Report from the Commission to the Council on the results of the application of Article 13(9) and Articles 22, 23 and 24 of Council Directive 2000/29/EC of 8 May 2000 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community
Date: 2002-11-22
Institutions: European Commission
Subjects: EU financing, application of EU law, destruction of crops, plant health control, plant health legislation

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 22.11.2002
COM(2002) 644 final

REPORT FROM THE COMMISSION TO THE COUNCIL

on the results of the application of Article 13(9) and Articles 22, 23 and 24 of Council
Directive 2000/29/EC of 8 May 2000 on protective measures against the introduction
into the Community of organisms harmful to plants or plant products and against their
spread within the Community

   
REPORT FROM THE COMMISSION TO THE COUNCIL

on the results of the application of Article 13(9) and Articles 22, 23 and 24 of Council
Directive 2000/29/EC of 8 May 2000 on protective measures against the introduction
into the Community of organisms harmful to plants or plant products and against their
spread within the Community

Article 26 of Council Directive 2000/29/EC of 8 May 2000 on protective measures against the
introduction into the Community of organisms harmful to plants or plant products and against
their  spread  within  the  Community1  stipulates  that  "by  20 January  2002  at  the  latest,  the
Commission shall examine the results of the application of Article 13(9) and Articles 22, 23
and  24  and  submit  to  the  Council  a  report,  accompanied  by  any  necessary  proposals  for
amendments."

Accordingly,  this  report  assesses  the  results  of  the  application  of  Article 13(9)  (inspection
infrastructures)  and  Articles 22,  23  and  24  (solidarity  and  liability)  of  the  Directive.  In
accordance with Article 26 of the Directive, the report will also propose amendments  to the
legislation in force.

1.

INTRODUCTION

The concepts of solidarity and liability stem from the proposals put forward in the document
"Completing  the  internal  market:  White  Paper  from  the  Commission  to  the  European
Council", presented on 14 June 1985 (COM(85) 310 final). Paragraphs 39 to 43 of the White
Paper present a number of specific actions in the field of plant health protection. Paragraph 41
stipulates  "Furthermore,  Member  States  should  cooperate  in  fighting  fraudulent  practices  in
the Community framework, and rules of liability in cases of damage resulting from fraudulent
or negligent practices would need to be established." The idea is taken up in Section 5.1.6 of
the  Commission  Communication  "A  new  strategy  in  the  field  of  plant  health  (harmful
organisms)"  of  10 March  1987  (COM(87)  97  final):  "uniform  liability  and  financing  rules
would  be  useful.  Effect:  Increase  of  confidence  in  respect  of  plant  health  activities;  more
appropriate  distribution  of  financial  burdens,  in  the  case  of  spreading  harmful  organisms
through infected material."

For this purpose:

"solidarity"  means  that  a  Member  State  which  is  the  "victim"  of  an  emergence  of
organisms harmful to plants previously unknown on its territory may benefit from a
financial contribution from the Community to support the organism eradication and
control measures it has set in place,

– 

and

1

OJ L 169, 10.7.2000, p. 1.

2

                                                
– 

"liability"  means  that,  where  it  is  established  that  the  emergence  of  the  harmful
organism  was  caused  by  a  Member  State's  failure  to  comply  with  the  Community
plant-health regulations or standards in force, the Member State shall reimburse the
Community the costs of the plant health actions paid out under the solidarity scheme.

Making  the  Member  States  financially  liable  for  inadequate  monitoring,  inspection  and
checking was a measure thought likely to improve compliance with Community plant-health
regulations.

The initial proposal for a Council Directive COM(89) 647 final of 22 January 19902 (Proposal
for  a  Council  Directive  amending  Directive  77/93/EEC  on  protective  measures  against  the
introduction  into  the  Member  States  of  organisms  harmful  to  plants  or  plant  products)
incorporating provisions on solidarity and liability, amended by Proposal COM(91) 246 final
of 17 July 1991,3 was discussed intensively in the Council over many years and culminated in
Council Directive 97/3/EC of 20 January 19974 amending Directive 77/93/EEC5 on protective
measures against the introduction into the Community of organisms harmful to plants or plant
products and against their spread within the Community. The Directive entered into force on
30 January 1997. Member States had to implement the necessary provisions by 1 April 1998.

