Proposal for a COUNCIL REGULATION on the European Monitoring Centre on Racism and Xenophobia (Recast version)

(presented by the Commission)

EXPLANATORY MEMORANDUM

1. Introduction

The European Monitoring Centre on Racism and Xenophobia has been in existence since 1998. Article 16 of Council Regulation EC No 1035/97 establishing the Centre instructs the Commission to forward to the European Parliament, the Council, the EUROPEAN ECONOMIC AND SOCIAL Committee and the Committee of the Regions a progress report on the Centre's activities, together with proposals, if appropriate, to modify or extend its tasks, taking into account, in particular, the development of Community powers in the field of racism and xenophobia. The Commission's Communication on the Centre's progress accompanying these proposals serves the first purpose. The following proposals for recasting Regulation No 1035/97 take up the Council's invitation to amend or modify the tasks of the Centre.

2. Justification of the Commission's proposals

As noted in the Communication accompanying these proposals, the Commission has consulted a range of stakeholders, notably the existing Management Board and staff of the Centre, the Member States, members of the European Parliament and civil society organisations. The consultation focused in particular on the findings and recommendations made in the report of the external evaluators (see the Commission's Communication for further details) and on a range of ideas concerning the options for improving the governance of the Centre, a point to which the evaluators drew particular attention.

The Commission's proposals are intended to sharpen the focus of the Centre's work and means of operation, without amounting to radical reform or introducing change for its own sake. It is important that the changes should take account of the experience of the Centre so far, building as far as possible on what has been shown to work effectively and correcting deficiencies where necessary. The proposals are therefore limited to those which are necessary to ensure the Centre's sustainability and, in particular, its proper functioning. For that reason, the Commission has not put forward any of the more radical proposals supported by some stakeholders during its consultation exercise, such as transforming the Centre into a wider human rights agency or making it responsible for all forms of discrimination covered by Article 13 of the Treaty establishing the European Community (or the longer list of grounds found in Article 21 of the European Charter of Fundamental Rights). Nor has it followed the proposal put forward by some stakeholders to bring the data-collection function back into the Commission and to discontinue the Community subsidy to the Monitoring Centre.

The amendments proposed fall into the following categories:

- Those intended to support the Centre's objective of helping the Community and the Member States when they take measures against the various aspects of racism and xenophobia, in particular by promoting closer co-operation;

- Those intended to strengthen the Centre's focus on the collection of data and in particular to underline the importance of working towards comparability between the Member States, where the greatest added value of the Centre lies;

- Those intended to adapt the governance of the Centre to the demands placed on it, including in the light of the enlargement of the Union;

- Those intended to provide greater clarity over the Centre's objectives, with a more logical presentation of the tasks designed to meet them, while leaving the Centre greater flexibility in how it organises its activities;

- Those intended to adapt the fields within which the Centre operates to the developments in competence of the Community following the entry into force of the Amsterdam Treaty, including action taken in the field of racism under Article 13 TEC;

- Those which codify the amendments to the Regulation already adopted by the Council in the light of the entry into force of the new Financial Regulation [1];

[1] Council Regulation (EC) No XXXX/03, (not yet published in OJ)

- Those intended to resolve a limited number of legal and other uncertainties which have arisen during the application of the original Regulation.

The changes proposed will have no impact on the overall budget of the Centre, though they may require a review of the allocation of financial and human resources between different activities, with a greater emphasis, for example, on data collection activities and on co-operation with the Member States and the Community Institutions. This coincides entirely with the findings and recommendations of the external evaluators.

To meet the objectives of the changes highlighted above, the Commission is proposing a large number of small but important amendments. A relatively large proportion of the articles is therefore affected. In the light of this, the Commission proposes that the Regulation should be recast rather than simply modified, thus making it possible for the users of the Regulation to have access to a consolidated text, bringing together the original version with the modifications already adopted by the Council Regulation of 18 June 2003 and those proposed specifically in this context. The presentation of the text therefore follows the guidelines set out in the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts [2].

[2] OJ C 77, 28. 03. 2002 p.1

3. Subsidiarity and Proportionality

The objective of the Monitoring Centre is to support the Community and the Member States when they take measures or formulate courses of action within their respective spheres of competence. The role of the Centre is to collect and analyse data and to present its findings in a way which is most helpful to the EU Institutions and to the Member States in achieving their objectives. It is independent in providing its advice, but it is not designed to act in the place of the responsible actors to combat racism and xenophobia. By acting at European level, it is designed to provide information and analysis which enable an assessment of the effectiveness of policies within and between Member States and so to add value in terms of the design and targeting of policies.

In this way, the Monitoring Centre conforms to the principles of subsidiarity and proportionality. The proposals for modification to the Regulation reinforce these elements by highlighting the need to work closely with the Member States and the Commission and to take account of the priorities fixed at EU level in the definition of the Centre's work programmes.

4. Legal Base

Articles 284 and 308 of the Treaty establishing the European Community (in their former numbering of 213 and 235) provided the legal base for the existing Regulation.

The Commission believes that Article 13 TEC, which provides powers to take appropriate action to combat discrimination based on, among other things, racial and ethnic origin, now gives the legal basis for covering important aspects of the phenomenon of racism and xenophobia. However it is not sufficient on its own to deal with all aspects of racism, xenophobia and related intolerance, notably those which go beyond. Therefore, the Commission believes that, in order to ensure a comprehensive approach by the Centre, Article 308 TEC should be used in conjunction with Article 13 TEC as the legal base for the proposal. The reference to Article 13 has no impact on the decision-making procedure as the proposal cannot be regarded as an "incentive measure" under Article 13 paragraph 2.

Article 284 TEC was not proposed by the Commission as part of the legal base for its original proposal, but was added by the Council during negotiations. Article 284 provides that the Commission may, within the limits and the under conditions laid down by the Council in accordance with the provisions of the Treaty, collect any information and carry out any checks required for the performance of the tasks entrusted to it. The Commission accepted this addition by the Council. The Commission can therefore accept that this article should also be used for the recast Regulation, in conjunction with Articles 13 and 308.

