and to take legal action only if it is 
not possible to settle the issues in bilateral c ontacts and discussions with  Member States in the 
Advisory Committee for Own Resources.  
20.1.3.  Volume of infringements work and petitions 
On 1 January 2008, there were 30 open infringement files in the budgetary area. 
So far, the Commission services in this area ha ve been dealing with only one complaint file, 
transferred from another service of the Commis sion. All other cases had been detected by the 
Commission inspectors or communicated by other services of the Commission. 
EN 373   EN 20.2. Evaluation 
As already underlined in the previous Annua l Report, Member States generally apply 
correctly the legislation concerning the Co mmunities' own resources and the PPI. They 
contribute timely to the EU budget. The few infringements detected by the Commission' 
controllers do not reflect any systemic problem s in the application of the Community law. 
The Commission will continue to ensure that  the Communities' own resources are timely 
made available, in full respect of the Community  law and that the recove ry actions concerning 
other amounts due by the Member States are efficient. 
EN 374   EN ANNEX I - LIST OF MEASURES IN FORCE AND OTHER RELEVANT INSTRUMENTS 
REFERRED TO IN THE TEXT OF THE DOCUMENT  
I. ENTERPRISE  AND  INDUSTRY 
I.1. Pharmaceuticals 
In the pharmaceutical sector, the main m easures monitored by the Commission are: 
• Regulation (EC) No 726/2004 of the European Parliament and of th e Council, laying down 
Community procedures for the authorisation and supervision of me dicinal products for 
human and veterinary use and establishi ng a European Medicines Agency (EMEA); 
• Directive 2001/83/EC of the European Parlia ment and of the Council on the Community 
code relating to medicinal products for human use; 
• Directive 2001/20/EC of the European Parlia ment and of the Council on clinical trials, 
complemented by Commission Direc tives 2003/94/EC and 2005/28/EC;  
• Regulation (EC) No 141/2000 of the European  Parliament and of the Council on orphan 
medicinal products, complemented by Co mmission Regulation (EC) No 847/2000; 
• Regulation (EC) No 1901/2006 of the European  Parliament and of the Council on 
medicinal products for paediatric use; 
• Regulation (EC) No 1394/2007 of the European Parliament and of the Council on advance 
therapy medicinal products; 
• Directive 2001/82/EC of the European Parlia ment and of the Council on the Community 
code relating to veterinary medicinal products; 
Regulation (EEC) 2377/90 on maximum residu e limits of veterinary medicinal 
products in foodstuffs of animal origin. 
II.  EMPLOYMENT,  SOCIAL  AFFAIRS  AND  EQUAL  OPPORTUNITIES 
List of measures in force 
II.1. Free movement of workers and coordi nation of social security schemes 
II.1.1. Free movement of workers 
Art. 39 TEC 
Regulation (EEC) No 1612/68 of the C ouncil of 15 October 1968 on freedom of 
movement for workers within the Community. 
EN 375   EN Directive 2004/38/EC of the European Pa rliament and of the Council of 29 April 
2004 on the right of citizens of the Union and their family members to move and 
reside freely within the territory of the Member States.  
II.1.2 Social security  
Article 42 TEC 
Regulation (EEC) No 1408/71 of the Counc il of 14 June 1971 on the application of 
social security schemes to employed pers ons, self-employed persons and to the 
members of their families moving within the Community. 
Regulation (EC) No 859/2003 of th e Council of 14 Ma y 2003 extending the 
provisions of Regulation (EEC) No 1408/ 71 and Regulation (EEC) No 574/72 to 
nationals of third countries who are not al ready covered by those provisions solely on 
the ground of their nationality.  
Recently adopted measures due to enter in to force in the sector of the Social 
security  
Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 
April 2004 on the coordination of  social security schemes.  
New measures already proposed and due to be adopted in the sector of the 
Social security  
Proposal for a Regulation of the European Parliament and of the Council laying 
down the procedures for implementing Regulation (EC) No 883/2004 on the coordination of social security schemes. 
Proposal for a Regulation of the Council extending the provi sions of Regulation (EC) 
No 883/2004 and of Regulation (EC) No [….]to  nationals of third countries who are 
not already covered by those provisions sole ly on the ground of their nationality. 
 II.2. Labour Law 
II.2.1. Working conditions 
– Directive 96/71/EC
513 of the European Parliament  and of the Council of 16 
December 1996 concerning the posting of workers in the framework of the 
provision of services 
– Council Directive 97/81/EC514 of 15 December 1997 concerning the Framework 
Agreement on part-time work concluded by UNICE, CEEP and the ETUC - Annex : Framework agreement on part-time work; 
– Council Direc tive 98/23/EC
515 of 7 April 1998 on the extension of Directive 
97/81/EC on the framework agreement on part-time work concluded by UNICE, 
                                                 
513 OJ L 18, 21.1.1997, p. 1–6 
514 OJ L 14, 20.1.1998, p. 9–14 
515 OJ L 131, 5.5.1998, p. 10–10 
EN 376   EN CEEP and the ETUC to the United Kingdom  of Great Britain and Northern 
Ireland; 
– Council Directive 1999/70/EC516 of 28 June 1999 concerning the framework 
agreement on fixed-term work c oncluded by ETUC, UNICE and CEEP; 
– Council Directive 1999/63/EC517 of 21 June 1999 concerning the Agreement on 
the organisation of working time of seafarers concluded by the European 
Community Shipowners Association (ECS A) and the Federation of Transport 
Workers' Unions in the European Union (FST); 
– Council Directive 2000/79/EC518 of 27 November 2000 concerning the European 
Agreement on the Organisation of Worki ng Time of Mobile Workers in Civil 
Aviation concluded by the Association of Eu ropean Airlines (AEA), the European 
Transport Workers' Federation (ETF), th e European Cockpit Association (ECA), 
the European Regions Airline Association (ERA) and the International Air Carrier 
Association (IACA); 
– Directive 2003/88/EC519 of the European Parliament  and of the Council of 4 
November 2003 concerning certain aspects of the organisation of working time; 
– Council Directive 2005/47/EC520 of 18 July 2005 on the Agreement between the 
Community of European Railways (CER) and the European Transport Workers’ 
Federation (ETF) on certain aspects of the working conditions of mobile workers engaged in interoperable cross-border  services in the railway sector; 
– Directive 2008/104/EC
521 of European Parliament and of the Council of 19 
November 2008 on temporary agency work. 
– Council Directive 2009/13/EC implementi ng the Agreement concluded by the 
European Community Shipowners' Asso ciations (ECSA) and the European 
Transport Workers' Federation (ETF ) on the Maritime Labour Convention, 2006 
and amending Directive 1999/63/EC 
II.2.2. Information and consultation of workers 
– Council Directive 94/45/EC522 of 22 September 1994 on the establishment of a 
European Works Council or a procedur e in Community-scale undertakings and 
Community-scale groups of undertakings for the purposes of informing and 
consulting employees; 
– Council Directive 97/74/EC523 of 15 December 1997 ex tending, to the United 
Kingdom of Great Britain and Northe rn Ireland, Directive 94/45/EC on the 
                                                 
516 OJ L 244, 16.9.1999, p. 64–64 
517 OJ L 167, 2.7.1999, p. 33–37 
518 OJ L 302, 1.12.2000, p. 57–60 
519 OJ L 299, 18.11.2003, p. 9–19 
520 OJ L 195, 27.7.2005, p. 15–17 
521 OJ L 327, 5.12.2008, p. 9-14 
522 OJ L 254, 30.9.1994, p. 64–72 
523 OJ L 365, 31.12.1994, p. 46–51 
EN 377   EN establishment of a European  Works Council or a procedure in Community-scale 
undertakings and Community-scale groups of undertakings for the purposes of 
informing and consulting employees 
– Council Directive 2006/109/EC524 of 20 November 2006 adapting Directive 
94/45/EC on the establishment of a Eur opean Works Council or a procedure in 
Community-scale undertakings  and Community-scale groups  of undertakings for 
the purposes of informing and consulting employees, by reason of the accession of 
Bulgaria and Romania; 
– Council Directive 2001/86/EC525 of 8 October 2001 suppl ementing the Statute for 
a European company with regard to the involvement of employees; 
– Council Directive 2003/72/EC526 of 22 July 2003 supplementing the Statute for a 
European Cooperative Society with rega rd to the involvement of employees; 
– Directive 2002/14/EC527 of the European Parliame nt and of the Council of 11 
March 2002 establishing a general framework for informing and consulting employees in the European Community - Joint declaration of the European 
Parliament, the Council and the Commission on employee representation; 
– Directive 2009/38/EC on the establishmen t of a European Works Council or a 
procedure in Community-scale undertak ings and Community-scale groups of 
undertakings for the purposes of informing and consulting employees (Recast). 
II.2.3. Protection of workers 
– Council Directive 91/383/EEC
528 of 25 June 1991 supplementing the measures to 
encourage improvements in the safety and h ealth at work of workers with a fixed- 
duration employment relationship or a temporary employment relationship; 
– Council Directive 91/533/EEC529 of 14 October 1991 on an employer's obligation 
to inform employees of the conditions applicable to the contract or employment relationship; 
– Council Directive 94/33/EC
530 of 22 June 1994 on the protection of young people 
at work; 
– Council Directive 98/59/EC531 of 20 July 1998 on the approximation of the laws 
of the Member States relati ng to collective redundancies; 
                                                 
524 OJ L 363, 20.12.2006, p. 416–417 
525 OJ L 294, 10.11.2001, p. 22–32 
526 OJ L 207, 18.8.2003, p. 25–36 
527 OJ L 80, 23.3.2002, p. 29–34 
528 OJ L 206, 29.7.1991, p. 19–21 
529 OJ L 288, 18.10.1991, p. 32–35 
530 OJ L 216, 20.8.1994, p. 12–20 
531 OJ L 225, 12.8.1998, p. 16–21 
EN 378   EN – Directive 2008/94/EC532 of the European Parliame nt and of the Council of 22 
October 2008 on the protection of employees  in the event of the insolvency of 
their employer (codified version); 
– Council Directive 2001/23/EC533 of 12 March 2001 on the approximation of the 
laws of the Member States relating to th e safeguarding of employees' rights in the 
event of transfers of undertakings, bus inesses or parts of undertakings or 
businesses; 
II.2.4. Implementation and application reports  
– Implementation reports concerning the transposition of Directives 91/383/EEC, 
97/81/EC, 1999/70/EC, 96/71/EC in  the 10 new Member States  
– Implementation reports concerning the tr ansposition of Dir ectives 2001/23/EC 
and 80/987/EC (as amended by 2002/74/EC) in all 25 Member States  
– Implementation reports concerning Dir ectives 91/533/EEC, 94/45/EC (extended 
by 97/74/EC) and 98/59/EC in the 10 new Member States  
– Implementation reports concerning Directives 2001/86/EC, 2002/14/EC and 
2003/72/EC in all 25 Member States  
– Implementation reports concerning Direc tives 94/33/EC and 2003/88/EC in the 10 
new Member States  
– Implementation report concerning Dir ective 2000/34/EC in the EU-15 Member 
States  
– Implementation reports concerning Dir ectives 1999/63/EC, 2000/79/EC in all 25 
Member States  
II.3. Health and safety at work 
 
– Directive 89/391/EEC534 of 12 June 1989 on the intro duction of measures to encourage 
improvements in the safety and health of workers at work;  
– Council Directive 89/654/EEC535 of 30 November 1989 concerning the minimum 
safety and health requirements for the workplace (first individual directive within the meaning of Article 16(1) of Directive 89/391/EEC); 
– 
Directive 2009/104/EC536 of the European Parliament a nd of the Council of 16 September 
2009 concerning the minimum safety and hea lth requirements for the use of work 
equipment by workers at work (second individual  Directive within the meaning of Article 
                                                 