The provisions of Directive 97/3/EC were further specified by Commission Regulation (EC)
No 2051/97  of  20 October  1997  establishing  detailed  rules  for  the  implementation  of  the
provisions relating to the allocation of a 'plant-health control' financial contribution from the
Community,6 which set the deadlines for the submission of a solidarity dossier in a given year
in order to be taken into account for the relevant appropriations in the general budget for that
year.

Directive 97/3/EC also provided for infrastructure measures and stipulated that the details of
the  implementation  of  the  solidarity  provisions  would  be  further  specified  in  two
implementing Regulations, one on the system in general and another (optional) specifically on
"loss  of  earnings".  All  the  provisions  of  Directive  97/3/EC  were  subsequently  incorporated
into Council Directive 2002/29/EC, which is a consolidated version of Directive 77/93/EEC.

2.

ASSESSMENT OF THE IMPLEMENTATION OF THE ARTICLES

2.1.

Article 13(9) "Inspection infrastructures"

2.1.1. Description of the Article

Article 13(9) lays down general rules for the Community to award a financial contribution to
Member States in order to strengthen inspection infrastructures insofar as they relate to plant-
health checks carried out in accordance with Directive 2000/29/EC.

2

3

4

5

6

OJ C 31, 9.2.1990, p. 8.
OJ C 205, 6.8.1991, p. 16.
OJ L 27, 30.1.1997, p. 30.
OJ L 26, 31.1.1977, p. 20.
OJ L 287, 21.10.1997, p. 13.

3

                                                
"The purpose of this contribution shall be to improve the provision, at inspection posts other
than  those  at  the  place  of  destination,  of  the  equipment  and  facilities  required  to  carry  out
inspection and examination and, where necessary, to carry out the  measures provided for in
paragraph 11, beyond the level already achieved by complying with the minimum conditions
stipulated in the implementing provisions  pursuant to  paragraph  8,  fourth  subparagraph,"  of
Article 13 of Directive 2000/29/EC.

"The  Commission  shall  propose  the  entry  of  suitable  appropriations  for  that  purpose  in  the
general budget of the European Union."

"Within  the  limits  set  by  the  appropriations  available  for  these  purposes,  the  Community
contribution  shall  cover  up  to  50%  of  expenditure  relating  directly  to  improving  equipment
and facilities" (up to 70% in exceptional cases following a decision by the Council, Article 25
of Directive 2000/29/EC).

To that end, the minimum conditions for carrying out plant health checks in the Community,
at  inspection  posts  other  than  those  at  the  place  of  destination,  of  plants,  plant  products  or
other objects coming from third countries were set out in Commission Directive 98/22/EC of
15 April 1998.7

The arrangements for this operation as defined in an implementing regulation and the award
of  the  financial  contribution  as  well  as  the  amount  thereof  are  adopted  by  Commission
decision. The Member State concerned provides the information and documents necessary in
order to award  the  financial  contribution.  If necessary, investigations  may be  carried out on
the Commission's authority by the experts referred to in Article 21 of Directive 2000/29/EC.

2.1.2.

Progress with regard to the implementation of the Article

After  Directive  97/3/EC  entered  into  force,  a  series  of  draft  Commission  Regulations
establishing detailed rules for the implementation of the provisions described in Article 13(9)
resulted  in  the  adoption  of  Commission  Regulation  (EC)  No 998/2002  of  11 June  2002
establishing detailed rules for the implementation of the provisions relating to the allocation
of  a  Community  financial  contribution  for  Member  States  in  order  to  strengthen  inspection
infrastructures  for  plant-health  checks  on  plants  and  plant  products  coming  from  third
countries.8

In  particular,  the  Regulation  gives  details  of  the  administrative  rules  for  the  presentation  of
applications, the information to be provided regarding the inspection post to be equipped, the
justification and the description of the equipment/facilities to be acquired as well as a detailed
financial estimate for their procurement.

Member States must present applications for such expenditure in advance. The Commission
then examines the applications and prepares a list of applications satisfying the criteria of the
Regulation.  The  list  of  equipment/facilities  eligible  for  subsidy  is  limited  to  those  directly
required for inspection activities.

7

8

OJ L 126, 28.4.1998, p. 26.
OJ L 152, 12.6.2002, p. 16, as rectified by OJ L 153, 13.6.2002, p. 18 (corrigendum).

4

                                                
The  spending  programmes  found  eligible  are  then  ranked  according  to  their  added  value,
prioritising  inspection  posts  which  need  to  be  significantly  restructured  and  those
recommended  for  improvement  following  an  inspection  visit  by  the  Food  and  Veterinary
Office (FVO). The final list of programmes eligible for subsidy is presented to and discussed
within the Standing Committee on Plant Health (SCPH).