5. Explanation of the different articles of the proposed recast Regulation

This proposal maintains the overall structure of the existing Regulation. The following commentary presents those articles which the Commission proposes should be modified. The recitals have been modified where necessary in accordance with the changes proposed to the body of the Regulation. The recitals have also been reviewed to bring them closer to the purpose of setting out concise reasons for the chief provisions of the enacting terms. This has led to the deletion of a number of purely declaratory recitals found in the original Regulation.

Article 2

Article 2 has been split to separate the tasks of the Centre (now in Article 3) from the objectives, in order to provide a clearer presentation. Small textual changes are also proposed, which are intended to clarify that:

- The primary recipients of the information collected by the Centre should be the relevant institutions and authorities of the Community and the Member States responsible for combating racism and xenophobia; and that

- The scope of the phenomena of racism and xenophobia should be interpreted broadly to encompass related intolerance. This change of terminology recognises the increasing importance of phenomena such as Islamophobia, particularly since 11 September 2001 and the current political situation in the Middle East, and mirrors the responsibilities of the Council of Europe (and notably its European Commission on Racism and Intolerance), thus promoting greater synergies.

Article 3

This Article now contains the principal tasks of the Centre. It makes clear that the tasks are intended to serve the objective defined in Article 2 and that the Centre's main activity is the collection of information. In addition, the Article changes the order of the original lists and now separates the tasks into three distinct groups of activities:

- collecting and studying data (paragraphs (a) to (d));

- securing the contribution of civil society in all its forms (paragraph (e));

- using the information to support the Community and the Member States (paragraphs (f) and (g)) and the wider public (paragraph (h)).

The following changes are proposed:

- Paragraph (a): the external evaluators and the Member States recognise that while the comparability of data remains the most important factor for the added value of the Centre, it has not so far proved possible to provide truly comparable data. To do so will require strong co-operation between the Centre and the authorities of the Member States, in particular the National Statistical Offices. The proposed change underlines the importance of efforts to achieve comparability and of co-operation with the Commission and the Member States.

- Paragraphs (b) and (i): the proposed amendments underline the importance of Raxen as the primary data collection instrument of the Centre, anchoring the network in the Member States. The amendments also take over elements from the previous Article 4, most of which is now redundant and which is therefore proposed for deletion.

- Paragraph (d): the changes to this paragraph recognise that the Centre cannot and should not carry out all the necessary studies on its own, but should rather co-operate with other bodies and organisations to encourage the carrying out of research studies which will be of a general European interest in the field of racism and xenophobia. The amendment also takes account of the fact that the Centre has in the past accepted requests for work from EU institutions and others which have not fitted well with its overall work programme and which have therefore deflected it from its primary objective. The amendment requires the Centre to accept such requests only where they are compatible with the work programme agreed by the Executive and Management Boards.

- Paragraph (e): the existing Regulation requires the Centre to "facilitate and encourage the organization of regular round tables" within the Member States. The external evaluators question the added value of this activity, noting that it requires considerable investment by the Centre in terms of human (and occasionally financial) resources and remarking that the organization of such events might fall better to the responsibility of the national, rather than European, authorities. The evaluators conclude that the Centre should focus rather on the organisation of European Round Tables (which Centre has also held in the past). The Consultation with the Member States suggested that they agree with this conclusion. The proposed amendment therefore takes this conclusion, while leaving flexibility to the Centre in how it should promote co-operation with civil society at European level, while continuing to allow the possibility of participation in national events by the Centre's staff.

- Paragraph (f): this amendment simply codifies the change introduced by Council Regulation (EC) No XXX/03 following the decision that all agencies should be required to produce a report on their activities by the same date (15 June) each year. In the case of the Monitoring Centre, which also has to produce a report on the situation of racism and xenophobia in the Union and where the data often take a considerable time to be collated within the Member States, the simplest approach is to separate the two reports.

- Paragraph (h): this amendment overcomes an ambiguity in the original text ("open"), thus clarifying that the documentation resources may be virtual rather than physical and recognises that other such documentation centres already exist (notably at the level of the Council of Europe and other international organisations).

Article 4

The amendments to this article underline the need to add value by focusing on the EU priorities agreed by Member States (such as in the fields of employment and social inclusion) and to avoid duplication with other sources of information and to take account of information provided from national sources. The changes to paragraph 3 adapt the field of operation of the Centre to the modified competence of the Community in the area of racism and xenophobia, particularly following the entry into force of the Treaty of Amsterdam and Council Directive 2000/43/EC implementing the principle of equal treatment irrespective of racial or ethnic origin, adopted under Article 13 TEC and the inclusion of Title IV on asylum, immigration and other policies related to the free movement of persons. Sub-paragraphs (a) and (b) therefore update the previous reference to free movement of persons to take account of the broadened competence in the field of immigration and asylum; sub-paragraph (c) is merely a simplified text; sub-paragraphs (e) and (f) take account of the material scope of Council Directive 2000/43/EC. As stated in the accompanying Communication, the Commission, in common with other stakeholders, believes that the existing wording of the article allows the Centre to focus on aspects of racial violence and incitement to racial hatred (and where legislative action has already been taken under the Treaty on European Union).

Finally, a new paragraph clarifies that the Centre may enter into contracts for the performance of studies and research, in addition to the contracts for data collection with the Raxen network. In addition, it clarifies a legal uncertainty which had arisen in the application of the existing Regulation over the possibility for the Centre to award grants, in particular to international organisations, for activities of common interest.

Former Article 4

The former Article 4, requiring the Member States to provide information to the Centre about relevant bodies in their territories to enable the Centre to establish the Raxen network is now redundant and so has been deleted. Where appropriate, minor provisions have been incorporated into Article 3 above.

Former Article 5

Regulation (EC) No 45/2001 [3] of the European Parliament and of the Council of 18 December 2000 concerns the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data. As the Monitoring Centre is a Community body, Regulation (EC) No 45/2001 applies to the data held and processed by the Monitoring Centre. Former Article 5 is therefore no longer necessary and can be deleted. The recital which accompanied it has been adapted accordingly.