532 OJ L 283, 28.10.2008, p. 36-42 
533 OJ L 82, 22.3.2001, p. 16–20 
534 OJ L 183, 29.6.1989, p.1. 
535 OJ L 393, 30.12.1989, p.1. 
536 OJ L 260, 3.10.2009, p. 5. 
EN 379   EN 16(1) of Directive 89/391/EEC – Codificati on of Directive 89/655/EEC, as amended by 
Directives 95/63/EC and 2001/45/EC);  
– Council Directive 89/656/EEC537 of 30 November 1989 on the minimum health and 
safety requirements for the use by workers of personal protective equipment at the 
workplace (third   individual directive within  the meaning of Article 16(1) of Directive 
89/391/EEC);  
– Council Directive 90/269/EEC538 of 29 May 1990 on the minimum health and safety 
requirements for the manual handling of loads wh ere there is a risk particularly of back 
injury to workers (fourth individual directiv e within the meaning of Article 16(1) of 
Directive 89/391/EEC);  
– Council Directive 90/270/EEC539 of 29 May 1990 on the minimum safety and health 
requirements for work with display screen equipm ent (fifth individual directive within the 
meaning of Article 16(1) of Directive 89/391/EEC);  
– Directive 2004/37/EC540  of the European Parliament and of the Council of 29 April 2004 
on the protection of workers from the risks related to exposure to carcinogens or 
mutagens at work (sixth individual direc tive within the meaning of Article 16(1) of 
Directive 89/391/EEC - Codification of Directive 90/394/EEC);  
– Directive 2000/54/EC541 of the European Parliament and of the Council of 18 September 
2000 on the protection of workers from risks related to exposure to biological agents at 
work (seventh individual directive within the meaning of Article 16(1) of Directive 
89/391/EEC) -  Codification of Directive 90/679/EEC);  
– Council Directive 92/57/EEC542 of 24 June 1992 on the implementation of minimum 
safety and health requirements at temporary or  mobile construction sites (eight individual 
directive within the meaning of Article 16(1) of Directive 89/391/EEC);  
– Council Directive 92/58/EEC543 of 24 June 1992 on the minimum requirements for the 
provision of safety and/or health signs at work (ninth individual Directive within the 
meaning of Article 16(1) of Directive 89/391/EEC);  
– Council Directive 92/91/EEC544 of 3 November 1992 concerning the minimum 
requirements for improving the safety and hea lth protection of workers in the mineral-
extracting industries through drilling (eleventh in dividual directive within the meaning of 
Article 16(1) of Directive 89/391/EEC );  
– Council Directive 92/104/EEC545 of 3 December 1992 on the minimum requirements for 
improving the safety and health protecti on of workers in surface and underground 
                                                 
537 OJ L 393, 30.12.1989, p.18. 
538 OJ L 156, 21.6.1990, p.9. 
539 OJ L 156,21.6.1990, p.14. 
540 OJ L 229, 29.6.2004, p.23. 
541 OJ L 262, 17.10.2000, p.21. 
542 OJ L 245, 26.8.1992, p.6. 
543 OJ L 245, 26.8.1992, p.23. 
544 OJ L 348, 28.11.1992, p.9. 
545 OJ L 404, 31.12.1992, p.10. 
EN 380   EN mineral-extracting industries (twelfth individua l directive within the meaning of Article 
16(1) of Directive 89/391/EEC);  
– Council Directive 93/103/EC546 of 23 November 1993 concerning the minimum safety 
and health requirements for work on board fi shing vessels (thirteenth individual directive 
within the meaning of Article 16(1) of Directive 89/391/EEC);  
– Council Directive 98/24/EC547 of 7 April 1998 on the protection of the health and safety 
of workers from the risks related to chemic al agents at work (fourteenth individual 
directive within the meaning of Article 16(1) of Directive 89/391/EEC);  
Commission Directives establishing in dicative exposure limit values: 
– Commission Directive 91/322/EEC548  of 29 May 1991 on establishing indicative 
limit values by   implementing Counc il Directive 80/1107/EEC on the protection 
of workers from the risks re lated to exposure to chemi cal, physical and biological 
agents at work, 
– Commission Directive 2000/39/EC549 of 8 June 2000 establ ishing a first list of 
indicative occupational exposure limit va lues in implementation of Council 
Directive 98/24/E on the protection of the health and safety of workers from the 
risks related to chemical agents at work, 
– Commission Directive 2006/15/EC550 of 7 February 2006 establishing  a second 
list of indicative occupational exposure lim it values in implementation of Council 
Directive 98/24/EC and amending Directives 91/322/EEC and 2000/39/EC; 
– Directive 1999/92/EC551 of the European Parliame nt and of the Council of 16 
December 1999 on minimum requirements for improving the safety and health protection of workers potentially at risk  from explosive atmospheres (fifteenth 
individual directive within the mean ing of Article 16(1) of Directive 
89/391/EEC); 
– Directive 2002/44/EC
552 of the European Parliament and of the Council of 25 June 
2002 on the minimum health and safety re quirements regarding the exposure of 
workers to the risk arising from physical  agents (vibration) (sixteenth individual 
directive within the meaning of Arti cle 16(1) of Directive 89/391/EEC); 
– Directive 2003/10/EC553 of the European Parliame nt and of the Council of 6 
February 2003 on the minimum health a nd safety requirements  regarding the 
                                                 
546 OJ L 307, 13.12.1993, p.1. 
547 OJ L131, 5.5. 1998, p.11. 
548 OJ L177, 5.7. 1991, p.22. 
549 OJ L 142, 16.6.2000, p.47. 
550 OJ L 38, 9.2.2006, p.36. 
551 OJ L 23, 28.1.2000, p.57. 
552 OJ L 177, 6.7.2002, p.13. 
553 OJ L 42, 15.2.2003, p.38. 
EN 381   EN exposure  of workers to the risk arising from physical agents (noise) (seventeenth 
individual directive within the mean ing of Article 16(1) of Directive 
89/391/EEC); 
– Directive 2004/40/EC554 of the European Parliame nt and of the Council of 29 
April 2004 on the minimum health and safety requirements regarding the exposure of workers to the risks arisi ng from physical agents (electromagnetic 
fields) (18th individual Directive within th e meaning of Article 16(1) of Directive 
89/391/EEC), ); as amended by Directive 2008/46/EC
555 
– Directive 2006/25/EC556 of the European Parliament and of the Council of 5 April 
2006 on the minimum health and safety re quirements regarding the exposure of 
workers to risks arising from physical agen ts (artificial optical  radiation) (19th 
individual Directive within the mean ing of Article 16(1) of Directive 
89/391/EEC); 
– Council Directive 92/29/EEC557 of 31 March 1992 on the minimum safety and 
health requirements for improved me dical treatment on board vessels; 
– Council Directive 83/477/EEC558 of 19 September 1983 on the protection of 
workers from the risks related to exposure  to asbestos at work, as amended by: 
– Council Directive 91/382/EEC559 of 25 June 1991 amending directive 83/477/EEC 
on the protection of workers from the risk s related to exposur e to asbestos at 
work, 
– Directive 2003/18/EC560, of the European Parliament  and of the Council of 27 
March 2003 amending Council directive 83/ 477/EEC on the protection of workers 
from the risks related to e xposure to asbestos at work; 
– Directive 2007/30/EC561 of the European Parliament and of the Council of 20 June 2007 
amending Council Directive 89/391/EEC, its  individual Directives and Council 
Directives 83/477/EEC, 91/383/EEC, 92/29/EEC and 94/33/EC with a view to simplifying and rationalising the re ports on practical implementation.
 
                                                 
554 OJ L 184, 24.5.2004, p.1. 
555 OJ L 114, 26.4.2008, p. 88  
556 OJ L 114, 27.4.2006, p.38. 
557 OJ L 113, 30.4.1992, p.19. 
558 OJ L 263, 24.9.1983, p.25. 
559 OJ L 206, 29.7.1991, p.16. 
560 OJ L 97, 15.4.2003, p.48. 
561 OJ L 165, 27.6.2007, p.21. 
 
EN 382   EN II.4. Gender equality and anti-discrimination 
II.4.1. Gender equality 
– Directive 2006/54/EC562 of the European Parliament and of the Council of 5 July 
2006 on the implementation of the princi ple of equal opportunities and equal 
treatment of men and women in matters  of employment and occupation (recast) 
– Council Directive 2004/113/EC563 of 13 December 2004 implementing the 
principle of equal treatment between me n and women in the access to and supply 
of goods and services 
– Directive 2002/73/EC564 of the European Parliame nt and of the Council of 23 
September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as  regards access to 
employment, vocational training and promotion, and working conditions 
– Council Directive 97/80/EC
565 of 15 December 1997 on the burden of proof in 
cases of discrimination based on sex 
– Council Directive 96/97/EC566 of 20 December 1996 amending Directive 
86/378/EEC on the implementation of the pr inciple of equal treatment for men 
and women in occupational social security schemes 
– Council Directive 96/34/EC567 of 3 June 1996 on the framework agreement on 
parental leave concluded by UNICE, CEEP and the ETUC 
– Council Directive 92/85/EEC568 of 19 October 1992 on the introduction of 
measures to encourage improvements in the safety and health at work of pregnant 
workers and workers who have recently gi ven birth or are breastfeeding (tenth 
individual Directive within the mean ing of Article 16 (1) of Directive 
89/391/EEC) 
– Council Directive 86/613/EEC569 of 11 December 1986 on the application of the 
principle of equal treatment between men and women engaged in an activity, 
including agriculture, in a self-employe d capacity, and on the protection of self-
employed women during pr egnancy and motherhood 
– Council Directive 86/378/EEC570 of 24 July 1986 on the implementation of the 
principle of equal treatment for men and women in occupational social security 
schemes 
                                                 
562 OJ L 204, 26.7.2006 
563 OJ L 373, 21.12.2004 
564 OJ L 269, 5.10.2002 
565 OJ L 14, 20.1.1998 
566 OJ L 151, 18.6.1999 
567 OJ L 145, 19.6.1996 
568 OJ L 348, 28.11.1992 
569 OJ L 359, 19.12.1986 
570 OJ L 241, 3.9.1997 
EN 383   EN – Council Directive 79/7/EEC571 of 19 December 1978 on the progressive 
implementation of the principle of equal treatment for men and women in matters of social security 
– Council Directive 76/207/EEC
572 of 9 February 1976 on th e implementation of the 
principle of equal treatment for men and women as regards access to employment, 
vocational training and promotion, and working conditions 
– Council Directive 75/117/EEC573 of 10 February 1975 on the approximation of 
the laws of the Member States relating to the application of the principle of equal pay for men and women. 
II.4.2. Anti-discrimination 
– Council Directive 2000/78/EC
574 of 27 November 2000 establishing a general 
framework for equal treatment in employment and occupation 
– Council Directive 2000/43/EC575 of 29 June 2000 implem enting the principle of 
equal  
III.  ENERGY  AND  TRANSPORT 
A full description of the legal basis for c ontrolling the application of the Community acquis  
on energy and transport was provi ded in the context of the 25th Report (Annex I, paragraph 
2.1). 
III.1. ENERGY 
The texts of current Community legislation on energy are available in section 12 of the EUR-
Lex database 
http://eur-
lex.europa.eu/Repview.do? idRoot=1&refinecode=LEG*T 1=V100;T2=V1;T3=V4&rep=12  
The Community acquis relataed to Title II, Chap ter 3, can be consulted in section 15 of the 
EUR-Lex database, the Community acquis  (heading 12.10.20.10 "Nuclear Safety and 
Radioactive Waste"). 
http://eur-
lex.europa.eu/Repview.do? idRoot=1&refinecode=LEG*T 1=V100;T2=V1;T3=V4&rep=15  
A comprehensive list of acquis  and case-law related to the Eu ratom Treaty can be consulted 
in the annexes to the Commission staff working paper (SEC (2007) 347) accompanying the Communication on the 50 years of the Eu ratom Treaty (COM(2007) 124 final) at  
                                                
 
571 OJ L 6, 10.1.1979 
572 OJ L 39, 14.2.1976 
573 OJ L 45, 19.2.1975 
574 OJ L 303, 2.12.2000 
575 OJ L 180, 19.7.2000 
EN 384   EN http://eur-lex.europa.eu/LexUriServ/L exUriServ.do?uri=CELEX:52007SC0347:EN:NOT  
List of legislation adopted in 2008 in the field of Energy  
Regulations  
- Commission Regulation (EC)  No 1275/2008 of 17 December 2008 implementing Directive 
2005/32/EC of the European Parliament and of the Council with regard to ecodesign 
requirements for standby and off mode elec tric power consumption of electrical and 
electronic household and office equipment 
- Regulation (EC) No 1099/2008 of the Europ ean Parliament and of the Council of 22 
October 2008 on energy statistics 
Directives  
- Directive 2008/3/EC of the Eu ropean Parliament and of the Council of 15 January 2008 
amending Directive 2003/54/EC as regards the a pplication of certain provisions to Estonia 
- Directive 2008/28/EC of the European Parliament and of the Council of 11 March 2008 
amending Directive 2005/32/EC establishing  a framework for the setting of ecodesign 
requirements for energy-using products, as  well as Council Directive 92/42/EEC and 
Directives 96/57/EC and 2000/55/EC, as rega rds the implementing pow ers conferred on the 
Commission 
- Directive 2008/92/EC of the Eu ropean Parliament and of th e Council of 22 October 2008 
concerning a Community procedure to improve the transparency of gas a nd electricity prices 
charged to industrial end-users (recast) 
III.2. TRANSPORT 
A full description of the legal basis for c ontrolling the application of the Community acquis  
on energy and transport was provi ded in the context of the 25th Report (Annex I, paragraph 
2.1). 
