COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second paragraph of Article 251 (2) of the EC Treaty concerning the Council common position on the proposal for a Regulation of the European Parliament and the Council on measures to promote the full integration of the environmental dimension into the development process of the developing countries

1999/0020 (COD)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second paragraph of Article 251 (2) of the EC Treaty concerning

the Council common position on the proposal for a Regulation of the European Parliament and the Council on measures to promote the full integration of the environmental dimension into the development process of the developing countries

1. BACKGROUND

The Commission's proposal for a Regulation (COM (1999) 36 final and 99/0020 (COD))was adopted on 28 January 1999. It was forwarded to the European Parliament on 28 January 1999 and to the Council on 29 January 1999.

The European Parliament delivered its opinion on first reading on 5 May 1999.

The political agreement of the Council on a draft common position was finalised at working party level on 25 October 1999. The Council formally adopted the common position on 17th December 1999.

The Economic and Social Committee delivered its opinion on 7 July 1999. The Committee of the Regions has informed the Council that it will not be delivering an opinion on this proposal.

2. aim of the commission proposal

This proposal is seen as a crucial instrument for helping the Community to abide by its legal and political commitments to environmental protection in the context of sustainable development. Its purpose is to ensure the continuation of the measures implemented under Council Regulation (EC) No 722/97 of 22 April 1997 after it expires on 31 December 1999. A new legal instrument is proposed which takes account of the relevant developments within the Community and in the environment sphere internationally as well as of experience gained from the implementation of the existing rules. The draft Regulation defines the management framework for budget heading B7-6200, the financial instrument most specifically available to the EC for honouring the aforesaid commitments.

3. Comments on the common position

3.1. General remark

The Commission has drawn up a modified proposal which incorporates a number of new provisions following Parliament's examination on first reading, takes account of the deliberations within the Council and features a number of changes dictated by the entry into force of the Amsterdam Treaty.

3.2. Amendments proposed by Parliamentary on first reading

On the basis of a report by Mrs Van Putten, on 5 May 1999 Parliament approved the Commission proposal on first reading, subject to 53 amendments.

The Commission has accepted, in whole or in part, 28 amendments proposed by the EP, which it has, in some cases, reworded or inserted into another part of the Regulation as compared with the initial proposal. Some amendments became superfluous following the clarifications made to the text.

The amendments or important parts of amendments which the Commission could not accept fall into one or more of the following categories:

- Provision of details of the topics and activities already covered by other parts of the Regulation and/or felt to encumber the structure and balance of the Regulation without contributing to its exhaustiveness;

- other amendments deemed already catered for in the initial version of the draft Regulation;

- quotations from details relating to various strategic documents and applicable legal acts considered repetitive for the purposes of the regulation;

- amendments concerning the interpretation of the scope of the regulation, which were felt to cover too broad or too narrow a field;

- management questions falling within the Commission's competence;

- amendments inconsistent with standard wordings and practice in similar regulations;

- amendments which were insufficiently clear, repetitive, impossible to put into practice or too restrictive.

In general, there is a great convergence of views between the Commission and the Council on all the points raised by Parliament concerning the substance of the Regulation.

3.3. New provisions introduced by the Council

The Council has introduced no new provisions concerning the substance of the Regulation.

3.4. Points of divergence between the modified Commission proposal and the Council's common position

At this stage, the Commission maintains its basic reservations concerning the following aspects of the Council's common position:

- financial reference amount: the Commission does not object to the inclusion of a financial reference but considers that the amount cannot be fixed until agreement has been reached between the two wings of the legislative and budgetary authority, with particular consideration for the approval of the budget for the year 2000;

- duration of the Regulation: The Commission considers that bearing in mind the average duration of the activities to be funded under the proposed Regulation and the human resources available for implementing and evaluating them, it is preferable not to set an expiry date for the validity of the legal instrument. The modified proposal (as well as the provisions foreseen in article 11 paragraph 2 of the common position) makes provision for its amendment or repeal on the basis of an overall evaluation to be made after four years of implementation;

- committee procedures: in the matter of procedure, the common position lays down that decisions concerning draft measures for an amount in excess of EUR2 million will be taken via a management committee. Given the nature of the decisions to be taken and the funding envisaged for the duration of the programme, the Commission nonetheless considers that it would be more appropriate for the geographically determined committee assisting the Commission in its implementing powers to be of the advisory type. The Commission has also opposed the provision introduced by the Council's common position where the strategy guidelines to be presented once a year should be submitted for the approval of a Committee operating in accordance with the management procedure.

4. Conclusions

The Commission and the Council have seen fit to adopt more than half of the amendments proposed by Parliament in first reading, thus revealing a great concordance of views between the three institutions as to the purpose and scope of the proposed Regulation.