It  should  be  noted  that  the  Council  has  not  as  yet  defined  the  cases  for  which  the  financial
contribution referred to in Article 13(9) may be as much  as 70%  of the  eligible  expenditure
(Article 25 of Directive 2000/29/EC).

€100 000-200 000 per annum  are  allocated to this action at present. The  enlargement of  the
European Union is expected to add to the need for resources in this area.

Exceptionally  for  2002,  the  Regulation  stipulated  that  Member  State  applications  must  be
submitted by 15 July at the latest. The Commission has received four applications, which are
currently being examined.

2.2.

Articles 22 and 23 ("Solidarity")

2.2.1. Description of the Articles

2.2.1.1. Principle

Article 22  stipulates  that  "in  the  event  of  the  actual  or  suspected  appearance  of  a  harmful
organism as a result of its introduction or spread within the Community, Member States may
receive  a  "plant-health  control"  financial  contribution  from  the  Community  pursuant  to
Articles  23  and  24  to  cover  expenditure  relating  directly  to  the  necessary  measures  which
have been taken or are planned for the purpose of combating that harmful organism in order
to eradicate or, if that is not possible, contain it. The Commission shall propose the entry of
suitable appropriations for that purpose in the general budget of the European Union."

In  order  to  receive  the  Community  financial  contribution,  the  Member  State  must  have
notified  the  appearance  of  the  harmful  organism  in  question,  whether  or  not  listed  in
Annexes I and II of Directive 2000/29/EC.

A further condition is that the organism "constitutes an imminent danger for all or part of the
Community due to its appearance in an area where the organism had either not been known to
occur  previously  or  had  been  or  was  being  eradicated,  and  was  introduced  into  that  area
through  consignments  of  plants,  plant  products  or  other  objects  from  a  third  country  or
another area of the Community."

2.2.1.2. The "necessary measures" referred to in Article 22

The necessary measures (see Article 23(2) of Directive 2000/29/EC for further details) may,
for example, consist of:

(a)

(b)

(c)

destruction or disinfection,

inspections or testing,

prohibitions or restrictions in respect of use.

5

For the measures covered by indents (a) and (b) of the Article referred to in paragraph 2.2.1.2,
the financial contribution covers the expenditure paid from public funds and compensation for
financial losses other than loss of earnings. Financial losses may include the depreciation and
maintenance for machinery and premises, farm rents, taxes, penalties for breach of contract,
etc., provided that such losses are not covered by income from an alternative crop. They may
be actual or estimated costs. If estimated, a detailed calculation method must be provided.

For the measures  covered by  indent  (c)  of  the  Article  an  implementing  Regulation  may,  by
way of derogation, specify cases in which compensation for loss of earnings  (arising  due  to
prohibitions or restrictions and directly related to the sale of products  and net farm income)
shall  be  considered  to  be  expenditure  directly  relating  to  necessary  measures  subject  to  the
time  limits  applicable  to  those  cases,  up  to  a  maximum  of  three  years.  The  cases  where
derogations may apply have not yet been defined.

The interpretation of the concept of public funds has been much debated. Public funds, for the
purposes of the solidarity legislation, can be considered State resources that do not necessarily
have to come direct from the national budget, but may come via an intermediary, which could
be  a  producers'  association,  under  certain  conditions.  Expenditures  made  by  producer
associations  may  be  considered  as  being  from  public  funds,  if  the  said  associations  have
undertaken eradication measures according to the instructions of the plant health authorities,
and are funded from the State budget, a parafiscal levy or a compulsory contribution from all
producers  in  a  specific  sector  or  zone.  Where,  on  the  other  hand,  an  association  is  funded
from the resources of its members and  membership is not compulsory, public funds  are  not
involved.

Under no circumstances are the regular running costs of the official body concerned (the plant
protection service) covered.

The  commercial  value  of  the  destroyed  material  (i.e.  material  infected  or  suspected  to  be
infected) originating from the consignment and the reduced income resulting from its disposal
or processing are not eligible for reimbursement.