The texts of current Community legislation on transport are available in section 07 of the 
EUR-Lex database 
http://eur-lex.europa.eu/ en/legis/latest/chap07.htm  
In order to facilitate access to the legislation in force and ease its reading, a European Civil 
Aviation Handbook  has been developed, compiling not only Regulations and Directives, but 
also Decisions, Case Law and International Agreements in this field. 
http://ec.europa.eu/trans port/air/handbook/handbook_en.htm  
A Guide to European Community legislat ion in the field of civil aviation  (2007 Edition) is 
also available at 
http://ec.europa.eu/tran sport/air/internal_marke t/internal_market_en.htm  
Newest Legislation adopted in 2008 in the field of Transport : 
EN 385   EN Regulations  
- Commission Regulation (EC) No 8/2008 of 11 December 2007 amending Council 
Regulation (EEC) No 3922/91 as regards common  technical requirements and administrative 
procedures applicable to comme rcial transportation by aeroplane 
- Council Regulation (EC) No 71/2008 of 20 D ecember 2007 setting up the Clean Sky Joint 
Undertaking 
- Commission Regulation (EC) No 23/2008 of  11 January 2008 am ending Commission 
Regulation (EC) No 622/2003 laying down measur es for the implementa tion of the common 
basic standards on aviation security 
- Commission Regulation (EC) No 181/2008 of  28 February 2008 laying down certain 
measures for implementing Council Regula tion (EC) No 718/1999 on a Community fleet 
capacity policy to promote inland wate rway transport (Codified version) 
- Regulation (EC) No 216/2008 of the European Pa rliament and of the Council of 20 February 
2008 on common rules in the field of civil av iation and establishing a European Aviation 
Safety Agency, and repealing Council Dire ctive 91/670/EEC, Regulation (EC) No 1592/2002 
and Directive 2004/36/EC 
- Commission Regulation (EC) No 287/2008 of 28 March 2008 on the extension of the period 
of validity of referred to in Articl e 2c(3) of Regulation (EC) No 1702/2003 
- Regulation (EC) No 300/2008 of the European  Parliament and of the Council of 11 March 
2008 on common rules in the field of  civil aviation secu rity and repealing Regulation (EC) No 
2320/2002 
- Commission Regulation (EC) No 324/2008 of 9 April 2008 laying down revised procedures 
for conducting Commission inspections in the field of maritime security 
- Commission Regulation (EC) No 331/2008 of 11 April 2008 amending Regulation (EC) No 
474/2006 establishing the Community list of air carriers which are subject to an operating ban 
within the Community 
- Commission Regulation (EC) No 351/2008 of 16 April 2008 implementing Directive 
2004/36/EC of the European Parliament and of the Council as regards the prioritisation of 
ramp inspections on aircraft using Community airports 
- Commission Regulation (EC) No 358/2008 of 22 April 2008 amending Regulation (EC) No 
622/2003 laying down measures for the implemen tation of the common basic standards on 
aviation security 
- Commission Regulation (EC) No 482/2008 of 30 May 2008 establishing a software safety 
assurance system to be implemented by air na vigation service providers and amending Annex 
II to Regulation (EC) No 2096/2005 
- Commission Regulation (EC) No  536/2008 of 13 June 2008 giving ef fect to Article 6(3) and 
Article 7 of Regulation (EC) No 782/2003 of the European Parliament and of the Council on 
the prohibition of organotin compounds on ships and amending that Regulation 
EN 386   EN - Commission Regulation (EC) No 540/2008 of 16 June 2008 amending Annex II to 
Regulation (EC) No 336/2006 of the Europ ean Parliament and of the Council on the 
implementation of the International Safety Ma nagement (ISM) Code within the Community, 
as regards format of forms 
- Council Regulation (EC) No 569/2008 of 12 June 2008 amending Regulation No 11 
concerning the abolition of discrimination in tr ansport rates and conditi ons, in implementation 
of Article 79(3) of the Treaty establishing the Eur opean Economic Community 
- Commission Regulation (EC) No 668/2008 of 15 July 2008 amending Annexes II to V of 
Regulation (EC) No 2096/2005 laying down common requirements for the provision of air 
navigation services, as regards work ing methods and operating procedures 
- Commission Regulation (EC) No 715/2008 of 24 July 2008 amending Regulation (EC) No 
474/2006 establishing the Community list of air carriers which are subject to an operating ban 
within the Community 
- Commission Regulation (EC) No 820/2008 of 8 August 2008 laying down measures for the 
implementation of the common basic standa rds on aviation security (Text with EEA 
relevance) 
- Commission Regulation (EC) No 859/ 2008 of 20 August 2008 amending Council 
Regulation (EEC) No 3922/91 as regards common  technical requirements and administrative 
procedures applicable to comme rcial transportation by aeroplane 
- Regulation (EC) No 1008/2008 of the Europ ean Parliament and of the Council of 24 
September 2008 on common rules for the operation of air services in the Community (Recast)  
- Commission Regulation (EC)  No 1056/2008 of 27 October 2008 amending Regulation (EC) 
No 2042/2003 on the continuing airw orthiness of aircraft and aer onautical products, parts and 
appliances, and on the approval of organisations and personnel  involved in these tasks 
- Commission Regulation (EC) No 1057/2008 of  27 October 2008 amending Appendix II of 
Annex to Regulation (EC) No 1702/2003 concer ning the Airworthiness Review Certificate 
(EASA Form 15a) 
- Regulation (EC) No 1100/2008 of the Europ ean Parliament and of the Council of 22 
October 2008 on the elimination of  controls performed at the frontiers of Member States in 
the field of road and inland waterw ay transport (Codified version) 
- Commission Regulation (E C) No 1131/2008 of 14 Novemb er 2008 amending Regulation 
(EC) No 474/2006 establishing the Community lis t of air carriers which are subject to an 
operating ban within the Community  
- Regulation (EC) No 1335/2008 of the Europ ean Parliament and of the Council of 16 
December 2008 amending Regulation (EC) No 881/2004 establishing a European Railway 
Agency (Agency Regulation) 
- Council Regulation (EC) No 1361/2008 of 16 December 2008 amending Regulation (EC) 
No 219/2007 on the establishment of a joint undertaking to develop the new generation 
European air traffic management system (SESAR) 
EN 387   EN - Commission Regulation (E C) No 1356/2008 of 23 Decembe r 2008 amending Regulation 
(EC) No 593/2007 on the fees and charges levied by the European Aviation Safety Agency 
Directives  
- Commission Directive 2008/49/EC of 16 Ap ril 2008 amending Annex II to Directive 
2004/36/EC of the European Parliament and of  the Council regarding the criteria for the 
conduct of ramp inspections on aircraft using Community airports 
- Directive 2008/54/EC of the European Par liament and of the Council of 17 June 2008 
amending Council Directive 95/50/EC on uniform procedures for checks on the transport of 
dangerous goods by road, as regards the im plementing powers conferred on the Commission 
- Directive 2008/57/EC of the Eu ropean Parliament and of th e Council of 17 June 2008 on the 
interoperability of the rail system within the Community (Recast) 
- Council Directive 2008/59/ EC of 12 June 2008 adapting Directive 2006/87/EC of the 
European Parliament and of the Council la ying down technical re quirements for inland 
waterway vessels, by reason of the accession of the Republic of Bulgaria and Romania 
- Commission Directive 2008/65/EC of 27 Ju ne 2008 amending Directive 91/439/EEC on 
driving licences 
- Commission Directive 2008/67/ EC of 30 June 2008 amending Council Directive 96/98/EC 
on marine equipment 
- Directive 2008/68/EC of the European Parlia ment and of the Council of 24 September 2008 
on the inland transport of dangerous goods 
- Commission Directive 2008/87/EC of 22 Se ptember 2008 amending Directive 2006/87/EC 
of the European Parliament and of the Counc il laying down technical re quirements for inland 
waterway vessels 
- Directive 2008/106/EC of the European Parlia ment and of the Council of 19 November 
2008 on the minimum level of tr aining of seafarers (recast) 
- Directive 2008/110/EC of the European Parlia ment and of the Council of 16 December 2008 
amending Directive 2004/49/EC on safety on th e Community’s railways (Railway Safety 
Directive) 
- Commission Directive 2008/126/ EC of 19 December 2008 ame nding Directive 2006/87/EC 
of the European Parliament and of the Counc il laying down technical re quirements for inland 
waterway vessels 
Legislation in the pipeline (Air Transport) : 
– Proposal for a Regulation on a Code of Condu ct for computerised reservation systems 
– Proposal for a Regulation amending Regul ation (EC) No 216/2008 in the field of 
aerodromes, air traffic management and air navigation services and repealing Council 
Directive 06/23/EEC 
EN 388   EN – Proposal to amend Directive 2002/30/EC conc erning noise-related operating restrictions at 
Community airports 
– Commission Regulation on national qua lity control programmes security 
– Commission Regulation on securi ty Commission inspections  
– Commission Regulation on exemptions for sm all airports in the field of security 
– Commission Regulation on general measures de signed to amend non-essential elements of 
the common basic standards of security 
– Commission Regulation on detailed measures for the implementation of the common basic 
standards of security 
– Commission Regulations exempting from confis cation liquids sold at airports in the USA 
and South Korea 
IV. INTERNAL  MARKET  AND  SERVICES 
IV.1. Existing and in force acquis 
A list of the existing acquis unde r the remit of theCommission in the area "Internal Market 
and services" is available at  the following web address: 
http://ec.europa.eu/dgs/int ernal_market/mission_en.htm  
IV.2. Recently adopted measures 
Commission Directive 2007/16/EC of 19 Ma rch 2007 implementing Council Directive 
85/611/EEC on the coordination of laws, regulati ons and administrative provisions relating to 
undertakings for collective investment in tran sferable securities (UCITS) as regards the 
clarification of certain de finitions (OJ L 79, 20.03.2007, p. 11). 
Directive of the European Parliament a nd of the Council amending Council Directives 
78/660/EEC and 83/349/EEC as regards certain disclosure requirements for medium-sized 
companies and obligation to draw up cons olidated accounts {SEC(2008) 466} {SEC(2008) 
467} COM/2008/0195 final - COD 2008/0084 ( Adopted December 18, 2008, but formal 
adoption pending finalisation of the text by the lawyers linguists) 
Directive of the European Parliament and of the Council amending Directive 98/26/EC on 
settlement finality in payment and securities settlement systems and Directive 2002/47/EC on 
financial collateral arrangeme nts as regards linked syst ems and credit claims ( Adopted 18 
December 2008, but formal adoption pending finalisati on of the text by th e lawyers linguists) 
Directive 2009/14/EC of the European Parl iament and of the Council of 11 March 2009 
amending Directive 94/19/EC on deposit-guarantee schemes as re gards the coverage level and 
the payout delay, OJ L 68, 13.3.2009, p. 3.  
IV.3. New measures already proposed and due to be adopted 
Proposals in co-decision 
EN 389   EN Proposal for a Directive of the European Parl iament and of the Council on the taking-up and 
pursuit of the business of Insurance and Re insurance (SOLVENCY II) (recast) (COM (2007) 
361 of 10.7.07, and COM (2008) 119 of 26.2.2008, COD 2007/0143), (expected to be adopted 
in 2009 and enter into force in late 2012 ). 