[3] OJ L 8, 12. 1. 2001, p. 1

New Article 5

This article is a codification of the amendment proposed introduced by the Council Regulation of 18 June 2003.

Article 6

Unchanged

Article 7

A small change to this article clarifies the potential for ad hoc co-operation outside the framework of formal agreements negotiated by the Community

Article 8

The amendments to this article flow from the findings of the evaluators and the views of stakeholders consulted by the Commission in preparation for this proposal.

Size of the Management Board

The evaluators noted that the Management Board already consisted of 18 members and that, with enlargement, this was set to rise to 28. They noted that the size of the Board already made decision-making difficult and that the threshold for decisions - a two-thirds majority - was an unnecessarily high hurdle for many decisions. However, they also concluded that the sensitivity of the issue of racism and xenophobia was such that all Member States should feel that they were represented on the Management Board.

The Commission agrees with these points. It concludes, therefore, that all Member States should be represented on the Management Board, but that decision-making should be eased by reducing the majority required for decisions and by devolving as many as possible of the decisions to a strengthened Executive Board (see below). So the majority required is reduced from two-thirds to an absolute majority of the total number of members of the Board, with the chairman holding the casting vote. The Commission believes that an absolute majority, rather than a simple majority (that is a simple majority of those members present), is sufficient to protect minority interests in the Board. The most important decisions to be taken by the Centre - that is the long-term strategic direction, the medium-term, three year work programme, the annual report on the situation regarding racism and xenophobia, the Centre's conclusions and opinions and the appointment of and exercise of disciplinary authority over the Director (this text brings the Regulation into line with the approach adopted for the newer Agencies) - should be reserved for decision by the Management Board, while the remaining decisions should be taken by the strengthened Executive Board to facilitate the decision-making process.

Finally, the Commission proposes that the Management Board in its new form should meet at least once per year, rather than the twice foreseen by the current Regulation. This reflects that fact that more decisions will in future be taken by the strengthened Executive Board.

Membership

The evaluators concluded that the existing Management Board, consisting of independent experts in the field of racism and xenophobia from all the Member States, brought considerable added value to the Centre in terms of the substance of the Centre's work. However, they concluded also that the criteria for the appointment of members of the Board (that is, that they should be persons with appropriate experience in the field of human rights and analysis of racist, xenophobic and anti-Semitic phenomena) did not necessarily qualify them for many of the responsibilities given to the Board by the Regulation, especially in the field of management. The evaluators concluded that a better solution would be for the Board to consist of representatives of Member State Governments, supported by a scientific committee made up of the independent experts now on the Board.

As noted in the accompanying communication, the Commission accepts the evaluators' analysis but does not reach the same conclusion regarding the proposed solution to the difficulty. A large majority of the stakeholders consulted by the Commission, from the existing Board through to some Member State Governments, believed that the Management Board played a vital role in ensuring the independence of the Monitoring Centre. At the same time, many felt that the evaluators' associated finding, that the Centre's links with the authorities of the Member States should be strengthened, was also correct. The Commission therefore sought possible solutions which would meet these two conditions.

The Commission recalls that Council Directive 2000/43/EC implementing the principle of equal treatment irrespective of racial or ethnic origin must be transposed into national law by 19 July 2003. Article 13 of the Directive [4] requires each Member State to designate a body or bodies for the promotion of racial equality by that date. The Directive also requires that these bodies should be able to act independently of Government and to produce reports and recommendations.

[4] Article 13 of Council Directive 2000/43/EC reads:

The persons responsible for the operation of these bodies in the Member States will be both experts in racism and xenophobia and, necessarily, have experience of managing publicly funded bodies. The Commission proposes therefore that the Centre should draw on the skills and experience of these individuals and that the Member States should appoint these persons to the Management Board of the Centre. Not only will these persons bring the appropriate mix of skills and experience to the task, but their independence of action is guaranteed at national level and they have the necessary links to national Governments to be able to take account of national policy priorities and to influence Government policy in the fight against racism and xenophobia. Moreover, there are considerable benefits to be gained by the bodies themselves through their membership of a European network in terms of mutual support and the direct exchange of experience and good practice. The Commission notes that some Member States already appoint the heads or senior members of their bodies to promote racial equality to the Management Board of the Centre.

However, the Commission recognises the variety of approaches taken in the Member States and accepts that there may be equivalent bodies or organisations in the Member States, in addition to those formally designated by the Member States under the terms of Council Directive 2000/43/EC. It proposes therefore that Member States should also be able to appoint the heads of these other bodies if they so wish.

This proposal also has implications for the term of office of the members of the Board. If it was reasonable to limit the mandate of the independent experts under the current system to two terms of three years, that no longer makes sense for members who are appointed on the basis of the positions they hold at national level. The Commission proposes, therefore, that the members so appointed should have no fixed term of office, but that they should hold the position until such time as their responsibilities change at national level, in which case the Member State concerned would be required to inform the Commission and the Director of the Centre and to appoint a new member.

Finally, the Commission proposes that, to maintain its relative importance in an enlarged Management Board and to ensure that its separate responsibilities in the fields of racial discrimination and in the criminal aspects of racism and xenophobia are effectively represented, it should have two seats on the Board. It proposes also that the Management Board should be able to invite to its meetings as observers persons appointed by the candidate countries (that is, currently, Bulgaria, Romania and Turkey). The Commission believes that this will be of assistance to those countries in their path towards membership of the Union.

Article 9

In the light of the findings of the external evaluators and the changes proposed to the Management Board, the Commission proposes to strengthen the Executive Board both in terms of its numbers and of its responsibilities. The Executive Board should be composed of a maximum of 10 persons, including the Chairman, Vice-Chairman of the Management Board and the two representatives of the Commission. This number secures a large enough membership to ensure a spread of views, while maintaining a group small enough to promote effective decision-making. Decisions of the Executive Board should be taken in the same way as on the Management Board, that is by an absolute majority with the Chairman holding the casting vote. The Commission proposes to leave the decision as to whether to include the person appointed by the Council of Europe in the Executive Board to the Management Board itself, and not to impose this in all cases.