2.2.1.3. Submission of a dossier

In  order  to  qualify  for  the  financial  contribution  from  the  Community,  the  Member  State
concerned must apply to the Commission within a  specified  time  limit  ("at  the latest before
the end of the calendar year following that in which the appearance of the harmful organism
was  detected").  The  Commission  and  the  other  Member  States  receive  all  the  necessary
information (Article 23(4)) regarding the dossier. The Member State presenting an application
also  specifies  the  necessary  measures,  the  timetable  for  them,  the  results  obtained  and  the
actual or estimated cost of the expenditure incurred or  to be incurred, and the proportion of
such expenditure covered from public funds.

The  Community  financial  contribution  is  awarded  in  the  same  way  as  the  infrastructure
expenses by one or more Commission Decisions, taking account of the danger represented by
the  harmful  organism  concerned.  It  covers  up  to  50%,  and  in  the  case  of  compensation  for
loss  of  earnings  up  to  25%,  of  the  expenditure  directly  associated  with  the  necessary
measures.

6

2.2.1.4. Allocation of funds

The  necessary  measures  should  be  taken,  or  planned  to  be  taken,  within  a  period  not  more
than two years after the date when the appearance of the harmful organism is  detected.  The
period may be extended if examination of the situation concerned leads to the conclusion that
the objective of the measures will be achieved within a reasonable additional period. In that
case,  the  financial  contribution  from  the  Community  will  be  degressive  over  the  years
concerned.  Special  arrangements  have  been  laid  down  in  respect  of  measures  to  protect
Community territory other than that of the Member State concerned.

The  Member  State  concerned  will  reimburse  the  Community  for  all  or  part  of  the  amounts
paid  to  it  if,  for  example,  the  necessary  measures  were  not  implemented  or  were  not
compliant.  Similarly,  the  contribution  will  cease  to  be  paid  if  the  measures  are  deemed  no
longer necessary.

2.2.2.

Progress with regard to the implementation of the Articles

2.2.2.1. Developments in the available budget 1997-2002

The  Commission  started  receiving  the  first  applications  for  budget  allocations  to  fund
solidarity  measures  in  1997.  Examination  of  the  first  solidarity  dossiers  began  in  February
1999.  It  was  not  therefore  possible  to  use  the  budget  sums  available  for  1997  and  1998
(€400 000 per year).

From  1999  to  2001,  57  dossiers  were  submitted  and  examined.  A  series  of  Commission
Decisions have been  adopted  awarding the Community financial  contribution  in  the  case  of
eligible dossiers, the latest being Commission Decision 2001/811/EC of 21 November 2001.9
A total of €1 654 513  has been paid out. The budget  allocated  has  increased  gradually  over
the years, as is shown in Table 1.

Table 1: Growth of the available budget (currently budget line B1-333)

Year

1997

1998

1999

2000

2001

2002

Total

Budget available (€)

400 000

400 000

300 000

500 000

900 000

1 300 000

3 800 000

9

OJ L 306, 23.11.2001, p. 25.

7

                                                
2.2.2.2. Procedure for the award of the financial contribution

It is extremely important that  dossiers  are  compiled properly.  To facilitate  that task,  a  great
deal  of  work  has  been  put  into  drawing  up  guidelines  (several  updated  versions  have  been
published). The guidelines comprise a number of sections. First, the general eligibility criteria
for a dossier are  explained and clarified. Particular emphasis is placed on the existence of a
trade pathway behind the appearance of the harmful organism. The admissible duration of the
measures is also mentioned. Details of how to compile the dossier are given, and the technical
annexes to be attached are specified. Examples of background information that may help the
assessment of the dossier are given. A summary of the eligible "necessary measures" is then
given. The concept of  "public funds"  is explained. One section is also devoted  to clarifying
the  concept  of  "payments"  under  the  various  types  of  measure  concerned  (destruction  and
disinfection,  inspection  and  testing,  compensation  for  financial  losses  other  than  loss  of
earnings). Detailed instructions are given for the presentation of the financial annexes of the
dossier,  which  are  a  key  element  in  determining  any  appropriate  Community  financial
contribution.  Finally,  the  guidelines  include  model  documents  for  the  presentation  of  the
dossier  such  as  the  application  form,  financial  table  and  other  useful  information  such  as
glossaries of technical terms and the NUTS categories (Nomenclature of Territorial Statistical
Units, to help map the area where the outbreak occurred).