Proposal for a Directive of the European Parlia ment and of the Council on the coordination of 
laws, regulations and administrative provisi ons relating to undertakings for collective 
investment in transferable securities (UCITS) ( Plenary vote in January 2009. General 
approach adopted in the Ecofin Council on 2 December 2008. Adopted in EP on 13 January 
2009)   
Proposal for a Directive of the European Parlia ment and of the Council on the coordination of 
procedures for the award of certain public work s contracts, public supp ly contracts and public 
service contracts in the fields of defens e and security {SEC(2007) 1598} {SEC(2007) 1599 
COM/2007/0766 final - COD 2007/0280 ( Adopted EP January 13 2009. Formal adoption of 
first reading agreement in Counc il expected under CZ presidency ) 
Proposal for a Council Decision co nferring jurisdiction on the Cour t of Justice in disputes 
relating to the Community patent, COM/2003/0827 final 
Proposal for a Community Patent Regulation 
Proposal for a Directive of the European Parl iament and of the Council amending Directive 
98/71/EC on the legal protection of designs (spare parts) 
Proposal for a Council Regulation on the statut e for a European private company {SEC(2008) 
2098} {SEC(2008) 2099} /* COM/2008/0396 final - CNS 2008/0130 */ 
Proposal for a Directive of the European Pa rliament and of the Council amending Council 
Directives 68/151/EEC and 89/666/EEC as regard s publication and transl ation obligations of 
certain types of companies {SEC(2008) 466} {SEC(2008) 467} /* COM/2008/0194 final - 
COD 2008/0083 */ 
Proposal for a Directive of the European Pa rliament and of the Council amending Council 
Directives 77/91/EEC, 78/855/EEC and 82/891/ EECand Directive 2005/56/EC as regards 
reporting and documentation requirements in th e case of merger and divisions {SEC(2008) 
2486} {SEC(2008) 2487} /* COM/2008/0576 final - COD 2008/0182 */ 
Financial Market : 
Proposal for a Directive of the European Parlia ment and of the Council amending Directives 
2006/48/EC and 2006/49/EC as regards banks aff iliated to central inst itutions, certain own 
funds items, large exposures, su pervisory arrangements, and crisis management SEC(2008) 
2532) SEC(2008) 2533 - COM/2008/ 0602 final - COD 2008/0191  
Proposal for a Regulation of the European Pa rliament and of the Council on Credit Rating 
Agencies COM (2008) 704 fina l, {SEC(2008) 745}{SEC(2008) 2746}   
Proposal for a Directive of the European Parl iament and of the Council of on the taking up, 
pursuit and prudential supervision of the busine ss of electronic money institutions, amending 
Directives 2005/60/EC and 2006/ 48/EC and repealing Directive 2000/46/EC (Text with EEA 
relevance) COM/2008/0627 final 
EN 390   EN Proposal for a Regulation of the European Pa rliament and of the Council on cross-border 
payments in the Community, COM(2008) 640 final 
V. TAXATION  AND  CUSTOMS  UNION 
V.1. CUSTOMS 
The following webpage contains a list of legal measures in the customs area  adopted since 
2003:  
http://ec.europa.eu/taxation_customs/common/le gislation/legislation/customs/index_en.htm  
• Relevant Treaty  provisions: 
Art 18; 
Art 23-27 TCE; Art 95 (approximation of laws); Art 133; 
Art 135. 
• Relevant secondary Community law  acts: 
Council Regulation (EEC) No 2913/92  (
Council Regulation (EEC) No 2913/92 establishing the Community 
Customs Code)  
Commission Regulation (EEC) No 2454/93 ( provisions for the implementation of Council Regulation (EEC) 
No 2913/92 establishing the Community Customs Code) ; 
The Common Customs Tariff  (Combined Nomenclature a nd tariff measures): Council 
Regulation (EEC) No  2658/87 on the tariff and statistical no menclature and the duty relief 
legislation (Council Regulation (EEC) No 918/83  of 28 March 1983 setting up a Community 
system of relief from customs duty); 
Regulation (EC) No 1889/2005 of the Euro pean Parliament and of the Council ; 
International agreements  in customs matters or the customs pr ovisions of international agreements; 
Specific legislation on customs control (counter feit, drug precursors, cultural goods, cash 
control) in particular : 
Council Regulation (EC) No 1383/2003 ; 
Council Regulation (EC) No 111/2005 ; 
Council Regulation (EEC) No 3911/92 . 
EN 391   EN V.2. INDIRECT TAXATION 
The following webpage contains a list of legal measures in the tax area  adopted since 2003: 
http://ec.europa.eu/taxation_customs/common/le gislation/legislation/taxation/index_en.htm  
Existing measures in force  (situation on 31/12/2008) 
• Relevant Treaty  provisions:  
Mainly: 
Art 90 ;  
Additional: Art 39 ; 
Art 49 ; 
Art 43 ; 
Art 56 . 
• Relevant secondary Community law  acts:  
Directive 2008/118/EC ; 
Directive 2008/55/EC ; (This Directive constituted a me re codification of the existing 
legislation (laid down in Directive 76/308 /EEC, which had already undergone several 
amendments). Therefore, it did not entail any transposition ch arge for the Member States)  
Directive 2008/9/EC ; 
Directive 2007/74/EC ; 
Directive 2006/112/EC (+ amending directives); 
Directive 2006/98/EC ; 
Directive 2006/79/EC ; 
Directive 2003/96/EEC (+ amending directives); 
Directive 95/60/EC ; 
Directive 95/59/EC ; 
Directive 92/84/EEC ; 
Directive 92/83/EEC ; 
Directive 92/80/EEC ; 
EN 392   EN Directive 92/79/EEC (+ amending directives); 
Directive 92/12/EEC (+ amending directives);  
Directive 91/680/EEC ; 
Directive 86/560/EEC ; 
Directive 86/247/EEC ; 
Directive 83/648/EEC ; 
Directive 83/183/EEC (+ amending directive); 
Directive 83/182/EEC ; 
Directive 83/181/EEC (+ amending directives); 
Directive 79/1072/EEC ; 
Directive 78/1035/EEC (+ amending directive); 
Directive 78/1032/EEC ; 
Directive 72/230/EEC ; 
Directive 69/463/EEC ; 
Directive 68/297/EEC (+ amending directive). 
V.3. DIRECT TAXATION 
The following webpage contains a list of legal measures in the tax area  adopted since 2003: 
http://ec.europa.eu/taxation_customs/common/le gislation/legislation/taxation/index_en.htm  
Existing measures in force  (situation on 31/12/2008) 
• Relevant Treaty  provisions:  
Art 18;  
Art 39  (to 42);  
Art 43 (to 48);  
Art 49  (to 55);  
Art 56  (to 60); 
Art 94;  
Art 293.  
EN 393   EN • Relevant secondary Community law  acts:  
Directive 69/335/EEC  (+ 4 amending directives); 
Directive 76/308/EEC (+ 4 amending directives);  
Directive 77/799/EEC  (+2 amending directives);  
Directive 90/434/EEC  (+1 amending directive);  
Directive 90/435/EEC  (+1 amending directive);  
Directive 2003/48/EC ; 
Directive 2003/49/EC  (+1 amending directive). 
VI. HEALTH  AND  CONSUMERS 
Main Measures in Force 31/12/2008 
VI.1. Public Health 
Relevant EC Treaty provisions : 
• Art 95 
• Art 152 
Relevant secondary Community law acts: 
• Directive 2001/37/EC  of the European Parliament and of the Council of 5 June 2001 on the 
approximation of the laws, regulations and admi nistrative provisions of  the Member States 
concerning the manufacture, presenta tion and sale of tobacco products 
• Directive 2002/98/EC  of the European Parliament and of the Council of 27 January 2003 
setting standards of quality and safety for the collection, testing, processing, storage and 
distribution of human blood and blood components and amending Directive 2001/83/EC 
• Directive 2003/33/EC  of the European Parliament and of the Council of 26 May 2003 on 
the approximation of the laws, regulations and administrative provisions of the Member 
States relating to the advertising and sponsorship of tobacco products 
• Directive 2004/23/EC  of the European Parliament and of the Council of 31 March 2004 on 
setting standards of quality and safety for the donation, procurement, testing, processing, 
preservation, storage and distribution of hu man tissues and cells 
• Commission Directive 2004/33/EC  of 22 March 2004 implementing Directive 2002/98/EC 
of the European Parliament and of the Council as regards certain tec hnical requirements for 
blood and blood components 
EN 394   EN • Commission Directive 2005/61/EC  of 30 September 2005 implementing Directive 
2002/98/EC of the European Parliament and of the Council as re gards traceability 
requirements and notification of seri ous adverse reactions and events 
• Commission Directive 2005/62/EC  of 30 September 2005 implementing Directive 
2002/98/EC of the European Parliament an d of the Council as regards Community 
standards and specifications relating to a quality system  for blood establishments 
• Commission Directive 2006/17/EC  of 8 February 2006 implem enting Directive 2004/23/EC 
of the European Parliament and of the Council as regards certain tec hnical requirements for 
the donation, procurement and tes ting of human tissues and cells 
• Commission Directive 2006/86/EC  of 24 October 2006 implementing Directive 2004/23/EC 
of the European Parliament and of the C ouncil as regards traceab ility requirements, 
notification of serious adverse reactions and events and certain technical requirements for 
the coding, processing, preservati on, storage and distribution of human tissues and cells 
• Decision No 2119/98/EC  of the European Parliament a nd of the Council of 24 September 
1998 setting up a network for the epidemio logical surveillance and control of 
communicable diseases in the Community 
• Regulation (EC) No 851/2004  of the European Parliament and of the Council of 21 April 
2004 establishing a European Centre for disease prevention and control 
• Commission Decision 2000/96/EC  of 22 December 1999 on the communicable diseases to 
be progressively covered by the Community  network under Decision No 2119/98/EC of 
the European Parliament and of the Council 
• Commission Decision 2002/253/EC  of 19 March 2002 laying dow n case definitions for 
reporting communicable diseases to the Community network under Decision No 
2119/98/EC of the European Parliament and of the Council 
• Commission Decision 2000/57/EC  of 22 December 1999 on the early warning and response 
system for the prevention a nd control of communicable di seases under Decision No 
2119/98/EC of the European Parliament and of the Council 
• Commission Decision 2007/875/EC  of 18 December 2007 amending Decision No 
2119/98/EC of the European Parliament and of the Council and Decision 2000/96/EC as 
regards communicable diseases listed in those decisions 
• Commission Decision 2008/351/EC  of 28 April 2008 amending Decision 2000/57/EC as 
regards events to be reported within the early warning and response system for the 
prevention and control of communicable diseases  
• Commission Decision 2008/426/EC  of 28 April 2008 amendi ng Decision 2002/253/EC 
laying down case definitions for reporting communicable di seases to the Community 
network under Decision No 2119/98/EC of the European Parliament and of the Council 
VI.2. Consumers 
Relevant EC Treaty provisions 
EN 395   EN • Art 95 
• Art 153 
Relevant secondary Community law acts: 
• Council Directive 85/577/EEC  of 20 December 1985 to protect the consumer in respect of 
contracts negotiated away from business premises 
• Council Directive 87/102/EEC  of 22 December 1986 for the approximation of the laws, 
regulations and administrative provisions of  the Member States concerning consumer 
credit 
• Council Directive 87/357/EEC  of 25 June 1987 on the approximation of the laws of the 
Member States concerning products which, appear ing to be other than they are, endanger 
the health or safety of consumers 
• Council Directive 90/88/EEC  of 22 February 1990 amending Directive 87/102/EEC for the 
approximation of the laws, regulations and admi nistrative provisions of  the Member States 
concerning consumer credit 
• Council Directive 90/314/EEC  of 13 June 1990 on package travel, package holidays and 
package tours 
• Council Directive 93/13/EEC  of 5 April 1993 on unfair term s in consumer contracts 
• Directive 97/7/EC  of the European Parliament and of the Council of 20 May 1997 on the 
protection of consumers in respect of distance contracts 
• Directive 98/6/EC  of the European Parliament and of  the Council of 16 February 1998 on 
consumer protection in the indication of th e prices of products offered to consumers 
• Directive 98/7/EC  of the European Parliament a nd of the Council of 16 February 1998 
amending Directive 87/102/EEC for the appr oximation of the laws, regulations and 
administrative provisions of the Member  States concerning consumer credit 