The Executive Board should in particular be responsible for determining the annual work programme in the framework of the medium-term programme agreed by the Management Board, being responsible for the process of selecting the Director, adopting the draft and final budgets and approving the accounts. Following the adoption of the Council Regulation of 18 June 2003, responsibility for giving discharge for the budget to the Director has passed to the European Parliament.

The Commission proposes to remove from the Regulation the provision preventing the member appointed by the Council of Europe from voting on issues related to the annual draft and final budgets and the approval of the accounts. In practice, as an independent member, the member appointed by the Council of Europe has the same status as all other members and there is no reason why he or she should not be involved in these aspects. Moreover, this is an entirely artificial distinction, as the decisions on the work programme, in which the Council of Europe member is involved, have a direct impact on the budgetary issues.

Article 10

The amendments to this article clarify the relationship between the Director and the Executive and Management Boards and add a responsibility to ensure that the performance of the Centre is effectively monitored and evaluated, with a consequent duty to report to the Management Board on the results of the evaluation.

The Commission recalls that it made proposals, in the context of its proposals to adapt the Regulations establishing the agencies to the new Financial Regulation, to harmonise the procedures for the appointment of the Directors of the agencies. In the event, the Council decided not to pursue these amendments in that context. The Commission intends, therefore, to bring forward separate proposals in the near future to deal with this question.

Article 11

Unchanged.

Articles 12 and 13

These articles are a codification of the amendment already introduced by the Council Regulation of 18 June 2003.

Articles 14 to 16

These articles have simply been renumbered.

Article 17

This amendment brings the reporting arrangements up to date by requiring the Commission to report on the performance of the Centre three years after the entry into force of the Regulation and every five years thereafter, taking into account the evaluations carried out under Article 10(e).

Article 18

This new article is a standard text in any recast instrument. It repeals the Regulation which is being recast (in this case Council Regulation (EC) No 1035/97) and provides that any references to the repealed Regulation should be read as being to the recast version. It also makes the link to the correlation table in the annex.

Article 19

Now that the seat of the Centre has been agreed upon, the current article on the entry into force of the Regulation is no longer appropriate. This article therefore provides that the Regulation will enter into force on the twentieth day following its publication in the Official Journal.

1035/97 (adapted)

2003/0185 (CNS)

Proposal for a COUNCIL REGULATION on the European Monitoring Centre on Racism and Xenophobia (Recast version)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 13, paragraph 1, rticle 284 and Article 308 thereof,

Having regard to the proposal from the Commission [5],

[5] OJ C [...].

Having regard to the opinion of the European Parliament [6],

[6] OJ C [...].

Having regard to the opinion of the European Economic and Social Committee [7],

[7] OJ C [...].

Having regard to the opinion of the Committee of the Regions,

Whereas:

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(1) Council Regulation (EC) No 1035/97 of 2 June 1997 establishing a European Monitoring Centre on Racism and Xenophobia [8] has been substantially amended [9]. Since further amendments are to be made, it should be recast in the interests of clarity.

[8] OJ L 151, 10.6.1997, p. 1.

[9] [COM(2002) 406 final].

(2) The Commission has produced a report on the activities of the European Monitoring Centre on Racism and Xenophobia, taking into account the findings of an external evaluation [10], which underline the desirability of making certain amendments to Council Regulation (EC) No 1035/97.

[10] See http://europa.eu.int/comm/employment_social/fundamental_rights/pdf/origin/Monitoring Centre_eval2002_en.pdf.

1035/97 (adapted)

1035/97 Recital 2 (adapted)

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(3) The collection and analysis of objective, reliable and comparable information on the phenomena of racism, xenophobia, anti-Semitism and related intolerance, such as Islamophobia and other forms of religious intolerance, are therefore necessary at Community level to provide full information to the Community on those phenomena so as to enable the Community to meet its obligation to respect fundamental rights and to enable it to take account of them in formulating and applying whatever policies and acts it adopts in its sphere of competence.

1035/97 (adapted)

1035/97 Recital 8

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(4) On 15 July 1996 the Council, acting on the basis of Article K.3 of the Treaty on European Union, adopted a Joint Action concerning action to combat racism and xenophobia [11]. The Treaty of Amsterdam strengthened the ability of the Union to promote police and judicial co-operation to prevent and combat racism and xenophobia.

[11] OJ L 185, 24. 7. 1996, p. 5.

1035/97 (adapted)

1035/97 Recital 10

(5) The European Council meeting in Corfu on 24 and 25 June 1994 determined to step up efforts to define, at European Union level, a global strategy aimed at combating acts of racist and xenophobic violence. To this end it set up a Consultative Commission charged with making recommendations on combating racism and xenophobia.

1035/97 Recital 11

(6) The European Council meeting in Cannes on 26 and 27 June 1995 called on the Consultative Commission to extend its work in order to study, in close cooperation with the Council of Europe, the feasibility of a European Monitoring Centre on Racism and Xenophobia.

1035/97 Recital 12

(7) The conclusions of this feasibility study were submitted to the European Council meeting in Florence on 21 and 22 June 1996.

1035/97 Recital 13

(8) The European Council meeting in Florence reaffirmed the Union's determination to combat racism and xenophobia with the utmost resolve and approved the principle underlying the establishment of a European Monitoring Centre.

1035/97 Recital 14 (adapted)

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(9) In order to carry out this task of collecting and analysing information on racism, xenophobia, anti-Semitism, and related intolerance as well and as independently as possible and in order to maintain close links with the Council of Europe, it is necessary to establish an autonomous body, the European Centre on Racism and Xenophobia (Centre), at Community level with its own legal personality.

ê 1035/97 Recital 15 (adapted)

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(10) The phenomena of racism, xenophobia, anti-Semitism and related intolerance ï involve many complex, closely interwoven aspects which are difficult to separate. As a result, the Centre must be given the overall task of collecting and analysing information concerning several of the Community's spheres of activity. The Centre's task will concentrate on areas in which sound knowledge of those problems is particularly necessary for the Community in its activities.