Dossiers  found  to  be  complete  are  then  examined  in  specific  working  groups  within  the
Standing Committee on Plant Health (SCPH). During the first half  of  the  calendar  year, the
working group determines which dossiers are eligible to receive a financial contribution. The
financial contributions for the various dossiers are then calculated according to the available
budget,  taking  any  applicable  degressive  principles  into  account  (at  present,  the  degressive
rules  are  not  established  by  legislative  act).  All  these  elements  are  incorporated  in  a  draft
Commission decision which is submitted Standing Committee on Plant Health for its opinion.
After the draft has obtained a favourable  opinion  and the Decision has been  adopted  by  the
Commission, the financial contributions are paid to the Member States forthwith.

Commission Regulation (EC) No 2051/97 of 20 October 1997 establishing detailed rules for
the  implementation  of  the  provisions  relating  to  the  allocation  of  a  'plant-health  control'
financial  contribution  from  the  Community  gave  only  a  few  details  in  respect  of  the
submission of dossiers, particularly in terms of form and deadlines. Experience of examining
the  dossiers  showed  that  the  provisions  of  the  Regulation  required  further  clarification.
Consequently,  in accordance  with the fifth indent of Article 23(5)  of  Directive  2000/29/EC,
an implementing Regulation, Commission Regulation (EC) No 1040/2002 of 14 June 200210
establishing detailed rules for the implementation of the provisions relating to the allocation
of  a  financial  contribution  from  the  Community  for  plant-health  control  and  repealing
Regulation (EC) No 2051/97,  was  adopted.  It  will  be  applicable  to  dossiers  submitted  as  of
2003.

10

OJ L 157, 15.6.2002, p. 38.

8

                                                
The  Regulation  gives  details  of  the  information  to  be  included  in  the  dossier:  general
information  on  the  appearance  of  the  relevant  harmful  organism,  notification  in  accordance
with Directive 2000/29/EC, the measures which have been taken or are planned, including the
statutory notice of same by Member State agencies and the identification of the consignment
which  gave  rise  to  the  contamination.  Details  of  the  amounts  paid  or  to  be  paid  are  also
required,  indicating  the  proportion  contributed  from  public  funds.After  examining  the
dossiers,  the  Commission  services  draw  up  a  list  ranking  the  dossiers  according  to  specific
priorities: protecting the interests of the whole Community, the higher probability of efficacy
and  information  regarding  the  identity  of  the  consignment.  Only  dossiers  for  eligible
expenditure  of  at  least  €50 000  will  be  considered.  As  in  the  case  of  the  Regulation  on
inspection  infrastructures,  the  list  of  the  dossiers  selected  is  approved  by  decision  of  the
Commission.

Moreover,  there  is  as  yet  no  legal  framework  for  the  "loss  of  earnings"  (the  last  indent  of
Article 23(3) of Directive 2000/29/EC) as the relevant "cases" have not yet been defined.

2.2.2.3. On-the-spot checks

An inspection visit was carried out in Portugal by the department responsible for examining
the dossiers (DG SANCO E.1) in order to assess the solidarity dossier on brown rot in various
Solanaceae in that country. There may be a need for this type of inspection visit to be carried
out  more  frequently  in  future.  (They  are  not  the  same  as  the  Food  and  Veterinary  Office
inspections  under  Article 16(3)  of  Directive  2000/29/EC.)  The  inspectors  check  documents
and  verify  the  conformity  and  eligibility  of  the  expenditure.  In  future,  the  evaluation  teams
will  be  made  up  of  representatives  of  SANCO  E.1  and  of  the  unit  in  charge  of  budget
management (DG SANCO A.3).

2.2.3.

Statistical data on solidarity dossiers

The  following  tables  give  a  more  detailed  picture  of  the  solidarity  dossiers  processed  since
1999.  Table 2  shows  the  Decisions  published  since  1999  awarding  financial  contributions.
Since 2000, the various financial contributions relating to solidarity have been encapsulated in
a single annual Commission Decision.

Table 2: List of Decisions published since 1999

Budget for the year

Decisions

1999

2000

2001

5 (2000/34/EC to 2000/38/EC)11

1 (2001/14/EC)12

1 (2001/811/EC)

11

12

OJ L 12, 18.1.2000, p. 26; OJ L 12, 18.1.2000, p. 28; OJ L 12, 18.1.2000, p. 30; OJ L 12, 18.1.2000,
p. 32; OJ L 12, 18.1.2000, p. 34.
OJ L 4, 9.1.2001, p. 25.

9

                                                
Table 3 shows the statistics for dossiers presented during the period in consideration.