• Directive 98/27/EC  of the European Parliament and of the Council of 19 May 1998 on 
injunctions for the protection of consumers' interests 
• Directive 1999/44/EC  of the European Parliament and of the Council of 25 May 1999 on 
certain aspects of the sale of cons umer goods and associated guarantees 
• Directive 2001/95/EC  of the European Parliament a nd of the Council of 3 December 2001 
on general product safety  
• Directive 2002/65/EC  of the European Parliament and of the Council of 23 September 2002 
concerning the distance marketing of consum er financial services  and amending Council 
Directive 90/619/EEC and Dir ectives 97/7/EC and 98/27/EC 
• Directive 2005/29/EC  of the European Parliament and of the Council of 11 May 2005 
concerning unfair business-to-consumer commercia l practices in the internal market and 
amending Council Directive 84/450/EEC, Dir ectives 97/7/EC, 98/27/EC and 2002/65/EC 
EN 396   EN of the European Parliament and of the C ouncil and Regulation (EC) No 2006/2004 of the 
European Parliament and of the Council (‘U nfair Commercial Pr actices Directive’) 
• Directive 2006/114/EC  of the European Parliament an d of the Council of 12 December 
2006 concerning misleading and comparative advertising 
• Directive 2008/48/EC  of the European Parliament a nd of the Council of 23 April 2008 on 
credit agreements for consumers and repealing Council Di rective 87/102/EEC 
• Directive 2008/122/EC  of the European Parliament and of the Council of 14 January 2009 
on the protection of consumers in respect of cer tain aspects of timeshare, long-term holiday 
product, resale and exchange contracts 
• Commission Decision 2006/502/EC  of 11 May 2006 requiring Member States to take 
measures to ensure that only lighters which ar e child-resistant are placed on the market and 
to prohibit the placing on th e market of novelty lighters  
• Commission Decision 2008/322/EC  of 18 April 2008 prolonging the validity of Decision 
2006/502/EC requiring Member States  to take measures to ensu re that only lighters which 
are child-resistant are placed on the market and to prohibit the placing on the market of 
novelty lighters 
VI.3. Food Safety 
Relevant EC Treaty provisions: 
• Art 37 
• Art 95 
• Art 152 
VI.3.1. General 
• Regulation (EC) No 178/2002  of the European Parliament and of the Council of 28 January 
2002 laying down the general pr inciples and requirements of  food law, establishing the 
European Food Safety Authority and laying do wn procedures in matters of food safety 
VI.3.2. Veterinary 
• Council Directive 90/425/EEC  of 26 June 1990 concerning veterinary and zootechnical 
checks applicable in intra-Community trade in  certain live animals and products with a 
view to the completion of the internal market 
• Council Directive 89/662/EEC  of 11 December 1989 concerning veterinary checks in intra-
Community trade with a view to the completion of the internal market 
• Council Directive 96/93/EC  of 17 December 1996 on the certifi cation of animals and animal 
products 
EN 397   EN • Council Directive 2002/99/EC  of 16 December 2002 laying down the animal health rules 
governing the production, processing, distributi on and introduction of products of animal 
origin for human consumption 
• Council Directive 89/608/EEC  of 21 November 1989 on mutual assistance between the 
administrative authorities of the Member Stat es and cooperation betwee n the latter and the 
Commission to ensure the correct application of  legislation on veteri nary and zootechnical 
matters 
• Council Directive 91/496/EEC  of 15 July 1991 laying down the principles governing the 
organization of veterinary checks on animals entering the Community from third countries 
and amending Directives 89/662/ EEC, 90/425/EEC and 90/675/EEC 
• Council Directive 97/78/EC  of 18 December 1997 laying dow n the principles governing the 
organisation of veterinary checks on products entering the Community from third countries 
• Regulation (EC) No 882/2004  of the European Parliament and of the Council of 29 April 
2004 on official controls performed to ensure th e verification of compliance with feed and 
food law, animal health and animal welfare rules 
• Regulation (EC) No 1760/2000  of the European Parliament and of the Council of 17 July 
2000 establishing a system for the identificatio n and registration of bovine animals and 
regarding the labelli ng of beef and beef products and repealing Council Regulation (EC) 
No 820/97 
• Council Directive 64/432/EEC  of 26 June 1964 on animal hea lth problems affecting intra-
Community trade in bovine animals and swine 
• Council Directive 2008/71/EC  of 15 July 2008 on the identifica tion and registration of pigs 
• Council Regulation (EC) No 21/2004  of 17 December 2003 establishing a system for the 
identification and registration of ovine and cap rine animals and amending Regulation (EC) 
No 1782/2003 and Directives 92/102/EEC and 64/432/EEC 
• Council Directive 90/426/EEC  of 26 June 1990 on animal health conditions governing the 
movement and import from third countries of equidae 
• Council Directive 90/427/EEC  of 26 June 1990 on the zootechnical and genealogical 
conditions governing intra-Community trade in equidae 
• Council Directive 2003/85/EC  of 29 September 2003 on Community measures for the 
control of foot-and-mouth disease repeal ing Directive 85/511/ EEC and Decisions 
89/531/EEC and 91/665/EEC and am ending Directive 92/46/EEC 
• Council Directive 2001/89/EC  of 23 October 2001 on Community measures for the control 
of classical swine fever 
• Council Directive 2002/60/EC  of 27 June 2002 laying down specific provisions for the 
control of African swine fever and amendi ng Directive 92/119/EEC as regards Teschen 
disease and African swine fever 
EN 398   EN • Council Directive 92/35/EEC  of 29 April 1992 laying down cont rol rules and measures to 
combat African horse sickness 
• Council Directive 2005/94/EC  of 20 December 2005 on Community measures for the 
control of avian influenza a nd repealing Directive 92/40/EEC 
• Council Directive 92/66/EEC  of 14 July 1992 introducing Community measures for the 
control of Newcastle disease 
• Council Directive 2006/88/EC  of 24 October 2006 on animal  health requirements for 
aquaculture animals and products thereof, a nd on the prevention and control of certain 
diseases in aquatic animals 
• Council Directive 2000/75/EC  of 20 November 2000 laying do wn specific provisions for the 
control and eradicat ion of bluetongue 
• Regulation (EC) No 999/2001  of the European Parliament and of the Council of 22 May 2001 
laying down rules for the prev ention, control and eradicati on of certain transmissible 
spongiform encephalopathies 
• Regulation (EC) No 2160/2003  of the European Parliament  and of the C ouncil of 17 
November 2003 on the control of salmonella and other specified food-borne zoonotic 
agents 
• Council Directive 92/119/EEC  of 17 December 1992 introducing general Community 
measures for the control of certain animal dis eases and specific measures relating to swine 
vesicular disease 
• Council Directive 82/894/EEC  of 21 December 1982 on the notific ation of animal diseases 
within the Community 
• Council Directive 91/68/EEC  of 28 January 1991 on animal health conditions governing 
intra-Community trade in ovine and caprine animals 
• Council Directive 90/539/EEC  of 15 October 1990 on animal health conditions governing 
intra-Community trade in, and imports from third countries of, pou ltry and hatching eggs 
• Council Directive 89/556/EEC  of 25 September 1989 on animal health conditions governing 
intra-Community trade in and importation fr om third countries of embryos of domestic 
animals of the bovine species 
• Council Directive 88/407/EEC  of 14 June 1988 laying down the animal health requirements 
applicable to intra-Community trade in and imports of deep-frozen semen of domestic 
animals of the bovine species 
• Council Directive 90/429/EEC  of 26 June 1990 laying down the animal health requirements 
applicable to intra- Community trade in and imports of semen of domestic animals of the 
porcine species 
• Council Directive 92/65/EEC  of 13 July 1992 laying down animal health requirements 
governing trade in and imports into the Commu nity of animals, semen, ova and embryos 
EN 399   EN not subject to animal health requirements laid down in specific Community rules referred 
to in Annex A (I) to Directive 90/425/EEC 
• Regulation (EC) No 998/2003  of the European Parliament and of the Council of 26 May 2003 
on the animal health requirements applicable  to the non-commercial  movement of pet 
animals and amending Council Directive 92/65/EEC 
• Council Directive 96/22/EC  of 29 April 1996 concerning th e prohibition on the use in 
stockfarming of certain substa nces having a hormonal or thyrostatic action and of ß-
agonists, and repealing Directives  81/602/EEC, 88/146/EEC and 88/299/EEC 
• Council Directive 96/23/EC  of 29 April 1996 on measures to monitor certain substances and 
residues thereof in live animals and animal products and repealing Directives 85/358/EEC 
and 86/469/EEC and Decisions 89/187/EEC and 91/664/EEC 
• Council Directive 2004/68/EC  of 26 April 2004 laying down animal health rules for the 
importation into and transit through the Co mmunity of certain li ve ungulate animals, 
amending Directives 90/426/EEC and 92/65/ EEC and repealing Directive 72/462/EEC 
• Regulation (EC) No 854/2004  of the European Parliament and of the Council of 29 April 
2004 laying down specific rules for the organi sation of official controls on products of 
animal origin intended for human consumption 
• Directive 2004/41/EC  of the European Parliament and of the Council of 21 April 2004 
repealing certain Directives  concerning food hygiene and health conditions for the 
production and placing on the market of certain  products of animal origin intended for 
human consumption and amending Council Directives 89/662/EEC and 92/118/EEC and 
Council Decision 95/408/EC 
• Regulation (EC) No 1774/2002  of the European Parliament and of the Council of 3 October 
2002 laying down health rules concerning an imal by-products not intended for human 
consumption Council Directive 98/58/EC  concerning the protecti on of animals kept for 
farming purposes 
• Council Directive 1999/74/EC  of 19 July 1999 laying down minimum standards for the 
protection of laying hens 
• Council Directive 2007/43/EC  of 28 June 2007 laying down minimum rules for the 
protection of chickens kept for meat production 
• Council Directive 2008/119/EC  of 18 December 2008 laying down minimum standards for 
the protection of calves 
• Council Directive 91/630/EEC  of 19 November 1991 laying down minimum standards for 
the protection of pigs 
• Council Regulation (EC) No 1255/97  of 25 June 1997 concerni ng Community criteria for 
staging points and amending the route plan  referred to in the Annex to Directive 
91/628/EEC 
EN 400   EN • Council Directive 93/119/EC  of 22 December 1993 on the protection of animals at the time 
of slaughter or killing 
• Council Directive 77/504/EEC  of 25 July 1977 on pure- bred breeding animals of the bovine 
species 
• Council Directive 88/661/EEC  of 19 December 1988 on the zoo technical standards 
applicable to breeding animals of the porcine species 
• Council Directive 89/361/EEC  of 30 May 1989 concerning pu re-bred breeding sheep and 
goats 
• Council Directive 90/428/EEC  of 26 June 1990 on trade in equidae intended for 
competitions and laying down the cond itions for participation therein 
• Council Directive 91/174/EEC  of 25 March 1991 laying dow n zootechnical and pedigree 
requirements for the marketing of pure-bred animals and amending Directives 77/504/EEC 
and 90/425/EEC 
• Council Directive 94/28/EC  of 23 June 1994 laying down the principles relating to the 
zootechnical and genealogical c onditions applicable to imports  from third countries of 
animals, their semen, ova and embryo s, and amending Directive 77/504/EEC on 
pure-bred breeding animals of the bovine species 
• Council Decision 90/424/EEC  of 26 June 1990 on expenditure in the veterinary field 
• Regulation (EC) No 852/2004  of the European Parliament and of the Council of 29 April 
2004 on the hygiene of foodstuffs 
• Council Directive 92/118/EEC  of 17 December 1992 laying dow n animal health and public 