However, as regards the horizontal aspects mentioned in point 3.4, the Commission adopts a position which is essentially different from that of the Council in that it rallies more closely to the concerns expressed by Parliament. Indeed, by maintaining its position on these aspects and not endorsing the common position, the Commission has obliged the Council to adopt the common position by unanimous vote.

5. Commission statements

The statements submitted by the Commission for inclusion in the Council minutes are attached. The first four set out the Commission's reasons for opposing the solutions introduced by the Council with regard to various horizontal aspects, i.e. the arrangements for the exercise of the implementing powers conferred on the Commission and for the adoption of the strategy guidelines, the amount of funding and the duration of the Regulation. The fifth reflects a concern expressed by various delegations for further information on the awarding of contracts to operators belonging to third countries.

Annexes :

1. Commission statement on Art. 9 and recital No 19 of the common position

2. Commission statement on Art. 8(2) of the common position

3. Commission statement on Art. 7 first subparagraph of the common position

4. Commission statement on Art. 11(1) second subparagraph of the common position

5. Commission statement on Art. 8(8) of the common position

ANNEX 1

Commission statement on Art. 9 and recital No 19 of the common position

The Commission regrets the fact that in this case the Council has amended the Commission's proposal by substituting a management procedure for the advisory procedure; more precisely, it considers that, apart from the fact that, in the light of the criteria defined in Article 2 of Council Decision No 1999/468/EC of 28 June 1999 (laying down the procedures for the exercise of implementing powers conferred on the Commission), the management measures aimed at by this Regulation could not be considered as relating to the implementation of a programme with substantial budgetary implications, the proposed advisory committee procedure (as provided for in Article 3 of the aforementioned Council Decision) would be the procedure most suited to the requirements of the matter.

The Commission is therefore unable to endorse the common position issued by the Council.

ANNEX 2

Commission statement on Art. 8(2) of the common position

The Commission, whilst having demonstrated its readiness to accept that the exchange of views required to take place once a year in the context of a joint meeting of the geographically-determined Committees responsible for development assisting la Commission, should be held on the basis of the presentation not of the « general guidelines for the operations to be carried out in the year ahead» (as provided for in the Commission's initial proposal) but of the « strategy guidelines and priorities for the implementation of the operations to be carried out in the year ahead», is however unable to endorse the Council's decision to require that (before their adoption) these guidelines and priorities be submitted for approval according to the arrangements laid down (in the new « Committee procedure» decision) for the management procedure.

The Commission is therefore unable to endorse the common position issued by the Council.

ANNEX 3

Commission statement on Art. 7 first subparagraph of the common position

Whilst acknowledging that, having regard to point 1 of the Declaration of the European Parliament, the Council and the Commission of 6 March 1995 concerning the incorporation of financial provisions into the legislative instruments, as echoed and amplified by point E 33 of Part II of the Interinstitutional Agreement of 6 May 1999 between the European Parliament, the Council and the Commission on budgetary discipline and the improvement of the budgetary procedure, a provision whereby the legislative power determines the amount of funding for the programme concerned for the whole of its duration needs to be incorporated into this legislative instrument, the Commission considers that the amount of funding must be determined after consultation between the three institutions (European Parliament, Council and Commission) and after agreement has been reached between the two wings of the legislative and budgetary authority.

ANNEX 4

Commission statement on Art. 11(1) second subparagraph of the common position

The Commission regrets the fact that the Council has amended the Commission's proposal by opting for the introduction of a limited life-span for this regulation. More precisely, it considers that the nature of the various types of operation provided for is not confined to operations of a « pilot » character which might warrant a limited lifespan for the Regulation.

The Commission takes the view, moreover, that in view of the concern to make operations (and measures) as effective as possible, care should be taken not to influence the results of the overall evaluation of the activities financed on the basis of this Regulation to be carried out by the Commission, submitted (to the Council and the European Parliament) four years after the entry into force of the Regulation and accompanied by recommendations concerning the future of the Regulation and, if appropriate, proposals for its amendment or repeal.

The Commission is therefore unable to endorse the common position issued by the Council.

ANNEX 5

Commission statement on Art. 8(8) of the common position

The Commission first wishes to clearly establish the following:

Operators of third countries may tender for and be awarded contracts under this Regulation only in exceptional cases where the Commission ascertains that :

a) at the time when invitations to tender are published, local circumstances are such that there are no European or local operators on the market capable of submitting tenders for the services, supplied or works required;

b) at the time when the contracts are awarded, no European or local operator has submitted a tender which satisfies the requirements of technical conformity and economic viability.

A decision to award a contract to an operator originating in a third country can therefore only be an exception, taken case by case, by the central Commission departments.

In (exceptional) cases where, in connection with the implementation of this Regulation, access of operators of third countries (other than developing countries) to invitations to tender and contracts has been approved and decided on, the Commission undertakes to make this fact known as part of its obligation to convey information to the Committee, the Member States and the Council (and the European Parliament) under Articles 8(4), 10(3), and 10(1) of the Regulation respectively.