Table 3: Number of dossiers presented / approved

Dossiers
presented

Dossiers
approved

Budget
available

Budget
used

Percentage
of budget
used

Percentage
of the
financial
contribution
(*) (**)

24

21

12

57

17

18

10

45

300 000

296 610

500 000

497 481

900 000

860 422

1 700 000

1 654 513

98.9

99.5

95.6

97.3

40

19

50

--

Year

1999

2000

2001

Total

(*)

(**)

Financial contribution divided by the total eligible expenditure. There is normally one dossier for each
year of an eradication programme.

The  percentages  given  in  the  Table  refer  to  dossiers  covering  at  most  two  years.  Applying  the
degressive principle, as of the third year programmes receive a 50% less contribution

Trends in 2002

The Member States have submitted seven dossiers for the year 2002, with a total expenditure
of approximately €3 100 000.

Table 4 shows the details of dossiers per Member State. Of the seven Member States which
have  already  submitted  dossiers,  Portugal,  Spain  and  France  are  the  countries  receiving  the
greatest  financial  contribution.  This  observation  must  be  weighed  against  the  number  of
dossiers submitted in a given year, their financial value and the budget available annually.

10

Table 4: Breakdown of solidarity payments according to Member State, and total annual
contributions

Member
State

1999

2000

2001

Dos.
Pr.
(*)

6

9

2

0

6

0

2

25

B

L

D

E

F

IRL

I

NL

A

P

FIN

S

UK

DK

EL

Total

Dos.
Acc (*)

Amount
allocated

Dos.
Pr.

Dos.
Acc.

Amount
allocated

Dos.
Pr.

Dos.
Acc.

Amount
allocated

3

9

2

0

1

0

17 892

89 972

18 365

0

137 819

0

9

1

5

1

4

0

9

1

5

1

2

0

161 273

26 899

5 168

17 103

287 038

0

0

0

1

1

7

3

0

0

0

1

7

2

0

0

0

71 375

732 624

56 423

2

32352

0

0

0

0

0

0

17

296 610

21

18

497 481

12

10

860 422

(*)

Dos. Pr. = dossiers presented, Dos. Acc. = dossiers accepted.

11

Graph 1  and Table 5  give  further  information  per  Member  State  regarding  the  contributions
paid  since  1999.  Graph 1  illustrates  the  amounts  shown  in  Table 4  in  another  form,  while
Table 5 shows the amounts per Member State and per disease.

Graph 1: Total contribution per Member State (€)

1400000

1200000

1000000

800000

600000

400000

200000

0

B

L

D

E

F

IR

I

NL

A

P

F

S

UK

DK

GR

12

Table 5: Breakdown of contributions per Member State and per harmful organism

Member State

Austria

Spain

Spain

Spain

Spain

Finland

Finland

France

France

France

France

Greece

Greece

Italy

Portugal

Portugal

Portugal

Harmful
organisms
inspected

Erwinia
amylovora

Erwinia
amylovora

Rhynchophorus
ferrugineus

Ralstonia
solanacearum

Clavibacter
michiganensis
sepedonicus

Plants affected

Year

Maximum
Community
contribution (€)

Apple trees,
pear trees, other
Rosaceae

Apple trees,
pear trees, other
Rosaceae

1998-1999

88 478

1996-2000

78 407

Palm trees

1996-2000

86 338

Potatoes

1996-1997

Potatoes

1996-1997

5 644

8 806

16 606

39 817

Liriomyza trifolii Gerbera

Tomato  Spotted
Wilt Virus

Gerbera,
Amaryllis,
Chrysanthemum

1999

1999

Clavibacter
michiganensis
sepedonicus.

Globodera
pallida,
G.rostochiensis

Xanthomonas
axonopodis

Clavibacter
michiganensis
sepedonicus and
Globodera spp.

Ralstonia
solanacearum

Clavibacter
michiganensis
sepedonicus

Ralstonia
solanacearum

Potatoes

1997-1999

5 437

Potatoes

1997-1999

3 821

Anthurium

1997-1999

80 714

Potatoes

1997

26 899

Potatoes

1997-1998

1 467

Potatoes

1997-1998

30 885

Potatoes

1995-1999

23 533

Bursaphelenchus
xylophilus

Pinus

Potatoes,
tomatoes 
peppers

Tomatoes

and

Ralstonia
solanacearum

Tomato  Spotted
Wilt Virus

Tomato  Yellow
Leaf Curl Virus

1999-2000

425 124

1996-2000

271 319

1996-2000

461 038

Total financial participation

€ 1 654 513

13

Table 6  gives  an  overview  of  the  solidarity  contributions  according  to  the  crops  affected.
Solanaceae  (potatoes,  tomatoes,  peppers)  account  for  50.7%  of  all  solidarity  contributions.
Another significant item is the outbreak of pinewood nematode in Portugal.