health requirements governing trade in and im ports into the Community of products not 
subject to the said requirements laid down in specific Community rules referred to in 
Annex A (I) to Directive 89/662/EEC and, as re gards pathogens, to Directive 90/425/EEC 
• Regulation (EC) No 183/2005  of the European Parliament and of the Council of 12 January 
2005 laying down requirements for feed hygiene 
• Regulation (EC) No 853/2004  of the European Parliament and of the Council of 29 April 
2004 laying down specific hygiene rule s for food of animal origin 
• Commission Regulation (EC) No 2073/2005  of 15 November 2005 on microbiological 
criteria for foodstuffs 
• Commission Regulation (EC) No 2074/2005  of 5 December 2005 laying down 
implementing measures for certain products  under Regulation (EC) No 853/2004 of the 
European Parliament and of the Council and fo r the organisation of o fficial controls under 
Regulation (EC) No 854/2004 of the Europ ean Parliament and of the Council and 
Regulation (EC) No 882/2004 of the European Parliament and of the Council, derogating 
from Regulation (EC) No 852/2004 of the Eur opean Parliament and of the Council and 
amending Regulations (EC) No 853/2004 and (EC) No 854/2004 
EN 401   EN • Commission Regulation (EC) No 2075/2005  of 5 December 2005 laying down specific 
rules on official controls for Trichinella in meat  
• Directive 2003/99/EC  of the European Parliament and of  the Council of 17 November 2003 
on the monitoring of zoonoses and zoonot ic agents, amendi ng Council Decision 
90/424/EEC and repealing C ouncil Directive 92/117/EEC 
• Council Regulation (EC) No 1/2005  of 22 December 2004 on the protection of animals 
during transport and related operations and amending Directives 64/432/EEC and 
93/119/EC and Regulation (EC) No 1255/97 
VI.3.3. Food Safety Rules 
• Commission Directive 87/250/EEC  of 15 April 1987 on the indi cation of alcoholic strength 
by volume in the labelling of alcoholic beve rages for sale to the ultimate consumer 
• Council Directive 89/396/EEC  of 14 June 1989 on indications or marks identifying the lot to 
which a foodstuff belongs 
• Council Directive 90/496/EEC  of 24 September 1990 on nutriti on labelling for foodstuffs 
• Directive 2000/13/EC  of the European Parliament a nd of the Council of 20 March 2000 on 
the approximation of the laws of the Member States relating to the labelling, presentation 
and advertising of foodstuffs 
• Regulation (EC) No 1924/2006  of the European Parliament  and of the C ouncil of 20 
December 2006 on nutrition and health claims made on foods 
• Regulation (EC) No 1331/2008  of the European Parliament  and of the C ouncil of 16 
December 2008 establishing a common authorisa tion procedure for food additives, food 
enzymes and food flavourings 
• Regulation (EC) No 1333/2008  of the European Parliament  and of the C ouncil of 16 
December 2008 on food additives 
• Regulation (EC) No 1332/2008  of the European Parliament  and of the C ouncil of 16 
December 2008 on food enzymes and amendi ng Council Directive 83/417/EEC, Council 
Regulation (EC) No 1493/1999, Directive 200 0/13/EC, Council Dire ctive 2001/112/EC 
and Regulation (EC) No 258/97 
• Council Directive 88/344/EEC  of 13 June 1988 on the approxi mation of the laws of the 
Member States on extraction solvents used  in the production of foodstuffs and food 
ingredients 
• Council Directive 88/388/EEC  of 22 June 1988 on the approxi mation of the laws of the 
Member States relating to flavourings for use in  foodstuffs and to source materials for their 
production 
• Council Decision 88/389/EEC  of 22 June 1988 on the estab lishment, by the Commission, of 
an inventory of the source materials and substa nces used in the prep aration of flavourings 
EN 402   EN • Regulation (EC) No 2232/96  of the European Parliament and of the Council of 28 October 
1996 laying down a Community procedure for fla vouring substances used or intended for 
use in or on foodstuffs 
• Regulation (EC) N° 2065/2003  of the European Parliament and of the Council of 10 
November on smoke flavourings used or intended for use in or on foods 
• Regulation (EC) No 1331/2008  of the European Parliament  and of the C ouncil of 16 
December 2008 establishing a common authorisa tion procedure for food additives, food 
enzymes and food flavourings 
• Regulation (EC) No 1334/2008  of the European Parliament  and of the C ouncil of 16 
December 2008 on flavourings and certain food ingredients with fla vouring properties for 
use in and on foods and amending Council Regulation (EEC) No 1601/91, Regulations 
(EC) No 2232/96 and (EC) No 110/2008 and Directive 2000/13/EC 
• Regulation 1935/2004/EC  of the European Parliament a nd of the Council of 27 October 2004 
on materials and articles intended to come into contact with food 
• Commission Regulation (EC) No 2023/2006  of 22 December 2006 on good manufacturing 
practice for materials and articles inte nded to come into contact with food 
• Directive 2002/46/EC  of the European Parliament and of the Council of 10 June 2002 on the 
approximation of the laws of the Member  States relating to food supplements 
• Regulation (EC) No 1925/2006  of the European Parliament  and of the C ouncil of 20 
December 2006 on the addition of vitamins and mine rals and of certain other substances to 
foods 
• Council Directive 89/398/EEC  of 3 May 1989 on the approximation of the laws of the 
Member States relating to foodstuffs in tended for particular nutritional uses 
• Council Directive 92/52/EEC  of 18 June 1992 on infant formulae and follow-on formulae 
intended for export to third countries 
• Council Directive 89/108/EEC  of 21 December 1988 on the approximation of the laws of the 
Member States relating to quick-fro zen foodstuffs for human consumption 
• Council Regulation (EEC) No 315/93  of 8 February 1993 laying down Community 
procedures for contaminants in food 
• Regulation (EC) No 258/97  of the European Parliament and of the Council of 27 January 
1997 concerning novel foods and novel food ingredients 
• Regulation (EC) N° 1829/2003  of the European Parliament and of the Council of 22 
September 2003 on genetically modified food and feed 
• Regulation (EC) N° 1830/2003  of the European Parliament and of the Council of 22 
September 2003 concerning the traceability a nd labelling of genetically modified 
organisms and the traceability  of food and feed products produced from genetically 
modified organisms and am ending Directive 2001/18/EC 
EN 403   EN • Directive 1999/2/EC  of the European Parliament and of  the Council of 22 February 1999 on 
the approximation of the laws of the Member States concerning foods and food ingredients 
treated with ionising radiation 
Note : No technical adaptation as such in the Direc tive but obligation to publish in Official Journal 
(C- Series) which (new) Member States authorise th e placing on the market of irradiated food other 
than those in EU list and which irradiation fac ilities in (new) Member States are approved by the 
national competent authorities for the treatment of food by ionising radiation. 
• Directive 1999/3/EC  of the European Parliament and of  the Council of 22 February 1999 on 
the establishment of a Community list of foods  and food ingredients tr eated with ionising 
radiation 
• Council Directive 80/777/EEC  of 15 July 1980 on the approximation of the laws of the 
Member States relating to the exploitation and marketing of natural mineral waters 
• Commission Directive 2003/40/EC  of 16 May 2003 establishing th e list, concentration limits 
and labelling requirements for the constituents of natural mineral waters and the conditions 
for using ozone-enriched air for the treatment of natural mineral waters and spring waters 
• Commission Regulation (EC) No 353/2008  of 18 April 2008 establishing implementing 
rules for applications for author isation of health claims as provided for in Article 15 of 
Regulation (EC) No 1924/2006 of the Eur opean Parliament and of the Council 
• Commission Directive 2008/100/EC  of 28 October 2008 amending Council Directive 
90/496/EEC on nutrition labelling for food stuffs as regards recommended daily 
allowances, energy conversi on factors and definitions 
• Council Directive 89/107/EEC  of 21 December 1988 on the approximation of the laws of 
the Member States concerning food additives authorized for use in foodstuffs intended for 
human consumption 
• Commission Regulation (EC) No 1882/2006  of 19 December 2006 laying down methods of 
sampling and analysis for the official control of  the levels of nitrates  in certain foodstuffs 
• Commission Regulation (EC) No 1883/2006  of 19 December 2006 laying down methods of 
sampling and analysis for the official control of  levels of dioxins and dioxin-like PCBs in 
certain foodstuffs 
• Commission Regulation (EC) No 401/2006  of 23 February 2006 laying down the methods 
of sampling and analysis for the official contro l of the levels of mycotoxins in foodstuffs 
• Commission Regulation (EC) No 333/2007  of 28 March 2007 laying down the methods of 
sampling and analysis for the official control of the levels of lead, cadmium, mercury, inorganic tin, 3-MCPD and benzo(a)pyrene in foodstuffs 
• Commission 
Decision 2006/504/EC  of 12 July 2006 on special conditions governing certain 
foodstuffs imported from certain third countries due to contamination risks of these 
products by aflatoxins 
EN 404   EN • Commission Decision 2008/352/EC  of 29 April 2008 imposing special conditions governing 
guar gum originating in or consigned from India due to contamination risks of those 
products by pentachlorophenol and dioxins 
• Commission Regulation (EC) No 565/2008  of 18 June 2008 amendi ng Regulation (EC) No 
1881/2006 setting maximum levels for certain c ontaminants in foodstuffs as regards the 
establishment of a maximum level fo r dioxins and PCBs in fish liver 
• Commission Regulation (EC) No 629/2008  of 2 July 2008 amending Regulation (EC) No 
1881/2006 setting maximum levels for certain contaminants in foodstuffs 
VI.3.4. Feed 
• Council Directive 70/524/EEC  of 23 November 1970 concerni ng additives in feedingstuffs 
Note: Council Directive 70/524/EEC shall be repealed  with effect 18 October 2004. However, 
Article 16 of Directive 70/524/EEC shall remain in force until Directive 79/373/EEC has been revised 
to include rules concerning the labelling of feed ingstuffs incorporating additives. Transitional 
measures concerning evaluations under Council Dir ective 70/524/EEC are set up in Article 25. 
• Regulation (EC) No 1831/2003  of the European Parliament  and of the C ouncil of 22 
September 2003 on additives for use in animal nutrition 
• Council Directive 79/373/EEC  of 2 April 1979 on the circula tion of compound feedingstuffs 
• Council Directive 96/25/EC  of 29 April 1996 on the circulatio n of feed materials, amending 
Directives 70/524/EEC, 74/63/EEC, 82/471/EEC and 93/74/EEC and repealing Directive 
77/101/EEC 
• Directive 2002/32/EC  of the European Parliament and the Council of 7 May 2002 on 
undesirable substances in animal feed 
• Council Directive 93/74/EEC  of 13 September 1993 on feedingstuffs intended for particular 
nutritional purposes 
• Commission Directive 2008/38/EC  of 5 March 2008 establishing a list of intended uses of 
animal feedingstuffs for part icular nutritional purposes 
• Council Directive 82/471/EEC  of 30 June 1982 concerning cert ain products used in animal 
nutrition 
• Council Directive 90/167/EEC  of 26 March 1990 laying down the conditions governing the 
preparation, placing on the market and use of medicated feedingstuffs in the Community 
VI.3.5. Phytosanitary 
• Council Directive 2000/29/EC  of 8 May 2000 on protective measures against the 
introduction into the Community of organism s harmful to plants or plant products and 
against their spread within the Community 
• Council Directive 69/464/EEC  of 8 December 1969 on control of Potato Wart Disease 
EN 405   EN • Council Directive 69/465/EEC  of 8 December 1969 on control of Potato Cyst Eelworm 
(until 01/06/2010) 
• Council Directive 74/647/EEC  of 9 December 1974 on contro l of carnation leaf-rollers 
• Council Directive 93/85/EC  of 4 October 1993 on control of Potato Ring Rot 
• Council Directive 98/57/EC  of 20 July 1998 on the control of Ralstonia solanacearum  
(Smith) Yabuuchi et al. 