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(11) The Community has also to contribute to the progressive establishment of an area of freedom, security and justice

(12) The Council has adopted Directive (EC) 2000/43 implementing the principle of equal treatment irrespective of racial or ethnic origin, which requires the Member States to take measures to prohibit discrimination on the grounds of racial and ethnic origin in the fields of employment and occupation, education, social protection, social advantages and access to and the supply of goods and services.

1035/97 Recital 16

(13) Racism and xenophobia are phenomena which manifest themselves at all levels within the Community: local, regional, national and Community, and therefore the information which is collected and analysed at Community level can also be useful to the Member States' authorities in formulating and applying measures at local, regional and national level in their own spheres of competence.

1035/97 Recital 17

(14) Therefore the Centre will make the results of its work available to both the Community and the Member States.

1035/97 Recital 18

(15) In the Member States, there are numerous outstanding organizations which study racism and xenophobia.

1035/97 Recital 19

(16) The coordination of research and the creation of a network of organizations will enhance the usefulness and effectiveness of such work.

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(17) The Management Board of the Centre should consist of independent persons with the necessary expertise in the fight against racism and experience of running relevant public bodies; to promote effective decision-making, certain responsibilities should be exercised by a strengthened Executive Board.

1035/97 Recital 20

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(18) In order to enhance cooperation and avoid overlap or duplication of work, the tasks assigned to the Centre pre-suppose close links with the Council of Europe, which has considerable experience in this field, as well as cooperation with other organizations in the Member States and international organizations which are competent in the fields related to the phenomena of racism and xenophobia. The Management Board should also be able to invite observers from the Candidate Countries to its meetings. ï

1035/97 Recital 21

(19) The Centre will itself be able to decide on the administrative arrangements for cooperating with those organizations. On the other hand, it is for the Community to conclude, on behalf of the Centre, an agreement with the Council of Europe for the purpose of establishing close cooperation between the latter and the Centre. The same will apply to the conclusion of any agreements with other international organizations or with third countries which may prove necessary for the Centre to carry out its tasks.

1035/97 Recital 22 (adapted)

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(20) The European Parliament and the Council have adopted Regulation (EC) No 45/2001 [12] of 18 December 2000 concerning the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data. This Regulation applies directly to the Centre, making the previous provisions on the processing of personal data redundant.

[12] OJ L 8, 12. 1. 2001, p.1.

1035/97 Recital 23

(21) The Centre must enjoy maximum autonomy in the performance of its tasks.

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(22) To have maximum impact on the policies and practices of the Union and the Member States, the Centre should, without prejudice to its autonomy, take account in its work programmes of the priorities of the Community.

(23) Co-operation with the relevant authorities of the Member States is essential to promote the collection of comparable data with maximum added value at European level.

1035/97 (adapted)

(24) The Court of Justice must have jurisdiction to hear and determine, pursuant to an arbitration clause, disputes regarding the contractual liability of the Centre as well as disputes on the non-contractual liability of the Centre. The Court must also have jurisdiction to rule on actions brought against the Centre under the conditions laid down in Article 230 of the Treaty.

1035/97 (adapted)

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(25) This Regulation should, where appropriate, be reviewed on expiry of a three-year period and every five years thereafter, with a view to deciding whether or not to modify or extend the Centre's tasks, more especially depending on any changes in Community powers.

1035/97 (adapted)

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(26) Article 13, paragraph 1 of the Treaty empowers the Council to take appropriate action to combat discrimination on a number of grounds, including racial and ethnic origin and religion and belief. However, the phenomena of racism and xenophobia are wider than racial and ethnic discrimination alone, which makes it necessary to refer also to Article 308 of the Treaty in order to ensure a comprehensive approach of the Centre. These Articles provide, in conjunction with Article 284 of the Treaty, the competence to collect and analyse information on the phenomena of racism and xenophobia through a specialized, autonomous body with its own legal personality.

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(27) This Regulation respects the fundamental rights and observes the principles recognised in particular by the European Convention on Human Rights, in particular Articles 10, 11 and 14 thereof, and by the Charter of Fundamental Rights of the European Union, and notably Chapters II and III thereof,

1035/97

HAS ADOPTED THIS REGULATION:

Article 1

A European Monitoring Centre on Racism and Xenophobia (hereinafter referred to as «the Centre») is hereby established.

Article 2

1035/97 (adapted)

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Objective

The prime objective of the Centre shall be to provide the relevant institutions and authorities of ï the Community and its Member States, more especially within the fields referred to in Article 4 (3), with objective, reliable and comparable data at European level on the phenomena of racism, xenophobia, anti-Semitism and related intolerance in order to help them when they take measures or formulate courses of action within their respective spheres of competence. In so doing, the Centre shall contribute to the development of the Union as an area of freedom, security and justice.

Article 3

Tasks

1. To meet the objective set in Article 2 , the Centre shall gather information on the extent and development of the phenomena and manifestations of racism, xenophobia, anti-Semitism and related intolerance, analyse their causes, consequences and effects and examine examples of good practice in dealing with them.

To these ends, the Centre shall:

(a) in co-operation with the Commission and the Member States, develop methods to improve the comparability, objectivity and reliability of data at Community level;

(b) set up and coordinate a European Racism and Xenophobia Information Network (Raxen);

(c) collect, record and analyse information and data;

(d) carry out, cooperate with or encourage scientific research and surveys, preparatory studies and feasibility studies, including, where appropriate and compatible with its annual work programme ï, at the request of the European Parliament, the Council or the Commission. It shall also organize meetings of experts and, whenever necessary, set up ad hoc working parties;

(e) co-operate with civil society, including non-governmental organisations, the social partners, research centres and representatives of competent public authorities and other persons or bodies involved in dealing with racism and xenophobia, in particular by promoting dialogue at European level and participating where appropriate in discussions or meetings at national level ï;

Regulation XX/03 of 18 June 2003, Article 1(1) (adapted)

(f) publish an annual report on the situation regarding racism and xenophobia in the Community, also highlighting examples of good practice, and an annual report on the Centre's own activities;

1035/97 (adapted)

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(g) formulate conclusions and opinions for the Community and its Member States;

(h) set up documentation resources accessible to the public, promoting co-operation and avoiding duplication with other sources of information ï;

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2. The Network referred to in point (b) shall constitute the prime source of information for the Centre. It shall be designed so as to ensure the provision of objective, reliable and comparable information, drawing on the expertise of a variety of organizations in each Member State and taking account of the need to involve national authorities in the collection of data

1035/97 Article 3 (adapted)

Article 4

Working methods and areas of activity

1. The Centre shall carry out its tasks within the competencies of the Community and in the light of the objectives adopted in its annual programme and with due regard to the available budgetary resources.