Table 6: Breakdown of contributions paid according to plants affected

Crop affected

Amount allocated

% of total 1999-
2001 financial
contribution

Potatoes

Tomatoes

Potatoes, tomatoes
and peppers

Conifers: Pinus

Apple trees, pear
trees, various
Rosaceae

Ornamentals

Palm trees

106 492

461 032

271 319

425 124

166 885

137137

86 338

6.4

27.9

16.4

25.7

10.1

8.3

5.2

2.2.4. Observations

The solidarity system is a recent development. It is no easy matter to draw conclusions from
just  three  to  four  years'  statistics  since  the  results  for  every  additional  year  add  yet  another
dimension.  It is  still  too early to conclude,  for example, that solidarity is of  interest only  to
specific countries, especially as other Member States are now submitting dossiers.

It is essential that Member States prepare their dossiers correctly so that the Commission can
optimise  the  time  taken  to  assess  them.  This  is  even  more  important  when  it  comes  to
evaluating the financial evidence produced in support of a dossier. The thorough examination
of the dossier should be complemented by on-the-spot checking by the Commission services
responsible for processing the dossiers and managing the budget (see section 2.2.2.3).

In order for a dossier to be accepted, the appearance of the harmful organism must first have
been  properly  notified  (Article  23(1)  of  Directive  2000/29/EC).  To  avoid  disputes  as  to  the
form that this notification should take, it is worth clarifying that the notification referred to in
paragraph  1  and  the  first  indent  of  paragraph  2  of  Article 16  of  the  Directive  must  be  in
writing,  even  though  the  use  of  the  term  "notification"  and  the  context  in  which  it  is  used
support the strict legal interpretation.

It is further recommended that the evaluation of dossiers by working groups be carried out by
independent experts, i.e. not members of the national plant protection services submitting the
dossiers.

Although a number of the decisions already published take degressive principles into account,
it  is  not  always  possible  to  implement  such  rules  in  a  completely  clear  way.  For  example,
even if a degressive percentage is applied between the payment for year 2 and that for year 3,
the  payment  for  year  3  is  still  likely  to  be  more  than  for  year  2  if  year 3  expenditure  is
considerably greater than the year 2 amount.

14

Further  examination  of  the  practical  application  of  the  concepts  of  "loss  of  revenue"  and
"financial losses" is required. At present, few Member States have submitted dossiers with a
"financial losses other than loss of earnings" or "loss of earnings" component.

2.3.

Article 24 ("Liability")

2.3.1. Description of the Article

The Commission must investigate the background to the appearance of the harmful organism
which has given rise to the granting of the financial contribution under the solidarity scheme.
It  must  in  particular  consult  various  information  sources  (the  Member  State  where  the
outbreak originated, Community inspections, etc.) to investigate why the non-compliance of
the  consignments  (plants,  plant  products  or  other  objects)  with  the  terms  of  Directive
2000/29/EC  was  not  detected  by  the  Member  State  of  origin.  This  will  enable  any
shortcomings in the Community Plant Health Regime to be identified and rectified.

It will also make it possible to assess whether the "victim" Member State failed to fulfil any of
its obligations under the Community Plant Health Regime. If this is the case, "the Community
financial contribution shall not be allocated to that Member State or, if already allocated, shall
not be paid or, if already paid, shall be refunded to the Community."

If  the  assessment  shows  that  the  appearance  of  the  harmful  organism  was  caused  by  a
Member State's failure to comply with the Community plant-health regulations or standards in
force, the Member State has to reimburse the Community the costs of the plant health actions
paid out under the solidarity scheme.

The concept of liability has been introduced into the system as a sort of "financial constraint"
to  improve  levels  of  compliance  with  Community  legislation  for  the  monitoring,  inspection
and checking measures set in place by Member States.

2.3.2.

Progress with regard to the implementation of the Article

The  Commission  services  started  to  assess  liability  at  the  beginning  of  2000.  There  were
various  proposals  as  to  how  this  task  should  be  carried  out.  The  planned  stages  were  as
follows:

Stage  1:  The  Commission  examines  each  solidarity  case.  All  available  documents  are
examined: the initial dossier from the Member State and additional information, reports and
memos  from  the  national  Plant  Protection  agencies,  and  the  results  of  investigations  in  the
"victim" Member State. This stage has been initiated for 16 dossiers, each of which resulted in
a preliminary assessment of liability.