• Council Directive 2006/91/EC  of 7 November 2006 on c ontrol of San José Scale 
• Council Directive 2007/33/EC  of 11 June 2007 on the control of potato cyst nematodes and 
repealing Directive 69/ 465/EEC (from 01/06/2010) 
• Commission Directive 92/70/EEC  of 30 July 1992 laying down detailed rules for surveys to 
be carried out for purposes of the recogni tion of protected zones in the Community 
• Commission Directive 93/51/EEC  of 24 June 1993 establishi ng rules for movements of 
certain plants, plant products or other object s through a protected z one, and for movements 
of such plants, plant products or other objec ts originating in and moving within such a 
protected zone 
• Commission Regulation (EC) No 690/2008  of 4 July 2008 recognising protected zones 
exposed to particular plant health risks in the Community 
• Commission Directive 92/90/EEC  of 3 November 1992 establishing obligations to which 
producers and importers of plants, plant pr oducts or other objec ts are subject and 
establishing details for their registration 
• Commission Directive 92/105/EEC  of 3 December 1992 establishing a degree of 
standardization for plant passports to be used  for the movement of certain plants, plant 
products or other objects with in the Community, and establis hing the detailed procedures 
related to the issuing of such plant passports and the conditions and detailed procedures for 
their replacement 
• Commission Directive 93/50/EEC  of 24 June 1993 specifying cer tain plants not listed in 
Annex V, part A to Council Directive 77/ 93/EEC, the producers of which, or the 
warehouses, dispatching centres in the production z ones of such plants, shall be listed in an 
official register 
• Commission Directive 94/3/EC  of 21 January 1994 establishing a pr ocedure for the 
notification of intercep tion of a consignment or a harmfu l organism from third countries 
and presenting an immine nt phytosanitary danger 
• Commission Directive 98/22/EC  of 15 April 1998 laying down the minimum conditions for 
carrying out plant health checks in the Commun ity, at inspection posts other than those at 
the place of destination, of plants, plant pr oducts or other objects coming from third 
countries 
EN 406   EN • Commission Directive 2008/61/EC  of 17 June 2008 establishing the conditions under which 
certain harmful organisms, plants, plant products  and other objects list ed in Annexes I to V 
to Council Directive 2000/29/EC  may be introduced into or  moved within the Community 
or certain protected zones thereof, for trial or  scientific purposes and for work on varietal 
selections 
• Council Directive 91/414/EEC  of 15 July 1991 concerning th e placing of plant protection 
products on the market 
• Regulation (EC) No 396/2005  of the European Parliament a nd of the Council of 23 February 
2005 on maximum residue levels of pesticides in  or on food and feed of plant and animal 
origin and amending Co uncil Directive 91/414/EEC 
• Council Directive 66/401/EEC  of 14 June 1966 on the marketing of fodder plant seed  
• Council Directive 66/402/EEC  of 14 June 1966 on the marketing of cereal seed  
• Council Directive 68/193/EEC  of 9 April 1968 on the marketing of material for the 
vegetative propagation of the vine 
• Council Directive 2008/72/EC of 15 July 2008 on the marketing of vegetable propagating 
and planting material, other than seed 
Until 29/09/2012 
• Council Directive 92/34/EEC  of 28 April 1992 on the marketing of fruit plant propagating 
material and fruit plants intended for fruit production 
From 30/09/2012 
• Council Directive 2008/90/EC  of 29 September 2008 on the marketing of fruit plant 
propagating material and fruit pl ants intended for fruit production 
• Council Directive 98/56/EC  of 20 July 1998 on the marketi ng of propagating material of 
ornamental plants 
• Council Directive 1999/105/EC  of 22 December 1999 on the marketing of forest 
reproductive material 
• Council Directive 2002/53/EC  of 13 June 2002 on the comm on catalogue of varieties of 
agricultural plant species 
• Council Directive 2002/54/EC  of 13 June 2002 on the marketing of beet seed 
• Council Directive 2002/55/EC  of 13 June 2002 on the marketing of vegetable seed 
• Council Directive 2002/56/EC  of 13 June 2002 on the marketing of seed potatoes  
• Council Directive 2002/57/EC  of 13 June 2002 on the marketing of seed of oil and fibre 
plants 
EN 407   EN • Commission Directive 75/502/EEC  of 25 July 1975 limiting the marketing of seed of 
smooth-stalk meadow grass ( Poa pratensis  L.) to seed which has be en officially certified 
'basic seed' or 'certified seed' 
• Commission Decision 80/512/EEC  of 2 May 1980 authorizing the Kingdom of Denmark, the 
Federal Republic of Germany, the Grand Duchy of Luxembourg, the Kingdom of the 
Netherlands and the United Kingdom not to apply the conditions laid down in Council 
Directive 66/401/EEC on the marke ting of fodder plant seed, as  regards the weight of the 
sample for determination of seed of Cuscuta 
• Commission Decision 85/370/EEC  of 8 July 1985 authorizing th e Netherlands to assess the 
satisfaction of the varietal purity standard s laid down in Annex II to Council Directive 
66/401/EEC for seed of apomic tic uniclonal varieties of Poa pratensis , also on the basis of 
the results of seed and seedling testing 
• Commission Decision 2004/371/EC  of 20 April 2004 on conditions for the placing on the 
market of seed mixtures intended for use as fodder plants 
• Commission Directive 2008/124/EC  of 18 December 2008 limiting th e marketing of seed of 
certain species of fodder plants and oil and fibr e plants to seed which has been officially 
certified as ‘basic seed ’ or ‘certified seed’ 
• Commission Decision 80/755/EEC  of 17 July 1980 authorizing the indelible printing of 
prescribed information on packages of cereal seed 
• Commission Directive 2004/29/EC  of 4 March 2004 on determining the characteristics and 
minimum conditions for in specting vine varieties 
• Commission Directive 93/61/EEC  of 2 July 1993 setting out the schedules indicating the 
conditions to be met by vegeta ble propagating and planting material, other than seed 
pursuant to Council Di rective 92/33/EEC 
• Commission Directive 93/62/EEC  of 5 July 1993 setting ou t the implementing measures 
concerning the supervision and monitoring of suppliers and establishments pursuant to 
Council Directive 92/33/EEC on the marketi ng of vegetable propagating and planting 
material, other than seed 
• Commission Directive 93/48/EEC  of 23 June 1993 setting out the schedule indicating the 
conditions to be met by fruit plant propagating material and fruit plants intended for fruit 
production, pursuant to Counc il Directive 92/34/EEC 
• Commission Directive 93/64/EEC  of 5 July 1993 setting ou t the implementing measures 
concerning the supervision and monitoring of suppliers and establishments pursuant to 
Council Directive 92/34/EEC on th e marketing of fruit plant pr opagating material and fruit 
plants intended for fruit production 
• Commission Directive 93/79/EEC  of 21 September 1993 setting out additional 
implementing provisions for lists of varieties of fruit plant propagating materi al and fruit 
plants, as kept by suppliers under Council Directive 92/34/EEC 
EN 408   EN • Commission Directive 93/49/EEC  of 23 June 1993 setting out the schedule indicating the 
conditions to be met by ornamental plant pr opagating material a nd ornamental plants 
pursuant to Council Di rective 91/682/EEC 
• Commission Directive 1999/66/EC  of 28 June 1999 setting out requirements as to the label 
or other document made out by the supplie r pursuant to Council Directive 98/56/EC 
• Commission Directive 1999/68/EC  of 28 June 1999 setting out additional provisions for lists 
of varieties of ornamental plants as kept by suppliers under Council Dir ective 98/56/EC 
• Commission Regulation (EC) No 1597/2002  of 6 September 2002 laying down detailed rules 
for the application of Council Directive 1999/105/EC  as regards the format of national lists 
of the basic material of fo rest reproductive material 
• Commission Regulation (EC) No 1598/2002  of 6 September 2002 laying down detailed rules 
for the application of Council Directive 1999/ 105/EC as regards th e provision of mutual 
administrative assistan ce by official bodies 
• Commission Regulation (EC) No 1602/2002  of 9 September 2002 laying down detailed rules 
for the application of Council Directive 1999/ 105/EC as regards the authorisation of a 
Member State to prohibit the marketing of sp ecified forest reproduc tive material to the 
end-user 
• Commission Regulation (EC) No 2301/2002  of 20 December 2002 laying down detailed rules 
for the application of Council Directive 1999/ 105/EC as regards the definition of small 
quantities of seed 
• Commission Regulation (EC) No 69/2004  of 15 January 2004 author ising derogations from 
certain provisions of Council Directive 1999/105/EC  in respect of the marketing of forest 
reproductive material derived fr om certain basic material 
• Commission Decision 2004/678/EC  of 29 September 2004 author ising Member States to 
permit temporarily the marketing of seed of the species Cedrus libani , Pinus brutia  and 
planting stock produced from this seed not sa tisfying the requirements of Council Directive 
1999/105/EC 
• Commission Decision 2005/853/EC  of 30 November 2005 authoris ing France to prohibit the 
marketing to the end user, with a view to seed ing or planting in cert ain regions of France, 
of reproductive material of Pinus pinaster  Ait. of Iberian Peninsula origin, which is 
unsuitable for use in such territo ries under Council Directive 1999/105/EC 
• Commission Decision 2005/871/EC  of 6 December 2005 releasing Denmark and Slovenia 
from certain obligations for marketing of  forest reproductive material under Council 
Directive 1999/105/EC 
• Commission Decision 2006/665/EC  of 3 October 2006 temporarily authorising Spain to 
approve for marketing seed of the species Pinus radiata  and planting stock produced from 
this seed imported from New Zealand which do es not satisfy the requ irements of Council 
Directive 1999/105/EC in respect of identification and labelling 
EN 409   EN • Commission Decision 2007/527/EC  of 25 July 2007 authorisi ng Bulgaria and Romania to 
derogate from Council Direct ive 1999/105/EC on the marketi ng of forest reproductive 
material with regard to the stocks accumul ated from 1 January 2003 to 31 December 2006 
• Council Decision 2008/971/EC  of 16 December 2008 on the equivalence of forest 
reproductive material produ ced in third countries 
• Commission Decision 2008/989/EC  of 23 December 2008 authorising Member States, in 
accordance with Council Direct ive 1999/105/EC, to take decisions on the equivalence of 
the guarantees afforded by forest reproductive material to be imported from certain third 
countries 
• Commission Directive 89/14/EEC  of 15 December 1988 determin ing the groups of varieties 
of spinach beet and beetroot referred to cr op isolation conditions of Annex I to Council 
Directive 70/458/EEC on the marketing of vegetable seed 
• Commission Directive 2003/91/EC  of 6 October 2003 setting out implementing measures for 
the purposes of Article 7 of C ouncil Directive 2002/55/EC as re gards the characteristics to 
be covered as a minimum by the examination and the minimum conditions for examining 
certain varieties of vegetable species 
• Commission Directive 93/17/EEC  of 30 March 1993 determining Community grades of 
basic seed potatoes, together with the cond itions and designations applicable to such 
grades 
• Commission Decision 2004/3/EC  of 19 December 2003 author ising, in respect of the 
marketing of seed potatoes in all or part of the territory of certain Member States, more 
stringent measures against certain diseases than are provided for in Annexes I and II to Council Directive 2002/56/EC 
• Commission 
Decision 97/125/EC  of 24 January 1997 authorizi ng the indelible  printing of 
prescribed information on packages of seed of oil and fibre plants  and amending Decision 
87/309/EEC authorizing the indelible printing of  prescribed information on packages of 
certain fodder plant species 
• Commission Decision 2004/266/EC  of 17 March 2004 authorising the indelible printing of 
prescribed information on packag es of seed of fodder plants 
• Commission Directive 2008/124/EC  of 18 December 2008 limiting th e marketing of seed of 
certain species of fodder plants and oil and fibr e plants to seed which has been officially 
certified as ‘basic seed ’ or ‘certified seed’ 
• Commission Directive 2008/62/EC  of 20 June 2008 providing fo r certain derogations for 
acceptance of agricultural landraces and varietie s which are naturally adapted to the local 
and regional conditions and threatened by gene tic erosion and for marketing of seed and 
seed potatoes of those landraces and varieties 
• Council Regulation (EC) No 2100/94  of 27 July 1994 on Community plant variety rights 
EN 410   EN VII. JUSTICE,  FREEDOM  AND  SECURITY 
Here below the main measures in force 31/12 /2008 in the sector of Justice Freedom and 
Security 
Please note that the list does not include legal instruments adopted under Title VI of the EU 
Treaty. 
A comprehensive list of JLS acquis in force is publicly available on the JLS EUROPA 
website576.  
As a follow-up of the Hague Programme, it has become customary to adopt a yearly 
Scoreboard Plus, the last  one published on 2 July 2008577. In addition to the monitoring of the 
adoption process, this communication examines  national implementation of policies in the 
Justice, Freedom and Security fields. 
VII.1. Treaty provisions 
VII.1.1. Fundamental rights 
• Article 6 of the Treaty on European Union and a general principle of Community law 
according to which Member States must re spect fundamental rights when implementing 
Community law 
VII.1.2. Citizenship 
• Article 12 of the Treaty establ ishing the European Community 
• Articles 17 to 22 of the Treaty esta blishing the European Community 
VII.1.3. Protection of personal data 
• Article 286 of the Treat y establishing the European Community 
VII.1.4. Judicial cooperation in civil matters 
• Article 65 of the Treaty establ ishing the European Community 
VII.2. Regulations 
VII.2.1. Asylum 
• Council Regulation (EC) No 343/2003 of 18 Febr uary 2003 establishing the criteria and 
mechanisms for determining the Member State responsible for examining an asylum 
                                                 
576 http://ec.europa.eu/justice_home/doc_centre/intro/doc_intro_en.htm. 
577 Communication of 2 July 2008 from the Commission to the Council and the European Parliament – 
Report on the implementation of the Hague programme for 2007 – COM(2008) 373 final. Available on 
JLS EUROPA website http://ec.europa.eu/justice_home/doc_centre/scoreboard_en.htm.  
EN 411   EN application lodged in one of the Member Stat es by a third-country national (OJ L 50 of 25 
of February 2003, p.1); 
– Commission Regulation (EC) No 1 560/2003 of 2 September 2003 laying down 
detailed rules for the application of Council Regulation (EC) No 343/2003 
establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum a pplication lodged in one of the Member 
States by a third-country national (OJ L 222 of 5 September 2003, p. 1); 
• Council Regulation (EC) No 2725/2000 of  11 December 2000 concerning the 
establishment of 'Eurodac' for the comparison of fingerprints for the effective application 
of the Dublin Convention (OJ L 316 of 15 December 2000, p.1);  
– Council Regulation (EC) No 407/2002 of 28 February 2002 laying down certain 
rules to implement Regulation (EC) No  2725/2000 concerning the establishment 
of "Eurodac" for the comparison of fingerpri nts for the effective application of the 
Dublin Convention (OJ L 62 of 5 March 2002, p. 1); 
• Regulation (EC) No 862/2007 of the European Parliament and of the Council of 11 July 
2007 on Community statistics on migration a nd international protection and repealing 
Council Regulation (EEC) No 311/76 on the comp ilation of statistics on foreign workers 
(OJ L 199 of 31 July 2007, p. 23); 
VII.2.2. Visas 
• Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for 
visas (OJ L 164, of 14 July 1995, p. 1), amended by: 
• Council Regulation (EC) No 334/2002 of 18 February 2002 (OJ L 53 of 23 
February 2002, p. 7); 
• Council Regulation (EC) NO 539/2001 of 15 Marc h 2001 listing the third countries whose 
nationals must be in possession of visas wh en crossing the external borders and those 
whose nationals are exempt from that re quirement (OJ L 81 of 21 March 2001, p. 1), 
amended by: 
– Council Regulation (EC) No 2414/2001 of 7 December 2001 (OJ L 327 of 12 
December 2001, p.1); 
– Council Regulation (EC) No 453/2003 of 6 March 2003 (OJ L 69 of 6 March 
2003, p. 10); 
– Council Regulation (EC) No 851/2005 of 2 June 2005 (OJ L 141 of 4 June 2005, 
p. 3); 
– Council Regulation (EC) No 1932/2006 of  2 June 2005 (OJ L 405 of 30 
December 2006, p. 23); 
EN 412   EN • Council Regulation (EC) No 789/2001 of 24 April 2001 reservin g to the Council 
implementing powers with regard to certain de tailed provisions and practical procedures 
for examining visa applications  (OJ L 116 of 26 April 2001, p. 2); 
• Council Regulation (EC) No 1091/2001 of 28 Ma y 2001 on freedom of movement with a 
long-stay visa (OJ L 150 of 6 June 2001, p. 4); 
• Council Regulation (EC) No 333/2002 of 18 Febr uary 2002 on a uniform format for forms 
for affixing the visa issued by Member Stat es to persons holding travel documents not 
recognised by the Member State drawing up the form (OJ L 53 of 23 February 2002, p. 4); 
– Council Regulation No 1030/2002/EC of 13 June 2002 laying down a uniform 
format for residence permits for third- country nationals (O J L 157 of 15 June 
2002, p. 1) and Commission Decision of 14 August 2002 laying down the 
technical specifications for the uniform format for residence permits for third 
country nationals (not published); 
• Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for 
residence permits for third-country na tionals (OJ L 157 of 15 June 2002, p. 1); 
• Council Regulation (EC) No 415/2003 of 27 Febr uary 2003 on the issue of visas at the 
border, including the issue of such visas to s eamen in transit (OJ L 64 of 7 March 2003, p. 