1035/97

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2. In pursuing its activities, the Centre shall, in order to avoid duplication and to guarantee the best possible use of resources, take account of existing information from whatever source and in particular of ï activities already carried out by the Community institutions and by other institutions, bodies and competent national and international organizations, particularly the Council of Europe, and shall ensure through close cooperation with the Council of Europe that it provides added value. In this context, it shall take particular account of the priorities of the Community.

3. The information and data to be collected and processed, the scientific research, surveys and studies to be conducted or encouraged shall be concerned with the extent, development, causes and effects of the phenomena of racism and xenophobia, particularly in the following fields:

1035/97 (adapted)

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(a) entry, residence and free movement of persons in the Community;

new

(b) immigration and asylum

1035/97 (adapted)

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(c) information and communication media;

(d) education, vocational training and youth;

(e) social policy including employment, social security and healthcare;

(f) access to and supply of goods and services;

(g) culture.

new

4. The Centre may enter into contractual relations, in particular subcontracting arrangements, with other organizations, in order to accomplish any tasks which it may entrust to them. The Centre may also award grants to promote appropriate cooperation and joint ventures, in particular to the international organizations referred to in Article 7.

1035/97 (adapted)

XX/03, Article 1(2) (adapted)

Article 5

Access to Documents

XX/03, Article 1(2)

1. Regulation (EC) No 1049/2001 of the European Parliament and of the Council shall apply to documents held by the Centre.

2. The Management Board shall adopt the practical arrangements for implementing Regulation (EC) No 1049/2001 within six months of entry into force of Council Regulation (EC) No XX/2003 of 18 June 2003 amending Regulation (EC) No 1035/97 establishing a European Monitoring Centre on Racism and Xenophobia.

3. Decisions taken by the Centre pursuant to Article 8 of Regulation (EC) No 1049/2001 may give rise to the lodging of a complaint to the Ombudsman or form the subject of an action befor the Court of Justice of the European Communities, under the conditions laid down in Articles 195 and 230 of the Treaty respectively.

1035/97

Article 6

Legal personality and capacity

The Centre shall have legal personality. It shall enjoy, in each of the Member States, the most extensive legal capacity accorded to legal persons under their laws. In particular, it may acquire or dispose of movable and immovable property and may be a party to legal proceedings.

Article 7

Cooperation with national and international organizations

1. To help it carry out its tasks, the Centre shall cooperate with organizations in the Member States or international, governmental or non-governmental organizations competent in the field of racist and xenophobic phenomena.

1035/97 (adapted)

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2. The administrative arrangements for the cooperation referred to in paragraph 1 shall be subject to the approval of the Executive Board.

3. The Centre shall coordinate its activities with those of the Council of Europe, particularly with regard to its programme of activities pursuant to Article 9 (2) (a). To this end, the Community shall, in accordance with the procedure provided for in Article 300 of the Treaty, enter into an agreement, on behalf of the Centre, with the Council of Europe for the purpose of establishing close cooperation between the latter and the Centre. This agreement shall include the appointment by the Council of Europe of a person to sit on the Centre's Management Board.

1035/97

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Should agreements with other international organizations or with third countries prove necessary for the Centre to carry out its tasks efficiently, the Community shall, following the same procedure as mentioned above, enter into such agreements, on behalf of the Centre. This provision shall not prevent ad hoc co-operation with such organizations or third countries.

Article 8

Management Board

1035/97 (adapted)

new

1. The Centre's Management Board shall be composed of persons with appropriate experience in the analysis of the phenomena of racism, xenophobia, anti-Semitism and related intolerance and in the management of public sector organisations, as follows:(a) one independent person appointed by each Member State;

(b) one independent person appointed by the European Parliament;

(c) one independent person appointed by the Council of Europe pursuant to Article 7 (3), and

(d) two representative s of the Commission. new (adapted)

The persons referred to in point (a) shall be the persons responsible for the running of the body or bodies for the promotion of equal treatment of all persons without discrimination on the grounds of racial or ethnic origin provided for by Article 13 of Council Directive 2000/43/EC or of an equivalent independent public body.

1035/97

Each member shall have a deputy appointed on a similar basis.

1035/97 (adapted)

2. The names of the members and deputy members of the Management Board shall be notified to the Commission for publication in the Official Journal of the European Union.

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3. Where a member appointed by a Member State no longer holds the responsibilities at national level by reason of which he or she was appointed, the Member State concerned shall forthwith inform the Commission and the Director of the Centre and shall appoint a new member in accordance with paragraph 1.

1035/97 (adapted)

new

The Management Board shall elect its Chairman and Vice-Chairman and the other members of the Executive Board referred to in Article 9.

Each member of the Management Board, or in his or her absence, his or her deputy, shall have one vote. Decisions shall be taken by an absolute majority of the votes cast. The Chairman shall have the casting ï vote.

4. The Management Board shall take the decisions necessary for the operation of the Centre. In particular, it shall:

(a) determine the Centre's long-term strategy and medium-term work programme, covering a three-year period in accordance with the budget and the available resources; this programme may be reviewed when necessary during the year;

XX/03, Article 1(3) (adapted)

(b) adopt the two annual reports referred to in Article 3(f) and its conclusions and opinions and forward them to the European Parliament, the Council, the Commission, the European Economic and Social Committee and the Committee of the Regions; it shall ensure publication of the annual reports referred to in Article 3(f); the annual report on the Centre's activities shall be transmitted by 15 June at the latest to the European Parliament, the Council, the Commission, the Court of Auditors, the European Economic and Social Committee and the Committee of the Regions;

1035/97 (adapted)

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(c) appoint the Centre's Director, on the basis of the selection, delegated to and carried out by the Executive Board.