Stage  2:  Following  the  preliminary  assessment  of  liability,  a  letter  is  sent  to  the  Member
States which either received or were at the origin of the infected material. Eight such letters
have been sent to Member States.

Stage 3: Answers from the Member States to the Commission. Answers have been received to
each of the eight letters sent.

15

Stage 4: On-the-spot inspection visits by the Commission, if necessary, when the information
received  is  deemed  incomplete.  The  liability  inspections,  like  the  solidarity  inspections,  are
distinct from Food and Veterinary Office inspections. The inspection teams will be made up
of  representatives  of  SANCO  E.1  and  of  the  unit  in  charge  of  budget  management
(DG SANCO A.3), assisted, if necessary, by representatives of the legal services.

Stage 5: The Commission and the Standing Committee on Plant Health (SCPH) examine the
information received in the course of the four previous stages in order to identify any failings
in  the  Community's  plant-health  regulations  or  their  implementation  and  to  remedy  those
failings  (the  first  indent  of  Article  24(2)  of  Directive  2000/29/EC).  At  this  stage,  the
Commission  draws  up  a  general  report  with  a  preliminary  assessment  of  liability,  for
discussion in the SCPH.

Stage 6: On its own responsibility, the Commission determines, in the light of the information
available, whether a Member State has failed to meet one of its obligations under the Treaty
and  under  the  provisions  of  Directive  2000/29/EC  (second  indent  of  Article 24(2)  of
Directive 2000/29/EC). At this stage, it must be considered whether this failure is accidental
and whether the non-compliance has been made good or is still effective.

Stage 7:  If  necessary,  the Commission services  ask for  the  financial  contributions  under  the
solidarity scheme to be reimbursed by either the "victim" Member State or the Member State
found liable. This procedure does not preclude the possibility of the Commission's instigating
infringement proceedings, where necessary, pursuant to Article 226 of the Treaty.

The Commission has already completed Stages 1 to 3 in a number of cases. This action must
be continued and extended. This will be one of the priority tasks for the second half of 2002.

The  work  carried  out  thus  far  shows  that  Member  State  liability  is  not  easy  to  determine
insofar  as  it  is  difficult,  on  occasion,  to  trace  the  origin  of  the  appearance  of  a  harmful
organism. This is particularly true when the precise origin of the infected material is unknown
or when the harmful organism makes its effects felt only years after being introduced.

3.

SUMMARY,  CONCLUSIONS  AND  SUGGESTIONS  OF  THE  COMMISSION  REGARDING
THE APPLICATION OF ARTICLES 13(9) AND 22 TO 24 OF DIRECTIVE 2000/29/EC

3.1.

Inspection infrastructures

Commission  Regulation  (EC)  No  998/2002,  adopted  on  11 June  2002,  provides  for  the
funding  of  dossiers  submitted  by  the  Member  States  with  a  view  to  improving  plant-health
inspection infrastructures.

No  suggestions  can  be  made  as  yet  for  amendments  to  the  legislation  in  force,  given  our
limited experience in this area. The Commission is committed to assessing results as soon as
the measure is applied.

16

3.2.

Solidarity

A  Regulation  has  been  adopted  (Regulation  (EC)  No 2051/97).  The  practical  experience
gained from running the system for four years has led to the Regulation's being significantly
amended  by  Regulation  (EC)  No 1040/2002,  which  further  clarifies  and  facilitates  the
submission of dossiers by Member States and improves the procedures for their assessment.

Several updated versions of the guidelines to assist Member States in preparing dossiers have
been published. The Commission will continue to improve them.

To  avoid  disputes  as  to  the  form  that  the  notification  referred  to  in  Article 23(1)  of
Directive 2000/29/EC  should  take,  it  is  worth  clarifying  that  the  notification  referred  to  in
paragraph  1  and  the  first  indent  of  paragraph  2  of  Article  16  of  the  Directive  must  be  in
writing.

Very few dossiers to date have been presented by the Member States for "loss of earnings".
The Commission consequently has very little practical experience in this area.

On-the-spot inspection visits will be carried out to complete the examination of dossiers.

3.3.

Liability

The work already under way on establishing liability will be continued. The Commission will
draw conclusions based on the results obtained and will make the appropriate proposals.

17