1); 
• Council Regulation 693/2003/EC of 14 April 2003 establishing  a specific Facilitated 
Transit Document (FTD), a Fa cilitated Rail Transit Document (FRTD) and amending the 
Common Consular Instructions  and the Common Manual (O J L 99 of 17 April 2003, p. 8); 
• Council Regulation No 694/2003 of 14 April 2003 on uniform formats for Facilitated 
Transit Documents (FTD and Facilitated Rail Transit Documents (FRTD) provided for in 
Regulation (EC) No 693/2003 (O J L 99 of 17 April 2003, p. 15). 
VII.2.3. Border management and return policy 
• Council Regulation (EC) No 377/2004 of 19 February 2004 on the creation of an 
immigration liaison officers network (OJ L 64 of 2 of March 2004, p. 1). 
• Regulation (EC) No 562/2006 of the European Pa rliament and of the Council of 15 March 
2006 establishing a Community Code on the ru les governing the movement of persons 
across borders (Schengen Borders C ode) (OJ L 105 of 13 April 2006, p.1); 
• Regulation (EC) No 1931/2006 of the Europe an Parliament and of the Council of 20 
December 2006 laying down rules on local border tr affic at the external land borders of the 
Member States and amending the provisions of the Schengen Conven tion (OJ L 405 of 30 
December 2006, p.1); 
EN 413   EN VII.2.4. Protection of personal data 
• Regulation (EC) 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 bodi es and on the free movement of such data (OJ L 8 of 12 
January 2001, p. 1). 
VII.2.5. Judicial cooperation in civil matters 
• Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ L 
160 of 30 June.2000, p.1); 
– Council Regulation (EC) No 681/2007 of 13 June 2007 amending the lists of 
insolvency proceedings, winding-up proceedings and liquidators in Annexes A, B and C to Regulation (EC) No 1346/2000 on insolvency proceedings (OJ L 159 of 
20 June 2007, p. 1); 
– Council Regulation (EC) No 788/2008 of 24 July 2008 amending the lists of 
insolvency proceedings and winding-up proceedings in Annexes A and B to 
Regulation (EC) No 1346/2000 on insolven cy proceedings (OJ L 213 of 8 August 
2008, p. 1); 
• Council Regulation (EC) No 2201/2003 of 27 Nove mber 2003 concerning jurisdiction and 
the recognition and enforcement of judgments in matrimonial matters and the matters of 
parental responsibility, repealing Regul ation (EC) No 1347/2000 (OJ L 338 of 23 
December 2003, p. 1); 
• Council Regulation (EC) No 2116/2004 of 2 December 2004 amending Regulation (EC) 
No 2201/2003 concerning jurisdiction and the r ecognition and enforcement of judgments 
in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, as regards treaties with the Holy See (OJ L 367 of 14 December 
.2004, p. 1); 
• Council Regulation (EC) No 1393/2007 of 13 November 2007 on the service in the 
Member States of judicial and extrajudicial documents in civil or commercial matters (OJ 
L 324 of 10 December 2007, p.79); 
• Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the 
recognition and enforcement of judgments in civil and commercial matters (OJ L 012 of 16 
January 2001, p.1); 
– Corrigendum to Council Regulation (EC)  No 44/2001 of 22 December 2000 on 
jurisdiction and the recognition and enfo rcement of judgments in civil and 
commercial matters (OJ L 307 of 24 November 2001, p. 28); 
– Commission Regulation (EC) No 14 96/2002 of 21 August 2002 amending Annex 
I (the rules of jurisdiction referred to in  Article 3(2) and Article 4(2)) and Annex 
II (the list of competent courts and aut horities) to Council Regulation (EC) No 
EN 414   EN 44/2001 on jurisdiction and the recognition a nd enforcement of judgments in civil 
and commercial matters (OJ L 225 of 22 August 2002, p. 13); 
– Commission Regulation (EC) No 1937/ 2004 of 9 November 2004 amending 
Annexes I, II, III and IV to Council Regulation (EC) No 44/2001 on jurisdiction 
and the recognition and enforcement of j udgments in civil and commercial matters 
(OJ L 334 of 10 November 2004, p. 3); 
– Commission Regulation (EC) No 2 245/2004 of 27 December 2004 amending 
Annexes I, II, III and IV to Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of j udgments in civil and commercial matters 
(OJ L 381 of 28 December 2004, p. 10); 
• Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the 
courts of the Member States in the taking of evidence in civil or commercial matters (OJ L 
174 of 27 June 2001, p. 1); 
• Council Regulation (EC) NO 743/2002 of 25 Ap ril 2002 establishing a general Community 
framework of activities to f acilitate the implementation of judicial cooperation in civil 
matters (OJ L 115 of 1 May 2002 p. 1); 
• Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 
2004 creating a European Enforcement Order fo r uncontested claims (OJ L 143 of 30 April 
2004, p.15); 
– Commission Regulation (EC) No 1869/ 2005 of 16 November 2005 replacing the 
Annexes to Regulation (EC) No 805/2004 of the European Parliament and of the 
Council creating a European Enforcement Order for uncontested claims (OJ L 300 
of 17 November 2005, p. 6); 
• Regulation (EC) establishing a European payment order procedure No 1896/2006 of 12 
December 2006 (OJ L 399 of 30 December 2006, p.1); 
• Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 
2007 establishing a European Small Claims Procedure (OJ L 199 of 31 July 2007, p. 1); 
• Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 
2007 on the law applicable to non-contractual obligations (Rome II) (O J L 199 of 31 July 
2007, p. 40); 
• Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 
2008 on the law applicable to contractual ob ligations (Rome I) (OJ L 177 of 4 July 2008, 
p. 7); 
• Council Regulation (EC) No 4/2009 of 18 Decem ber 2008 on jurisdiction, applicable law, 
recognition and enforcement of decisions and cooperation in matters relating to 
maintenance obligations (OJ L 7 of 10 January 2009, p. 1). 
EN 415   EN VII.3. Directives 
VII.3.1. Immigration and integration 
• Council Directive 2001/51/EC of 28 June 2001 supplementing the pr ovisions of Article 26 
of the Convention implementing the Schenge n Agreement of 14 June 1985 (OJ L 187 of 
10 July 2001, p. 45); 
• Council Directive 2002/90/EC of 28 Nove mber 2002 defining the facilitation of 
unauthorised entry, transit and reside nce (OJ L 328 of 5 December 2002, p. 17); 
• Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification 
(OJ L 251 of 3 October 2003, p. 12); 
• Council Directive 2003/109/EC of 25 November  2003 concerning the status of third-
country nationals who are long-term resi dents (OJ L 16 of 23 January 2004, p. 44); 
• Council Directive 2004/81/EC of 29 April 2004 on the residen ce permit issued to third-
country nationals who are victim s of trafficking in human be ings or who have been the 
subject of an action to  facilitate illegal immigration, who cooperate with the competent 
authorities (OJ L 261 of 6 August 2004, p. 3 and 19); 
• Council Directive 2004/114/EC of 13 Decembe r 2004 on the conditions of admission of 
third-country nationals for the purposes of  studies, pupil exchange, unremunerated training 
or voluntary service (OJ L 375, 23 December 2004 of p. 12); 
• Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting 
third-country nationals for the purposes of sc ientific research (OJ L 289 of 3 November 
2005, p. 15). 
VII.3.2. Asylum 
• Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving 
temporary protection in the event of a mass influx of displaced persons and on measures 
promoting a balance of efforts between Memb er States in receiving such persons and 
bearing the consequences thereof (OJ L 212 of 7 August 2001, p. 12); 
• Council Directive 2003/9/EC of  27 January 2003 laying down minimum standards for the 
reception of asylum seekers (OJ L 31 of 6 February 2003, p. 18); 
• Council Directive 2004/83/EC of 29 Apri l 2004 on minimum standards for the 
qualification and status of third country nationa ls or stateless persons as refugees or as 
persons who otherwise need international pr otection and the content of the protection 
granted (OJ L 304 of 30 September 2004, p. 2 and 12); 
EN 416   EN • Council Directive 2005/85/EC of  1 December 2005 on minimum standards on procedures 
in Member States for granting and withdrawin g refugee status (OJ L 326 of 13 December 
2005, p. 13). 
VII.3.3. Border management and return policy 
• Council Directive 2004/82/EC of 29 Apr il 2004 on the obligati on of carriers to 
communicate passenger data (OJ L 2 61 of 6 August 2004, p. 4 and 24); 
• European Parliament and Council Dir ective 2008/115/EC on common standards and 
procedures in Member States for returning il legally staying third country nationals (OJ L 
348 of 24 December 2008, p. 98); 
• Council Directive 2001/40/EC of 28 May 2001 on the mutual r ecognition of decisions on 
the expulsion of third country natio nals (OJ L 149 of 2 June 2001, p. 34); 
• Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for 
the purposes of removal by ai r (OJ L 321, 6 December 2003, p. 26). 
VII.3.4. Free movement of persons 
• Directive 2004/38/EC of the Eu ropean Parliament and of th e Council of 29 April 2004 on 
the right of citizens of the Union and their family members to move  and reside freely 
within the territory of the Member Stat es amending Regulation (EEC) No 1612/68 and 
repealing Directives 64/221/EEC, 68/ 360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 
75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance) (OJ L 
158 of 30 April 2004, p. 77). 
VII.3.5. Citizenship 
• Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for 
the exercise of the right to vote and stand as a candidate in elections to the European 
Parliament for citizens of the Union residing  in a Member State of which they are not 
nationals (OJ L 329 of 30 December 1993, p. 34); 
• Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for 
the exercise of the right to vote and to sta nd as a candidate in municipal elections by 
citizens of the Union residing in a Member Stat e of which they are not nationals (OJ L 368 
of 31 December 1994, p. 38); 
– Council Directive 96/30/EC of 13 May 1996 amending Directive 94/80/EC laying 
down detailed arrangements for the exercise  of the right to vote and to stand as a 
candidate in municipal elec tions by citizens of  the Union residing in a Member 
State of which they are not nati onals (OJ L 122 of 22 May 1996, p. 14); 
– Council Directive 2006/106/EC of 20 November 2006 adapting Directive 
94/80/EC laying down detailed arrangements for the exercise of the right to vote 
and to stand as a candidate in munici pal elections by citizens of the Union 
EN 417   EN residing in a Member State of which th ey are not nationals, by reason of the 
accession of Bulgaria and Romania (OJ L 363 of 20 December 2006, p. 409). 
VII.3.6. Protection of personal data 
• Directive 95/46/EC of the European Parliame nt and of the Council of 24 October 1995 on 
the protection of individuals w ith regard to the processing of personal data and on the free 
movement of such data (OJ L 281 of 23 November 1995, p. 31). 
VII.3.7. Judicial cooperation in civil matters 
• Council Directive 2003/8/EC of 27 January 2003 to improve acc ess to justice in cross-
border disputes by establishing minimum co mmon rules relating to legal aid for such 
disputes (OJ L 26 of 31 January 2003, p. 41); 
• Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims 
(OJ L 261 of 6 August 2004, p. 2 and 15); 
• Directive 2008/52/EC of the Eu ropean Parliament and of the Council of 21 May 2008 on 
certain aspects of mediation in civil and commercial matte rs (OJ L 136 of 24 May 2008, p. 
3). 
VII.3.8. Security 
• Directive 2006/24/EC of the European Parlia ment and of the Counc il of 15 March 2006 on 
the retention of data generated or processed in connection with the provision of publicly 
available electronic communicatio ns services or of public communications networks and 
amending Directive 2002/58/EC (O J L 105 of 13 April 2006, p. 54).