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(d) exercise disciplinary authority over the Centre's director.

1035/97 (adapted)

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5. The Management Board shall adopt its rules of procedure. The Board shall meet, as convened by its Chairman, at least once a year. It may delegate any of its responsibilities to the Executive Board.

XX/03, Article 1(3)

6. The Centre shall forward annually to the budgetary authority any information relevant to the outcome of the evaluation procedures.

new

7. The Management Board may, after consulting the Commission, invite to its meetings persons appointed by the countries which are candidates for accession to the Union. Such persons shall be appointed by the countries concerned by analogy with the criteria and procedures foreseen in paragraphs 1 and 2. They shall have the status of observers.

1035/97 (adapted)

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Article 9

Executive Board

1. The Executive Board shall be composed of the Chairman of the Management Board, the Vice-Chairman and a maximum of eight other members of the Management Board, including the Commission representatives.

new

Each member of the Executive Board, or in his or her absence, his or her deputy, shall have one vote. Decisions shall be taken by an absolute majority of the votes cast. The Chairman shall have the casting vote.

1035/97

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2. The Executive Board shall supervise the work of the Centre, monitor the preparation and execution of programmes and prepare the meetings of the Management Board with the assistance of the Centre's Director. It shall in particular:

new

(a) determine the Centre's annual programme of activities, in accordance with the long-term strategy and medium term work programme determined by the Management Board and with the budget and available resources; this programme may be reviewed when necessary during the year;

(b) on the basis of proposals from the Commission, carry out the selection of the Centre's Director;

(c) adopt the Centre's annual draft and final budgets;

(d) approve the accounts.

1035/97

The Executive Board shall also perform any task entrusted to it by the Management Board, in accordance with the latter's rules of procedure.

Article 10

Director

1. The Centre shall be headed by a Director appointed by the Management Board on a proposal from the Commission for a period of four years, which shall be renewable.

1035/97 (adapted)

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2. The Director shall be responsible, under the supervision of the Management and Executive Boards, for:

(a) performance of the tasks referred to in Article 3;

(b) preparing and implementing the Centre's medium-term and annual programmes of activities;

(c) preparing the annual reports, conclusions and opinions as referred to in this Regulation;

1035/97

(d) all staff matters and matters of day-to-day administration.

new

(e) the implementation of effective monitoring and evaluation procedures relating to the performance of the Centre against its objectives according to professionally recognised standards. The Director shall report annually to the Management Board on the results of the evaluation.

1035/97 (adapted)

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3. The Director shall be accountable for the management of his or her activities to the Management Board and the Executive Board under their respective responsibilities and shall attend their meetings .

4. The Director shall be the Centre's legal representative.

1035/97

Article 11

Staff

1. The staff of the Centre shall be subject to the Regulations and Rules applicable to officials and other servants of the European Communities.

2. The Centre shall exercise in respect of its staff the powers devolved to the appointing authority.

3. The Management Board shall, in agreement with the Commission, adopt the appropriate implementing rules.

XX/03, Article 1(4)

Article 12

Drawing up of the budget

1. Estimates of all the revenue and expenditure of the Centre shall be prepared for each financial year, corresponding to the calendar year, and shall be shown in the budget of the Centre.

2. The revenue and expenditure shown in the budget of the Centre shall be in balance.

3. The revenue of the Centre shall, without prejudice to other resources, comprise:

(a) a subsidy from the Community, entered in the general budget of the European Union (Commission section);

(b) payments received for services rendered;

(c) any financial contributions from the organisations referred to in Article 7;

(d) any voluntary contribution from the Member States.

4. The expenditure of the Centre shall include staff remuneration, administrative and infrastructure costs, operating expenses and expenses resulting from contracts entered into with the institutions and bodies belonging to the Raxen network or with third parties.

5. Each year the Management Board, on the basis of a draft drawn up by the director, shall produce an estimate of revenue and expenditure for the Centre for the following financial year. This estimate, which shall include a draft establishment plan, shall be forwarded by the Management Board to the Commission by 31 March at the latest.

6. The estimate shall be forwarded by the Commission to the European Parliament and the Council (hereinafter referred to as the "budgetary authority") together with the preliminary draft budget of European Union.

7. On the basis of the estimate, the Commission shall enter in the preliminary draft general budget of the European Union the estimates it deems necessary for the establishment plan and the amount of the subsidy to be charged to the general budget, which it shall place before the budgetary authority in accordance with Article 272 of the Treaty.

8. The budgetary authority shall authorise the appropriations for the subsidy to the Centre. The budgetary authority shall adopt the establishment plan for the Centre.

9. The budget of the Centre shall be adopted by the Management Board. It shall become final following final adoption of the general budget of the European Union. Where appropriate, it shall be adjusted accordingly.

10. The Management Board shall, as soon as possible, notify the budgetary authority of its intention to implement any project which may have significant financial implications for the funding of its budget, in particular any projects relating to property such as the rental or purchase of buildings. It shall inform the Commission thereof.

Where a branch of the budgetary authority has notified its intention to deliver an opinion, it shall forward its opinion to the Management Board within a period of six weeks from the date of notification of the project.

XX/03, Article 1(5)

Article 13

Implementation of the budget

1. The Director shall implement the budget of the Centre.

2. By 1 March at the latest following each financial year, the Centre's accounting officer shall communicate the provisional accounts to the Commission's accounting officer together with a report on the budgetary and financial management for that financial year. The Commission's accounting officer shall consolidate the provisional accounts of the institutions and decentralised bodies in accordance with Article 128 of the general Financial Regulation.

3. By 31 March at the latest following each financial year, the Commission's accounting officer shall forward the Centre's provisional accounts to the Court of Auditors, together with a report on the budgetary and financial management for that financial year. The report on the budgetary and financial management for that financial year shall also be forwarded to the European Parliament and the Council.

XX/03, Article 1(5) (adapted)

4. On receipt of the Court of Auditors' observations on the Centre's provisional accounts, pursuant to Article 129 of the general Financial Regulation, the Director shall draw up the Centre's final accounts under his or her own responsibility and forward them to the Management Board for an opinion.

XX/03, Article 1(5)

5. The Management Board shall deliver an opinion on the Centre's final accounts.

6. The Director shall, by 1 July at the latest following each financial year, forward the final accounts to the European Parliament, the Council, the Commission and the Court of Auditors, together with the Management Board's opinion.

7. The final accounts shall be published.

XX/03, Article 1(5) (adapted)

8. The Director shall send the Court of Auditors a reply to its observations by 30 September at the latest. He or she shall also send this reply to the Management Board.

XX/03, Article 1(5)

9. The Director shall submit to the European Parliament, at the latter's request, any information required for the smooth application of the discharge procedure for the financial year in question, as laid down in Article 146(3) of the general Financial Regulation.

10. The European Parliament, on a recommendation from the Council acting by a qualified majority, shall, before 30 April of year N + 2, give a discharge to the Director in respect of the implementation of the budget for year N.

11. The financial rules applicable to the Centre shall be adopted by the Management Board after the Commission has been consulted. They may not depart from Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities [13] unless specifically required for the Centre's operation and with the Commission's prior consent.

[13] OJ L 357, 21.12.2002, p.72 with corrigendum in OJ L 2, 7.1.2003, p.39

1035/97, Article 13 (adapted)

Article 14

Translation

The translation service required by the operation of the Centre shall, in principle, be provided by the Translation Centre for bodies of the European Union established by Regulation (EC) No 2965/94 [14].

[14] OJ L 314, 7. 12. 1994, p. 1.

1035/97, Article 14

Article 15

Privileges and immunities

The Protocol on the Privileges and Immunities of the European Communities shall apply to the Centre.

1035/97, Article 15

Article 16

Jurisdiction of the Court of Justice

1. The contractual liability of the Centre shall be governed by the law applicable to the contract in question.

The Court of Justice shall have jurisdiction pursuant to an arbitration clause contained in a contract concluded by the Centre.

2. In the case of non-contractual liability, the Centre shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by the Centre or its servants in the performance of their duties.

The Court of Justice shall have jurisdiction in disputes relating to compensation for any such damage.

1035/97, Article 15 (adapted)

3. The Court of Justice shall have jurisdiction in actions brought against the Centre under the conditions provided for in Article 230 of the Treaty.

1035/97, Article 16 (adapted)

new

Article 17

Reporting arrangements

During the third year following the entry into force of this Regulation, and every five years thereafter, the Commission shall forward to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions a progress report on the Centre's performance, taking into account the evaluations carried out in accordance with Article 11(e), together with proposals, if appropriate, to modify or extend its tasks, taking into account, in particular, the development of Community powers in the field of racism and xenophobia.

Article 18

Repeal

1. Regulation (EC) No 1035/97 is hereby repealed from the date of entry into force of this Regulation.

2. References to the repealed Regulation shall be construed as references to this Regulation and are to be read in accordance with the correlation table in the Annex hereto.

1035/97 Article 17 (adapted)

Article 19

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, [...]

For the Council

The President

ANNEX

Correlation Table

Council Regulation (EC) No 1035/97 // This Regulation

Article 1 // Article 1

Article 2(1) // Article 2

Article 2(2), introductory words // Article 3 (1), first subparagraph and second subparagraph, introductory words

Article 2(2)(a) // Article 3 (1) (c)

Article 2(2)(b) // -

Article 2(2)(c) // Article 3 (1) (d)

Article 2(2)(d) // Article 3 (1) (h)

Article 2(2)(e) // Article 3 (1) (g)

Article 2(2)(f) // Article 3 (1) (a)

Article 2(2)(g) // Article 3 (1) (f)

Article 2(2)(h) // Article 3 (1) (b)

Article 2(2)(i) // Article 3 (1) (e)

- // Article 3(2)

Article 3(1) and (2) // Article 4(1) and (2)

Article 3(3)(a) // Article 4(3)(a)

- // Article 4(3)(b)

Article 3(3)(b) // Article 4(3)(c)

Article 3(3)(c) // Article 4(3)(d)

Article 3(3)(d) // Article 4(3)(e)

Article 3(3)(e) // Article 4(3)(f)

Article 3(3)(f) // Article 4(3)(g)

- // Article 4(4)

Article 4 // -

Article 5 // -

Article 5a // Article 5

Article 6 // Article 6

Article 7 // Article 7

Article 8(1), first subparagraph // Article 8(1), first subparagraph

- // Article 8(1), second subparagraph

Article 8(1), second subparagraph // Article 8(1), third subparagraph

Article 8(2), first subparagraph, first sentence // Article 8(2)

Article 8(2), first subparagraph, second sentence // -

- // Article 8(3), first subparagraph

Article 8(2), first subparagraph, third sentence // Article 8(3), second subparagraph

Article 8(2), second subparagraph // Article 8(3), third subparagraph

Article 8(3), introductory words // Article 8(4), introductory words

Article 8(3) (a), (b) and (c) // Article 8(4) (a), (b) and (c)

Article 8(3) (d) and (e) // -

- // Article 8(4)(d)

Article 8(4) // Article 8(5)

Article 8(5) // Article 8(6)

- // Article 8(7)

Article 9(1) // Article 9(1), first subparagraph

- // Article 9(1), second subparagraph

Article 9(2), first sentence // Article 9(2), first subparagraph, first sentence

- // Article 9(2), first subparagraph, second sentence

Article 9(2), second sentence // Article 9(2), second subparagraph

Article 10(1) // Article 10(1)

Article 10(2), introductory words // Article 10(2), introductory words

Article 10(2)(a), (b), (c) and (d) // Article 10(2)(a), (b), (c) and (d)

- // Article 10(2)(e)

Article 10(3) and (4) // Article 10(3) and (4)

Article 11 // Article 11

Article 12 // Article 12

Article 12a // Article 13

Article 13 // Article 14

Article 14 // Article 15

Article 15 // Article 16

Article 16 // Article 17

- // Article 18

Article 17 // Article 19

- // Annex I

>TABLE POSITION>